Preview Newsletter
ACC AM 8/24/16
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(ACC Mentioned) Nothing Is Certain
Aug 23, 2016 | Plastic News
By Bill Bregar
Business hates uncertainty. Everybody knows that. Well, for months, Heavy Metal has been wondering when the prospects of President Donald Trump — the grand kahuna of every-time-he-opens-his mouth uncertainty — impacts the economy. -
New TSCA Small Firm Definition May Apply to Nanoscale Rule
Aug 24, 2016 | BNA Daily Environment Report
By Pat Rizzuto
The Environmental Protection Agency shouldn't alter its traditional definition of small businesses in an anticipated final data collection rule for nanoscale chemicals due to the amended Toxic Substances Control Act, an industry attorney told Bloomberg BNA. -
First Two New Use Rules Proposed Under Amended Chemicals Law
Aug 24, 2016 | BNA Daily Environment Report
By Pat Rizzuto
The Environmental Protection Agency will propose long-awaited significant new use rules for two chemicals used in the production of other compounds in the Aug. 24 Federal Register. -
Colorado Anti-Fracking Measures Called ‘Sledgehammer'
Aug 24, 2016 | BNA Daily Environment Report
By Tripp Baltz
Two proposed anti-hydraulic fracturing measures headed for the November ballot in Colorado would take a “sledgehammer approach” to regulation of the oil and gas industry in the state, the state's top drilling regulator said. -
Anti-Drilling Initiatives Potentially 'Devastating' to Colorado Oil, Gas Industry, Say Experts
Aug 23, 2016 | Natural Gas Intelligence
By Carolyn Davis
Two measures that may be on the Colorado ballot this November likely would harm not only the state's oil and gas industry but have unintended consequences for citizens, industry experts said Tuesday in Denver. -
Local Control on Drilling Becoming Bigger Issue in Southern California
Aug 23, 2016 | Natural Gas Intelligence
By Richard Nemec
While Colorado remains the focal point for local government seeking more control of oil/natural gas drilling, the issue has also found its way to Los Angeles. The nation's second-largest city still can count dozens of active drilling sites, none more controversial than one operated by Phoenix-based Freeport-McMoRan. -
Top Energy Adviser Says Donald Trump Is Solidly Behind Fracking
Aug 23, 2016 | The Wall Street Journal
By Amy Harder
Donald Trump’s top energy adviser on Tuesday sought to play down the GOP presidential candidate’s recent comments that he could support local efforts to ban hydraulic fracturing. -
North Dakota Says Lack Of Risk Finding Undermines Oil & Gas Methane Rule
Aug 23, 2016 | Inside EPA
By Bridget DiCosmo
North Dakota plans to argue that a federal appeals court should scrap EPA's first-time rule to curb the greenhouse gas (GHG) methane from the oil and gas sector because the agency did not issue a finding that the industry's methane emissions endanger human health and welfare, calling it a necessary step under the Clean Air Act (CAA). -
Protect Workers From Harmful Chemicals, Advocates Urge EPA
Aug 24, 2016 | BNA Daily Environment Report
By Pat Rizzuto
The Environmental Protection Agency should use the new authorities under the amended Toxic Substances Control Act to protect workers and other at-risk groups, advocates say. -
U.S. Sen. Blumenthal to Metro-North: Expedite PTC
Aug 23, 2016 | Progressive Railroading
U.S. Sen. Richard Blumenthal (D-Conn.) yesterday urged MTA Metro-North Railroad to end delays in implementing positive train control (PTC) and confirm that it will meet a December 2018 deadline to install the technology. -
Industries Reject Boiler Ruling Precedent For 'SIP Call' Suit
Aug 23, 2016 | Inside EPA
A broad coalition of industry groups is rejecting EPA's claim that a recent appellate ruling scrapping part of the agency's boiler maximum achievable control technology (MACT) air toxics rule's standards undermines the coalition's challenge to a rule forcing states to scrap emissions limit exemptions for industrial facilities. -
California's Climate Change Law Clears A Big Hurdle After Lobbyists Crank Up Pressure
Aug 24, 2016 | Los Angeles Times
By Chris Megerian, Melanie Mason and Liam Dillon
A controversial measure to extend California’s target for reducing greenhouse gas emissions was approved by the Assembly on Tuesday, clearing a major hurdle in a battle at the Capitol over the future of the state’s environmental programs. -
California Assembly Approves Climate Change Bill
Aug 24, 2016 | The Hill - E2 Wire
By Devin Henry
California lawmakers have broadened the state’s goals to reduce greenhouse gas emissions. -
As Energy Use Rises, Corporations Turn to Their Own Green Utility Sources
Aug 23, 2016 | The New York Times
By Diane Cardwell
The words are stenciled on the front of the AppleStore, a glass box sandwiched between a nondescript Thai restaurant and a CVS pharmacy in downtown Palo Alto: “This store runs on 100 percent renewable energy.” -
EPA Sets December 2021 Target For Most Areas To Attain PM2.5 NAAQS
Aug 23, 2016 | Inside EPA
By Stuart Parker
EPA is setting a December 2021 target for most parts of the country to attain its 2012 fine particulate matter (PM2.5) national ambient air quality standard (NAAQS) of 12 micrograms per cubic meter (ug/m3), although some areas with worse levels of PM2.5 could have until December 2025 to cut emissions and comply with the standard.
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(ACC Mentioned) Nothing Is Certain
Aug 23, 2016 | Plastic News
By Bill Bregar
Business hates uncertainty. Everybody knows that. Well, for months, Heavy Metal has been wondering when the prospects of President Donald Trump — the grand kahuna of every-time-he-opens-his mouth uncertainty — impacts the economy.
It’s happened. The Wall Street Journalreported Aug. 12 that most economists in its survey now believe uncertainty from the November election is hitting economic activity.
Mainly, up to this point in history, uncertainty about a coming top-leader election has impacted the economy in developing countries, like those in Latin America. But in the United States? Not really. The establishment Democrats are not that different from the establishment Republicans.
Those were the days! Now we have Hillary Clinton, who has mind-numbing plans and details for meeting every single social need — (and she’ll solve terrorism too!) — and Trump the billionaire, winging it and saying crazy-sounding things.
The WSJ quotes Kevin Swift, chief economist at the American Chemistry Council, saying: “This election introduces a Mount Everest of uncertainty.”
I cover the machinery beat here at Plastics News. I have asked quite a few people the question: This right now is big-time uncertainty — Obama liberal wonderland II or a man that seems unhinged more every single day? I run this by my machinery sources: If I owned a plastics factory, and was going to invest in five pieces of machinery this year, I probably would say, let’s just hold off until after the election.
And the Journal reports that business investment has been weak. “At the heart of businesses’ uncertainty is the question of what government policy changes might occur,” the newspaper reported.
So how does this shake out in the plastics machinery arena? The answer is it depends on what sector. For injection molding machinery — serving about three-fourths of the plastics industry, observers say — people have been telling me that any uncertainty about Clinton vs. Trump isn’t really hurting sales. Why? Because the days are long past when a molder would buy machines in advance for expected business. Now they want the presses when they have the business signed up.
And then they need the injection presses ASAP if not yesterday.
So as long as Americans consume products, companies will need to do capital spending on injection molding machines. And I suspect this truism holds for the other types of plastics processing machinery — maybe to a lesser extent, but still….
Economic growth is pretty stagnant. But jobs are getting created. Is the sky falling, as Trump intones, or is everything great but we need more government ala Hillary, and Bill says so too?
I hope Trump calls me out as a member of the “disgusting and corrupt media.” I want to hear Donald Trump say the words “Plastics News.”
http://www.plasticsnews.com/article/20160823/BLOG05/160829970/nothing-is-certain
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New TSCA Small Firm Definition May Apply to Nanoscale Rule
Aug 24, 2016 | BNA Daily Environment Report
By Pat Rizzuto
The Environmental Protection Agency shouldn't alter its traditional definition of small businesses in an anticipated final data collection rule for nanoscale chemicals due to the amended Toxic Substances Control Act, an industry attorney told Bloomberg BNA.
Jamie Conrad, an attorney with Conrad Law & Policy Counsel, said Aug. 22 that the requirement under the Frank R. Lautenberg Chemical Safety for the 21st Century Act that the EPA reconsider its definition of small businesses is relevant to a data collection rule for nanoscale chemicals that the EPA proposed in April 2015 (80 Fed. Reg. 18,330).
The Lautenberg Act requires the EPA within six months to consult with the Small Business Administration and determine whether the environmental agency's definition of small business—set in 1986—should be updated. If the agencies decide an update is needed, the EPA would accomplish that through notice and comment rulemaking.
Annual Sales Below $4 Million
The data-collection rule proposes to define small businesses as those with annual sales below $4 million. A company's production volume wouldn't be factored into the agency's consideration of whether the company is small, the agency proposed, seeking comment on that definition.
That proposed definition is different from what the agency typically uses, Conrad said. Traditionally the EPA's chemicals office defines a small business as one with annual sales of less than $40 million.
If a chemical is produced in or imported into the U.S. at one site in a volume greater than 100,000 pounds, however, then the annual sales of that company must be less than $4 million to qualify as a small business, Conrad said.
Conrad, who advises the Society for Chemical Manufacturers and Affiliates, better known as SOCMA, said that organization has concerns about the agency's proposed nanoscale data collection rule. The society represents manufacturers of small batches of chemicals, including nanoscale chemicals.
Opposes Changing Definition
Putting those concerns aside, however, the changes Lautenberg made to TSCA mean the agency shouldn't issue a final data-collection rule that changes the definition of small business, Conrad said. The agency must first complete its review of the adequacy of its small business definition and then, if necessary, update that, he said.
The spring 2016 regulatory agenda said the EPA plans to issue a final nanoscale chemicals data-collection rule in October. The agency, however, hasn't submitted that final rule to the White House's Office of Management and Budget, which typically takes 90 days or longer to review regulations.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=96218745&vname=dennotallissues&fn=96218745&jd=96218745
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First Two New Use Rules Proposed Under Amended Chemicals Law
Aug 24, 2016 | BNA Daily Environment Report
By Pat Rizzuto
The Environmental Protection Agency will propose long-awaited significant new use rules for two chemicals used in the production of other compounds in the Aug. 24 Federal Register.
The two chemicals, known generically as hydrochlorofluoropropane and hydrochlorofluoropropene, will be used as site-limited, isolated and recycled intermediates, meaning the two molecules are used to make other chemicals and contained in separate equipment. The EPA accepted as justified the manufacturer's request to keep confidential its identity and the Chemical Abstracts Service identification numbers of the chemicals.
These types of rules typically don't affect many companies, but these are likely to spur interest as they are the first significant new use rules, or SNURs, the agency has proposed since the Toxic Substances Control Act was amended June 22 by the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Pub. L. No. 114-182).
As EPA implements the amended TSCA, industry and environmental health advocates have told Bloomberg BNA they will be looking for details such as the types of information the EPA will post in the docket on its decision-making that will become available Aug. 24. Comments on the proposed rules are due Sept. 23.
Possible Lethality Among Rules’ Triggers
The EPA issued on Aug. 12 consent orders for each chemical as authorized by Section 5(e) of TSCA. That means the agency determined the chemicals may present an “unreasonable risk.”
Based on toxicity test data the agency reviewed, the EPA said it's concerned that high, short-term exposure to either chemical could cause harm, or even death. The agency's concerns may explain why it has taken the EPA—which normally completes new chemical reviews in 90 days—more than two years to complete its review of the two compounds. The manufacturer submitted pre-manufacture notices, called PMNs, for both chemicals on Feb. 10, 2014, according to a notice the EPA published Sept. 16, 2014 (79 Fed. Reg. 55,450).
To prevent that, the EPA required the manufacturer to manage potential risks by using: engineering controls to limit air emissions of the chemicals; impervious gloves; specified respirators; and “no predictable or purposeful release” of the chemicals into U.S. waters resulting in surface water concentrations exceeding eight parts per billion.
The proposed new use rules would impose these same controls on any other manufacturer or processor of the chemicals. The rules do that by declaring any manufacture or use of the two chemicals that wouldn't be done without the same controls to be a “new use” requiring agency approval. At least 90 days before making or using the chemical in a new way, the manufacturer would have to file a significant new use notice with the EPA. The agency would then review the proposed new use and determine whether additional controls are needed.
The proposed new use rules illustrate a type of control over chemicals used in the workplace that the EPA has long exercised. The possibility that the agency may expand its oversight of chemicals used in the workplace is stirring debate (See related story).
The proposed SNURs also would trigger import and export notification requirements, with the requirement for export notifications going into effect Sept. 23.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=96218744&vname=dennotallissues&fn=96218744&jd=96218744
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Colorado Anti-Fracking Measures Called ‘Sledgehammer'
Aug 24, 2016 | BNA Daily Environment Report
By Tripp Baltz
Two proposed anti-hydraulic fracturing measures headed for the November ballot in Colorado would take a “sledgehammer approach” to regulation of the oil and gas industry in the state, the state's top drilling regulator said.
“Regulating a complex and sophisticated industry with ballot measures to amend the state constitution just does not make a lot of sense,” Matt Lepore, director of the Colorado Oil and Gas Conservation Commission, said Aug. 23 during the Rocky Mountain Energy Summit in Denver convened by the Colorado Oil and Gas Association. “It's taking a sledgehammer approach where a flyswatter would do.”
Lepore spoke during a panel session that focused in part on two proposed ballot initiatives that would enact stringent new constitutional limits on oil and gas activity, including fracking, in Colorado. Lepore was joined by an industry attorney, Jamie Jost of Jost Energy Law PC in Denver, in a session at the convention predominantly attended by representatives of energy companies such as Anadarko Petroleum Corp., Bill Barrett Corp., Halliburton Energy Services and Noble Energy Inc.
Minimum Setback Would be Required
One of the measures (Initiative 78) would ensconce in the state constitution a mandatory minimum setback of 2,500 feet, the required distance between new oil and natural gas wells and homes, schools, hospitals and other occupied buildings. The current state setback is 500 feet.
“If that passes, 90 percent of Colorado's surface area becomes unavailable for new oil and gas drilling,” Lepore said.
The other proposal (Initiative 75) would greatly increase local government regulatory authority over the oil and gas industry, allowing cities, towns, counties and other municipalities the option of limiting drilling and even imposing bans on drilling, powers currently preempted by the Colorado Oil and Gas Conservation Act.
“These proposals would have a devastating effect on the state, not just to industry, but to citizens and to private property rights,” Jost said. “They would result in a patchwork quilt of regulations at the local level that provides absolutely zero certainty to the industry.”
Lepore told Bloomberg BNA the commission anticipates a decision soon from the Colorado Secretary of State's Office as to whether the two measures will be certified for the ballot. Other anti-drilling measures are pending, but Initiatives 75 and 78 are viewed as having the best chances of making the ballot, he said.
State Supreme Court Rulings
Lepore and Jost also discussed recent rulings by the Colorado Supreme Court on the question of the extent to which local governments can regulate, even prohibit, fracking.
In May, in two separate decisions, the court said Colorado's oil and gas law preempts local bans on hydraulic fracturing in Longmont and Fort Collins (City of Longmont v. Colo. Oil and Gas Ass'n, Colo., No. 15-SC-667, 5/2/16City of Fort Collins v. Colo. Oil and Gas Ass'n, Colo., 15-SC-668, 5/2/16).
Lepore said the decisions, while important, essentially affirmed the “status quo” of oil and gas regulation in Colorado. “Drilling is a mixed state and local concern, but the state preempts local regulation if there is an operational conflict caused by local rules,” he said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=96218738&vname=dennotallissues&fn=96218738&jd=96218738
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Anti-Drilling Initiatives Potentially 'Devastating' to Colorado Oil, Gas Industry, Say Experts
Aug 23, 2016 | Natural Gas Intelligence
By Carolyn Davis
Two measures that may be on the Colorado ballot this November likely would harm not only the state's oil and gas industry but have unintended consequences for citizens, industry experts said Tuesday in Denver.
The Colorado Secretary of State's Office this week was continuing to verify petitions for initiatives No. 75 and 78 to determine whether they meet the requirements to be on the Nov. 8 ballot (see Shale Daily, June 7). No. 75 would amend the Colorado constitution, basically allowing local governments to regulate oil and gas development, as long as the rules were at least as stringent as those overseen by the Colorado Oil & Gas Conservation Commission (COGCC). No. 78, also to amend the constitution, would change setback rules and require any new oil and gas development facility to be at least 2,500 feet from the nearest occupied structure or other specified or locally designated area.
COGCC Director Matt Lepore said the citizen-led initiatives have been years in the making, as the state's oil and gas industry has expanded and moved to horizontal drilling and fracturing (fracking). The changes have come at a breakneck pace, colliding with a huge uptick in population, he said at the 28th Annual Rocky Mountain Energy Summit hosted by the Colorado Oil & Gas Association.
"The technology revolution has increased production in the state and the country at a remarkable rate," Lepore said. "The change, the pace of that transition in Colorado from my perspective, has been astonishing." In 2009, less than 2% of all the state's wells were horizontals. In 2015, 75% of the wells were horizontals. "That is rapid change that has transformed the landscape."
The second factor, unique to Colorado and what has made it unique to the oil and gas discussion, is that the state is the second fastest growing on a percentage basis in population, he said. The influx has been "twice the national average..." and many of the new residents are living in energy-rich areas. "It's an amazing convergence in the last four years. Timing is everything."
The oil and gas industry came to Colorado and remained for its massive energy reserves. For the past few years the the anti-fossil movement has used Colorado as a proving ground to test local control, specifically to allow local jurisdictions to place restrictions on unconventional drilling. In light of the growing protests, Gov. John Hickenlooper convened an oil and gas task force two years ago, which ultimately established rules giving local governments a bigger role in siting large facilities near communities, as well as to bridge the regulatory divide between state and local officials (see Shale Daily, Jan. 26).
However, the COGCC still is the ultimate authority over oil and gas development, which the Colorado Supreme Court affirmed last spring after overturning local bans on fracturing (see Shale Daily, May 3; Dec 20, 2012).
"The Supreme Court really affirmed the status quo," Lepore said. "State oil and gas development is mixed state and local concern and under that scenario, the state preempts...That is what the state believed the status was going in...The decision was very important. It soothes the waters a little bit, but it's business as usual for us in some ways...
"By that I mean, COGCC was founded in 1951 by the [Colorado] General Assembly and we have more than 60 years of rules and regulations that have evolved with the industry. We have a staff of about 102 people who are highly technically trained, highly educated...specific staff to implement the rules at the state level. Those are things that no local government has or is going to have."
As a government official, Lepore said while it was "tempting" to offer his opinion on the two proposed ballot initiatives, he could not. Hickenlooper also has not taken a public position.
"The bigger picture is regulating a complex, rapidly evolving, technically sophisticated industry through a ballot initiative to amend the constitution. It just doesn't make a lot of sense. There is no nuance, no differentiation. It's a sledgehammer approach where a fly swatter will do."
For example, Lepore said there are a "raft" of questions about No. 78. If an operator has an existing permit to drill but hasn't yet drilled -- a real possibility in today's cautious climate -- can the permit still be used if the initiative is enacted? If a well has been drilled but not completed, could it still be completed once the initiative is passed if the well is 1,500 feet from a federal stream?
"There's lots and lots of uncertainty about how that initiative has been written," he said. "With respect to No. 75 on local control, that's going to cause a lot of uncertainty for COGCC. If you have local governments now enacting lots of new ordinances to regulate industry that we have evolved over 60 years, where do they come up with the technical expertise to do that? Where is the staff to inspect and to enforce those regulations?" For COGCC, does it have to become "educated and knowledgeable about every nuance of that local government?"
The "quagmire" is knowing all of the regulations for every single town in Colorado, Lepore said.
"I don't have to dance around that question," attorney Jamie Jost of Jost Energy Law PC said of the ballot initiatives. She shared a stage with Lepore. Jost is counsel to COGA and also provides expertise on exploration development for the oil and gas industry. "If they are on the ballot, they will have a devastating effect to the state, not only to industry, but also to citizens and private property owners.
"Specific to No. 75, it would create a patchwork of regulations...And it provides absolute zero certainty to the operator. Budgetary certainty goes along with development, and having to know 10s or 100s of different regulations" would force industry out of the state. "That alone would have a devastating impact to the economy..."
For No. 78, an estimated 6,000 royalty owners in Colorado could be impacted. If they can't have any say over how their private lands are developed, they may have reason to sue the state for compensation, Jost said.
"If they were successful, they would have to be compensated for their damages and the loss of their ability to operate their private property. Take 75 and 78 together, and it's devastating..."
Local governments should be involved in oil and gas development, Lepore stressed. "But it's clear that from our point of view that it's our rules that should be the lead rules on these issues..." The Supreme Court discussed COGCC's "exhaustive set of rules and regulations that are in place to prevent waste, ensure oil and gas resources and protect health and the enforcement..."
Local governments that are "interested in significant change to regulatory regimes understand now the importance of working with COGCC...Like the operators, we have different relationship with the local governments. Some go their own way and do their own thing. Some want our help. And some want nothing to do with us. Now, if they are inclined to go and do a fracking bank, they need to go after it in a different way."
The task force led to two important takeaways, he said. "One is that the regulatory regime that we have in Colorado, the vision between the state and local regulators, is that it is working for a vast majority of local governments. A smaller number want dramatic change...but we came to the conclusion that what we have works. Second, it has been unequivocally decided that the state is the right place at the end of the day where oil and gas regulatory authority ends. It is informed now by the Supreme Court on the fracturing bans."
COGCC has conducted listening tours at 11 places around the state, a "very deliberate effort" to ensure local feedback as it worked to enact proposed regulations by Hickenlooper's task force. "The other reason was to bring everybody into the tent," Lepore said. "Our process should be one that is transparent, available to everybody, to all stakeholders."
At the end of the day, 72 parties from around the state -- industry, activists, landowners and regulators -- participated.
"It doesn't make it any easier" to have that many groups participating. "It makes it far more challenging. More people are unhappy with you at the end of the day. But it's the right way to go...Industry needs to engage with those people to be part of the process. The understanding is there, the concerns, the needs, the wants. It's fundamental to the success of industry going forward..."
Anti-drilling groups have claimed they don't have equal footing with the COGCC that the industry does. Lepore was asked to explain.
"I would say first and foremost that I believe strongly that all parties have an opportunity to participate in conversations in Colorado. It's hard to make comparisons to other states, but Colorado is probably unprecedented in the amount of input a citizen can have. They can comment on a permit application, they can come to the rulemaking, they can testify...Are they playing catch-up with industry? Yes, they probably are. Industry has been really good about engaging with COGCC. They have a lot of resources to bring, they've been doing it a long time and they put resources into it. But I would say that I can tick off the rulemakings that have occurred under my watch in the last four years...
"We have increased penalties" today for the oil and gas industry (see Daily GPI, Jan. 5, 2015). "Where did they come from? They came from legislative change. Why? Because legislators were listening to citizens. The lower spill reporting threshold is the same thing" (see Daily GPI, Aug. 15, 2013). Every significant rulemaking in the past five years is "tied back to social dynamics, to social pressure upon us, the legislature and industry. I'm sure there's a sense of the underdog, little guy. But the fact is, citizens are changing and moving the conversations."
Jost too attributed Colorado's regulatory overhaul in the past few years to societal changes.
"What we have witnessed in Colorado over the last year, the substantial amount of changes...all occurred because of some call for social change. It requires a level of collaboration from all parties and active engagement."
Fairness, she said "is a very subjective standard. What I think is fair is different from what you think is fair...But the fundamental concept of fairness is built into the regulations. If citizens have concerns, they can pick up the phone. Alternatively, they have an opportunity to participate...COGCC listens to them. Put in the local government scope and they also have public hearings, another layer of citizen involvement...I do think there are ample opportunities for citizens to have input at the local and state regime."
http://www.naturalgasintel.com/articles/107505-anti-drilling-initiatives-potentially-devastating-to-colorado-oil-gas-industry-say-experts
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Local Control on Drilling Becoming Bigger Issue in Southern California
Aug 23, 2016 | Natural Gas Intelligence
By Richard Nemec
While Colorado remains the focal point for local government seeking more control of oil/natural gas drilling, the issue has also found its way to Los Angeles. The nation's second-largest city still can count dozens of active drilling sites, none more controversial than one operated by Phoenix-based Freeport-McMoRan.
The Los Angeles planning department is trying to require Freeport to file an application to continue operations at a decades-old drilling site in the heart of a residential neighborhood west of the University of Southern California campus. The city’s request asks Freeport to make a formal application by early September.
Freeport is balking at the city's mandate. Attorneys for the mining and natural resources company said the local authorities have no legal justification for the recent request. The city request asks for Freeport to make a formal application to the city by Sept. 1.
The Freeport attorneys argued that the city has no right to impose additional conditions on the company's drilling work. Until the city can provide more evidence of "validated nuisances" at the drill site, the company is not going to submit an application aimed at imposing more conditions, Freeport attorney Jeffrey Dintzer wrote to the city.
"[Freeport] is unaware of evidence of any violation of the applicable conditions, or of any validated nuisance, that would justify the action requested [by the city planning department]," Dintzer said. "In fact, it is our opinion that the request lacks any legal justification given the absence of facts or evidence to initiate a 'plan approval' of this nature."
Community leaders and attorneys for Earthjustice have hailed the city's latest effort, telling the local news media that it shows "they are doing their job," which hasn't always been the case as far as the opponents of the site are concerned. In June, in a 355-page submittal to the city's planning director, EarthJustice filed a petition on behalf of Community Partnership, a nonprofit grassroots organization, asking the city to "abate the ongoing nuisance" at the Freeport site.
Launching the city process for a drill site that California Independent Petroleum Association CEO Rock Zierman considers "in full compliance with the applicable rules and regulations" ignores the "vested rights of the operators of these facilities,” according to aLos Angeles Times report.
Earlier this summer, a Los Angeles zoning official sought to halt plans by a unit of Freeport to add onsite burning equipment for escaping natural gas at the controversial urban drilling site (see Daily GPI, July 8). Freeport-McMoRan Oil & Gas Co. (FM O&G) sought to install an enclosed burner, claiming it would reduce emissions to near zero and have minimal impact on nearby residents, who blame the drilling operations for health issues.
In his Aug. 18 letter, Dintzer said that FM O&G "vigorously objects to any effort by the city to unilaterally modify conditions of its drill site authorization."
The associate city zoning administrator cited various concerns of fire officials, including the possibility of wind-blown debris catching fire. Residents have opposed the company's plans.
http://www.naturalgasintel.com/articles/107498-local-control-on-drilling-becoming-bigger-issue-in-southern-california
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Top Energy Adviser Says Donald Trump Is Solidly Behind Fracking
Aug 23, 2016 | The Wall Street Journal
By Amy Harder
Harold Hamm dismisses candidate’s comments backing local limits on extraction technique for oil and gas
Donald Trump’s top energy adviser on Tuesday sought to play down the GOP presidential candidate’s recent comments that he could support local efforts to ban hydraulic fracturing.
Oil man Harold Hamm said in an interview that Mr. Trump didn't fully understand a recent question about whether he supported local bans on hydraulic fracturing, or fracking, and that the Republican nominee was a strong supporter of the industry.
“Donald Trump did not understand that concept at the time in my opinion,” said Mr. Hamm, the chief executive of Continental Resources Inc., in an interview on the sidelines of the Colorado Oil and Gas Association’s annual conference.
“He does now,” Mr. Hamm added.
Mr. Trump said in a July interview with a Colorado television station that he could support local efforts to ban fracking. Energy companies have used the extraction technology—which involves pumping large amounts of water and chemicals into rock formations—prolifically over the last decade to unlock vast reserves of oil and natural gas. But it has riled environmentalists, who worry it could contaminate water supplies.
“Well, I’m in favor of fracking, but I think that voters should have a big say in it,” Mr. Trump said to 9NEWS in Colorado. “If a municipality or state wants to ban fracking, I can understand it.”
Mr. Hamm said he hasn't spoken to Mr. Trump about the comments, but emphasized that he is confident the GOP nominee doesn’t support local bans on fracking. A request for comment to the Trump campaign wasn’t immediately returned Tuesday.
Colorado is ground zero in the national fight over fracking. Grassroots organizers are seeking to get two initiatives on the state’s fall ballot that would likely significantly restrict-—some say ban outright—oil and natural gas development in the state, one of the U.S.’s biggest producers of both oil and gas.
A decision is expected as soon as this week from Colorado’s secretary of state on whether the organizers submitted enough valid signatures to place the measures on the ballot.
The energy industry universally opposes efforts to ban the practice anywhere, as do nearly all of its GOP allies in Washington.
Mr. Hamm said the nominee got caught up in the term “local control,” which is a phrase some organizers of initiatives to limit oil and gas activity use to mean giving local municipalities and others more control over what kind of development can occur within their borders.
“I think he was pulled into that with the term local control, which is a magnet for Republican thoughts,” Mr. Hamm said.
In a speech at the conference, Mr. Hamm sought to assuage the industry crowd that the Republican presidential nominee supported the sector.
“Donald Trump is pro-business. He is pro-energy and he is not going to shut down fracking or drilling or anything else,” said Mr. Hamm. “He is for this industry 100%.”
http://www.wsj.com/articles/top-energy-adviser-says-donald-trump-is-solidly-behind-fracking-1471987532
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North Dakota Says Lack Of Risk Finding Undermines Oil & Gas Methane Rule
Aug 23, 2016 | Inside EPA
By Bridget DiCosmo
North Dakota plans to argue that a federal appeals court should scrap EPA's first-time rule to curb the greenhouse gas (GHG) methane from the oil and gas sector because the agency did not issue a finding that the industry's methane emissions endanger human health and welfare, calling it a necessary step under the Clean Air Act (CAA).
The state filed an Aug. 22 non-binding statement of issues outlining the claims it expects to raise in litigation over the new source performance standards (NSPS) methane rule pending in the U.S. Court of Appeals for the District of Columbia Circuit. North Dakota will also argue that EPA unlawfully relied on a set white papers in support of the rule, and overreached the Clean Air Act by usurping delegated state authority.
North Dakota was the first state to challenge the June 3 NSPS, which is aimed at curbing emissions of methane from new and modified oil and gas facilities, and is one of several EPA measures to reduce the industry's emissions. For example, EPA alongside the NSPS issued a draft information collection request seeking data on methane emissions from existing oil and gas operations that could inform a methane rule for those sources.
Echoing prior claims from other states and industry groups, North Dakota in its new statement says EPA violated the air law by not crafting an endangerment finding on the sector's methane emissions for the oil and gas sector “in order to establish standards of performance for methane emissions from those sources.”
Under the Clean Air Act, an affirmative endangerment finding is considered a pre-requisite before the agency can regulate sources' emissions of the pollutant at issue in the risk finding. Industry officials have long argued that EPA should have crafted a finding showing that methane endangers public health and welfare before targeting the potent GHG for the first time.
But environmentalists have countered that EPA's earlier endangerment finding for its rule governing vehicle GHG emissions, including methane, is adequate to justify the NSPS rules.
Similarly, the agency in its June 3 response to public comments on the NSPS cited the 2009 endangerment finding -- which included methane -- saying, “Given the strong body of science that demonstrates the impacts on human health and the environment, EPA must act expeditiously to ensure that major sources of greenhouse gases -- such as the oil and gas industry -- promptly and aggressively limit their emissions.
North Dakota's statement of issues also claims EPA's reliance on a set white papers to gather information on cost-effective controls across several key emissions sources, such as hydraulically fractured oil wells, in the rulemaking was “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law.”
The state also questions whether EPA's decision to regulate oil wells that are fracked in the final rule was unlawful and “Whether the Final Rule violates the Tenth Amendment, principles of cooperative federalism, and the CAA by neglecting North Dakota’s state regulations and commandeering North Dakota’s state-delegated programs?”
North Dakota said in an earlier filing that it will argue the rule “exceeds EPA's statutory authority, goes beyond the bounds established by the United States Constitution and is arbitrary, capricious, an abuse of discretion and not in accordance with the law,” asking the court to vacate the regulation.
http://insideepa.com/daily-news/north-dakota-says-lack-risk-finding-undermines-oil-gas-methane-rule
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Protect Workers From Harmful Chemicals, Advocates Urge EPA
Aug 24, 2016 | BNA Daily Environment Report
By Pat Rizzuto
The Environmental Protection Agency should use the new authorities under the amended Toxic Substances Control Act to protect workers and other at-risk groups, advocates say.
Environmental health and union representatives urged the EPA to protect many potentially exposed and susceptible populations during meetings the EPA held Aug. 9 and 10 to discuss rules it must develop under the amended chemicals law.
Worker safety and protection from exposure to industrial chemicals on the job received particular attention at the meetings.
The TSCA amendments allow the EPA to consider several different risks posed by chemicals. Also, the Occupational Safety and Health Administration is underfunded, has proven unable to update chemical exposure limits for the workplace and implements a law that is older than TSCA before the chemicals law was finally overhauled, attorneys and other policy analysts told Bloomberg BNA in recent interviews. The individuals voicing these perspectives didn't always fall into expected camps.
Diverse Perspectives Voiced
“OSHA isn't doing it,” Eve Gartner, an attorney with Earthjustice told Bloomberg BNA. Gartner said that OSHA is simply not updating and setting new permissible exposure limits, or PELS, to limit worker exposures from harmful chemicals.
Anna Fendley, with the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, told Bloomberg BNA that TSCA's new mandate to consider workers as a potentially exposed group means the EPA could provide valuable additional expertise to support actions taken by OSHA and research at the National Institute for Occupational Safety and Health.
Jamie Conrad, an attorney with Conrad Law & Policy Counsel, told Bloomberg BNA that chemical risk assessments the EPA has conducted for trichloroethylene (TCE) in vapor degreasing, methylene chloride and n-methyl pyrollidone (NMP) in paint stripping prior to TSCA being amended already show the agency will consider workplace exposures as it decides whether to regulate chemicals in commerce.
The EPA has considered worker exposures in regulations of new chemicals in the past and will propose controls in a Federal Register notice slated for Aug. 24 publication.
W. Caffey Norman, an attorney and partner with Squire Patton Boggs, told Bloomberg BNA chemicals commonly used in the workplace may be in for new restrictions if the agency focuses on worker exposures.
Directives in Amended Law Potentially Powerful
TSCA, as amended June 22 by the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Pub. Law No. 114-182), is “potentially a very powerful law,” Gartner told Bloomberg BNA Aug. 17. Section 3 of the law requires the EPA to protect “potentially exposed or susceptible subpopulations.” Lautenberg defined those terms as meaning groups within the general population that “due to either greater susceptibility or greater exposure, may be at greater risk than the general population of adverse health effects from exposure to a chemical substance or mixture, such as infants, children, pregnant women, workers, or the elderly.”
Both the new chemicals and existing chemicals sections of the amended TSCA (Sections 5 and 6) require the EPA—as it evaluates chemical risks—to look at its conditions of use throughout its life cycle, she said. The phrase life cycle includes its manufacture; “processing,” meaning its use to make paints, cleaning ingredients or other products; distribution in commerce; commercial or industrial use; and disposal, Gartner said.
If any of the exposures that occur during those stages, or if the combination of those exposures, present an unreasonable risk of injury to human health—including to potentially exposed or susceptible subpopulations—the amended law requires the EPA to issue a regulation to reduce or eliminate that risk, she said.
Different Agency's Law, Regulations
A new provision in Section 9 of the amended law also requires the EPA to take actions under a law administered by a different agency or through an environmental regulation other than TSCA.
EPA's chemicals office is required to provide a report about the unreasonable risk it found to the other agency or EPA office and publish the report in the Federal Register.
The EPA's chemicals office must ask the second agency or office whether it agrees there is a risk that should be addressed, and the chemicals office must set a response deadline.
If the second agency or EPA office fails to respond, fails to take action it says it will take to manage a risk with which it concurred, or fails to act in certain other ways detailed in Lautenberg, the EPA's chemicals office must take some kind of action to reduce or eliminate the identified unreasonable risk.
Provisions Open Door for New Strategies
The EPA's implementation of the law is at an early stage, but the potential is exciting, Gartner said.
Rebecca Randle, of the AFL-CIO, urged the EPA to coordinate closely with the OSHA and NIOSH as the environmental agency selects which chemicals will be first in the queue to have their risks evaluated.
Gartner highlighted a new role workers, consumer advocates and other organizations could play once the EPA completes risk reviews.
As amended, TSCA now requires the EPA to issue the scope of its risk evaluation—the health concerns and exposures it will evaluate—within six months.
Workers, consumer groups and other interested parties should be at the table when the EPA is deciding what the scope of its risk evaluation will be, Gartner said.
Other Options Provided
The changes Lautenberg made to Section 9 also provide other options, she said.
Originally TSCA was designed to be used when other regulations didn't suffice, hence it was called a “gap filling statute,” she said.
“That has shifted a bit with the revisions of Section 9,” she said.
This poses strategic questions environmental health and worker groups will need to think through, she said. They can now ask “which agency is likely to do a better job” and which statute is best able to provide needed protections, Gartner said. “This opens doors that weren't open before.”
Augment, Not Replace OSHA
Fendley said the United Steelworkers are analyzing the TSCA amendments to determine where they would want workers' perspectives to be considered.
“This is a whole new world, we're looking forward to EPA working on chemicals,” she said.
Although one might expect a union to welcome new chemical regulatory activity because OSHA's PELS are somewhat out of date, Fendley said United Steelworkers doesn't want the EPA to supplant NIOSH and OSHA.
“We don't want EPA to replace OSHA in regulating chemicals in the workplace. That's not EPA's role; that's not its expertise,” she said. “The hope is that EPA will work closely with NIOSH and OSHA in assessing and controlling chemicals.”
EPA's risk assessments may provide useful information for OSHA and NIOSH as those agencies apply their expertise about workplace controls, Fendley said.
Others Echo Comments
The views Gartner and Fendley shared with Bloomberg BNA were echoed by many advocates at meetings the EPA held on Aug. 9 and 10 to solicit interested parties' views about two draft rules the agency intends to propose by December. The first proposed rule would address how the EPA will decide which of the thousands of chemicals in commerce it should focus its attention on in the near term and how it should evaluate chemical risks.
“Workers are almost always first and worst exposed, and the new TSCA unequivocally covers them,” Manuel Gomez said at the Aug. 10 meeting. He said he was an independent consultant who spoke for himself.
“OSHA's health standards are badly outdated, and the agency is unable to issue standards in a timely fashion,” he said.
The EPA should prepare to take action to control harmful chemical exposures if OSHA fails to do so, Gomez said.
OSHA Letter Says EPA May Be Better Positioned
An undated letter Assistant Secretary for Occupational Safety and Health David Michaels sent to Jim Jones, EPA's assistant administrator for chemical safety and pollution prevention, about EPA's TCE, NMP and methylene chloride risk assessments shows OSHA maintains that the EPA may sometimes be better positioned to manage chemicals.
Chemical
Health Concern
Illustrative Potential Workplaces
Status
Asbestos & Asbestos-like Fibers
Known Human Carcinogen
Construction Industry
TSCA Risk Evaluation Not Yet Initiated
Benzene
Known Human Carcinogen
Petrochemicals, petroleum refining, coke and coal chemical manufacturing; rubber tire manufacturing; steel workers; printers; rubber worker; firefighters; and gas station employees.
TSCA Risk Evaluation Not Yet initiated
1-Bromopropane
Possible Human Carcinogen
Occupational Uses of Concern Identified By EPA Include use in spray adhesives, dry cleaning (including spot cleaning), and degreasing (vapor, cold cleaning, and aerosol).
TSCA Risk Evaluation Initiated 2013
Formaldehyde
Known Human Carcinogen
Manufacture and Use of Formaldehyde-based Resins; Embalming; Garment Industry.
TSCA Risk Evaluation Not Yet Initiated
Methylene Chloride
Probable Human Carcinogen
Building Renovators Working with Paint Stripping Products Containing Methylene Chloride.
TSCA Risk Evaluation Completed 2014; EPA Pursuing Risk Reduction
N-Methyl-2-Pyrrolidone (NMP)
Reproductive Toxicity
Building Renovators Working with NMP-Containing Paint Strippers
TSCA Risk Evaluation Completed 2015; EPA Pursuing Risk Reduction
Trichloroethylene (TCE)
Probable Human Carcinogen
Workers Using TCE as a Degreaser in Small Commercial Shops and as a Stain Remover in Dry Cleaning.
TSCA Risk Evaluation Completed 2014; EPA Pursuing Risk Reduction
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1 EPA's TSCA Work Plan lists about 90 chemicals the agency plans to evaluate for human health and environmental risks.“Given certain limitations imposed on OSHA's authority under the OSH Act, this agency believes TSCA provides the Environmental Protection Agency (EPA) with a means of eliminating or reducing the risks associated with these chemical uses in a more coordinated fashion across both consumer and occupational settings,” Michaels wrote.
Conrad echoed Gartner's remarks when he, too, told Bloomberg BNA the amended TSCA “is no longer a gap filling statute.”
The EPA already has shown it will consider workers' exposures in the TCE, NMP and methylene chloride risk assessments, he said. All three risk assessments concluded certain workplace and consumer uses of the chemicals could pose unreasonable risks.
Workplace Exposures, Proposed Controls
Conrad, who represents chemical companies in his law and policy practice, said he expects to see workplace exposures and proposed controls in future EPA chemical risk evaluations and proposed regulations.
The Occupational Safety and Health Act is older than TSCA was before the chemicals law was updated, Conrad said.
The most egregious example of the Occupational Safety and Health Act being outdated, he said, is the $10,000 or six months imprisonment cap, or both, on the penalty OSHA can impose on an employer whose wilful negligence causes a worker's death.
Second violations by the same person are subject to a “a fine of not more than $20,000 or by imprisonment for not more than one year, or by both,” according to the 1970 law.
Expect Pushback on Worker Regulation
Norman, from Squire Patton Boggs, told Bloomberg BNA he expects there will and should be a lot of industry pushback if the EPA tries to become a workplace regulator.
“People aren't going to sit back and watch EPA take over regulations of chemicals in the workplace,” he said.
The EPA's risk assessments of TCE and methylene chloride derived acceptable exposure limits for the three chemicals that were “orders of magnitude,” meaning hundreds to thousands of times stricter, than workplace standards, he wrote in an Insights article published in Bloomberg BNA.
The reasons for this difference isn't that OSHA's standards are older, Norman said. The agency used essentially the same data in 1997 to set its methylene chloride standard of 25 parts per million for an eight-hour time weighted average as the EPA did in 2014 to set its permissible exposure limit of 0.2 ppm, he said.
Different Risk Assessments Used
The EPA and OSHA use different risk assessment approaches and have different statutory requirements, and that can result in the EPA setting much lower limits, Norman said.
If the EPA uses the same approach in the future to assess chemicals used in the workplace as it did with TCE and methylene chloride, other important chemicals used by industry could face new restrictions, he said.
Anthony Noce, who focuses on environmental, health and safety issues at Haley & Aldrich, Inc., an environmental and engineering consulting firm, told Bloomberg BNA he doesn't expect the EPA to try and supplant OSHA.
The Lautenberg act's requirements for the EPA to consider workers comes in the context of potentially exposed and vulnerable subpopulations, and the agency is likely to discuss workers in that context, he said.
Lautenberg, however, gave the EPA the authority to obtain chemical data by orders rather than rules, and the information the agency is likely to secure using that authority could help OSHA and NIOSH protect workers, Noce said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=96218713&vname=dennotallissues&fn=96218713&jd=96218713
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U.S. Sen. Blumenthal to Metro-North: Expedite PTC
Aug 23, 2016 | Progressive Railroading
U.S. Sen. Richard Blumenthal (D-Conn.) yesterday urged MTA Metro-North Railroad to end delays in implementing positive train control (PTC) and confirm that it will meet a December 2018 deadline to install the technology.
In a letter to Metro-North President Joseph Giulietti, Blumenthal wrote that the railroad's work on PTC is "apparently lagging."
His letter follows the Federal Railroad Administration's (FRA) recent update on railroads' PTC implementation status. Since the FRA released a similar status report last year, Metro-North has made "scant progress" toward implementing PTC, Blumenthal said.
According to the FRA, Metro-North has not acquired radio spectrum for PTC or submitted a PTC safety plan. However, 17 percent of Metro-North's employees have received training on PTC.
"Metro-North should be leading the way — a model of timely, sound investment, not safety delay," Blumenthal wrote. "The Spuyten Duyvil disaster was a red flag for this railroad, but Metro-North seems to have missed the signal, and it apparently will miss another timetable."
The December 2013 Spuyten Duyvil incident involved the derailment of a Metro-North train near the Bronx, N.Y. Four people were killed and many others sustained injuries. The train derailed after it sped through a curve at 82 mph in a 30-mph zone. The investigation revealed that the train engineer had fallen asleep prior to the derailment, which investigators said likely would have been prevented by PTC technology.
Blumenthal further demanded Metro-North to "take the PTC mandate seriously" and provide assurance that the technology will be effective by the federal deadline.
In August 2015, Blumenthal wrote another letter demanding Metro-North set a firm deadline for implementing PTC.
"Still, one year after I wrote you and nearly one year after Congress gave railroads more time to install PTC, the key facts remain unchanged: PTC is operational nowhere on the 384 miles of track Metro-North operates and the railroad has little to show for the past 12 months," Blumenthal wrote in yesterday's letter.
Metro-North spokesman Aaron Donovan told the New Haven Register that the railroad anticipates meeting the 2018 deadline. However, Metro-North's parent agency — the Metropolitan Transportation Authority — is the "busiest transit agency in the Western Hemisphere," he added.
"We run under and over the densest population in the country," Donovan told the newspaper. "No one has tried PTC under these circumstances."http://www.progressiverailroading.com/ptc/news/US-Sen-Blumenthal-to-Metro-North-Expedite-PTC--49220
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Industries Reject Boiler Ruling Precedent For 'SIP Call' Suit
Aug 23, 2016 | Inside EPA
A broad coalition of industry groups is rejecting EPA's claim that a recent appellate ruling scrapping part of the agency's boiler maximum achievable control technology (MACT) air toxics rule's standards undermines the coalition's challenge to a rule forcing states to scrap emissions limit exemptions for industrial facilities.
In an Aug. 19 letter to the U.S. Court of Appeals for the District of Columbia Circuit in Walter Coke, Inc. v. EPA, et al, the so-called SSM Coalition of industries says the boiler MACT ruling should not influence the suit over the rule requiring states to remove from their state implementation plans (SIPs) the emission limit waivers for facilities during startups, shutdowns or malfunctions (SSM).
The D.C. Circuit in its unanimous per curiam ruling in United States Sugar Corp. v. EPA vacated air standards for all the “subcategories” of boilers for which the agency failed to consider all sources in those different categories of units, while rejecting industry claims that the MACT was too stringent.
The Department of Justice (DOJ) on behalf of EPA earlier seized on the ruling to bolster its defense of the “SIP Call” rulemaking case being litigated in Walter Coke. DOJ sent an Aug. 10 letter to the court saying that the boiler decision “reiterated that EPA 'lacked discretion to' and 'had no option' to exempt sources from compliance during any periods of operation (e.g., startup, shutdown and malfunction).”
But the SSM Coalition in its new letter counters that, “The U.S. Sugar panel found permissible EPA’s conclusion it need not address malfunctions in emission standards under [Clean Air Act] section 112, because section 112(d)(3) requires EPA to base those standards on what is achieved by 'the best controlled similar source.'” Air law section 112 addresses air toxics, not rules governing how SIPs are crafted, which are covered by section 110.
However, “No such requirement applies to states’ establishment of emission limitations in SIPs. Since it was specific to the criteria in section 112, U.S. Sugar does not contradict opinions stating that technology-based standards should account for the effect of startup, shutdown, and malfunction,” the coalition says.
Nor does the group accept that the U.S. Sugar ruling constitutes “new authority,” as claimed by DOJ, because the casesU.S. Sugar references are all addressed in industry's briefs in the SIP Call litigation, the industry coalition says.
http://insideepa.com/news-briefs/industries-reject-boiler-ruling-precedent-sip-call-suit
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California's Climate Change Law Clears A Big Hurdle After Lobbyists Crank Up Pressure
Aug 24, 2016 | Los Angeles Times
By Chris Megerian, Melanie Mason and Liam Dillon
A controversial measure to extend California’s target for reducing greenhouse gas emissions was approved by the Assembly on Tuesday, clearing a major hurdle in a battle at the Capitol over the future of the state’s environmental programs.
White House officials and Gov. Jerry Brown cranked up the pressure on Assembly members to support the legislation, while oil industry lobbyists huddled with sympathetic lawmakers in an attempt to stall an effort that once seemed unlikely to gain traction this year.
The legislation would require slashing greenhouse gas emissions to 40% below 1990 levels by 2030, an easier target than the current goal of hitting 1990 levels by 2020.
"When it’s all said and done, this is a simple bill, but an extremely significant one," said Assemblyman Eduardo Garcia (D-Coachella), who introduced the measure on the floor. "It represents a new chapter of the state’s climate policy.”
The measure, Senate Bill 32, must receive a final vote in the Senate before it can go to Gov. Jerry Brown for his signature. It is the sequel to Assembly Bill 32, a landmark 2006 law that laid the groundwork for California’s extensive array of environmental initiatives, including the cap-and-trade program, which provides a financial incentive to reduce emissions by forcing companies to buy permits to pollute.
“Today’s action sends an unmistakable signal to investors of California’s commitment to clean energy and clean air,” said a statement from state Sen. Fran Pavley (D-Agoura Hills), who authored both measures.
The issue has been the subject of intense lobbying in Sacramento, especially after signals this month from Brown and some lawmakers that there may not be enough political support to pass the measure before the end of the legislative session Aug. 31.
After the vote, Brown issued a statement referencing Republican presidential nominee Donald Trump, who has called climate change a hoax, and thanking lawmakers for “rejecting the brazen deception of the oil lobby and their Trump-inspired allies who deny science and fight every reasonable effort to curb global warming.”
Assemblyman Ken Cooley (D-Rancho Cordova), one of more than a dozen Assembly members who supported the legislation Tuesday after abstaining or voting against it last year, said he’s confident lawmakers will have greater say over state regulations than they have in the past. White House officials reached out to Cooley and a few of his colleagues recently to talk to them about supporting the measure, he said.
“It just signals that clearly the White House views the leadership of California as an important part of a global conversation,” he said. “It rose to the level where they were looking to reach out to members.”
Democratic donor and environmentalist Tom Steyer was also in the Capitol during Tuesday’s debate talking to lawmakers.
“You’re dancing to the flute of a rich hedge fund billionaire who is running for governor,” Assemblyman James Gallagher (R-Plumas Lake) told his colleagues who were supporting the legislation, a nod toward Steyer’s rumored political ambition.
Steyer said it was only a coincidence that he was present Tuesday. Asked about Gallagher’s comment, he said, “normally when I hear something like that, I think, wow those guys have run out of actual arguments and now they’re trying to sling dirt.”
Oil companies and manufacturers that opposed the legislation are now turning their attention to a related measure, Assembly Bill 197, which would increase legislative oversight of regulators and crack down on pollution from refineries and other sources.
If it’s blocked, the new emissions reduction target from Senate Bill 32 won’t take effect.
Despite some concerns from fellow Democrats, Assembly Speaker Anthony Rendon (D-Paramount) said his caucus would support Assembly Bill 197, which is scheduled for a hearing Wednesday morning.
“It’s really about oversight, it’s really about accountability,” he said. “These are the types of things that we’ve been talking about as a caucus, as a Legislature, for some time.”
Tuesday’s vote came shortly after the latest report of revenues collected under cap and trade.
In the program, permits are traded on a market or sold in an auction. Although overall demand for permits increased, revenue is expected to be less than $10 million, even lower than the dismal results from the May auction.
Supporters have noted that revenue is not the best way to measure the success of a program intended to lower emissions, but the money has become an important part of the political conversation in the Legislature. Brown is counting on some of the money to help pay for the bullet train from Los Angeles to San Francisco, and lawmakers are working on plans to divvy up the rest among projects in their districts.
Rendon said he hopes approving new legislation this year will restore some confidence to the cap-and-trade market.
“We know that the last couple of auctions have been not what we wanted them to be,” he said. “We’re trying to let people know that we’re dedicated to battling climate change in California and that what this program has done for the economy, it’s going to continue to do so for quite some time.”
However, the legislation would not address legal uncertainty stemming from a lawsuit over whether the existing cap-and-trade program has amounted to an unconstitutional tax. Eliminating that concern would require a two-thirds vote in each house of the Legislature, the threshold needed to approve taxes and fees.
Catherine Reheis-Boyd, president of the Western States Petroleum Assn., said in a statement that problems will only worsen because the measure advanced on Tuesday “fails to address fixes to cap-and-trade, which sends the wrong signals to the market.”
The Brown administration has said more work will be necessary — possibly with a ballot measure in 2018 — to address the issue.
“Shoring up the cap-and-trade program — either through the Legislature or by the voters — will provide that certainty and will continue billions in funding for vital programs, especially in disadvantaged communities with the dirtiest air,” said a statement from Nancy McFadden, a top aide to Brown.
http://www.latimes.com/nation/la-pol-sac-california-climate-change-assembly-vote-20160824-snap-story.html
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California Assembly Approves Climate Change Bill
Aug 24, 2016 | The Hill - E2 Wire
By Devin Henry
California lawmakers have broadened the state’s goals to reduce greenhouse gas emissions.
The state Assembly on Tuesday approved Senate Bill 32, a measure to require a 40 percent reduction in California emissions, from 1990 levels, by 2030, The Sacramento Bee reports. The bill updates an existing climate law requiring the state to reduce emissions to 1990 levels by 2020.
The bill cleared the Assembly 42-29, one more vote than was required. The measure is expected to easily pass the state Senate.
Democrats hailed the legislation as a way to “continue California’s leadership on climate change,” Assembly Speaker Anthony Rendon said, according to the Bee.
Republicans and the oil industry opposed the bill, though, saying it would hurt businesses in the state and give too much power to regulators.
They also tied the measure to billionaire climate activist and donor Tom Steyer, who had lobbied lawmakers to support the bill and used a TV ad to accuse the oil industry of “trying to weaken our clean air laws.”
Steyer celebrated the bill’s passage with a tweet on Tuesday, saying, “California keeps leading the way!” But a state Assemblyman noted Steyer’s potential political ambitions, and accused Democrats of “dancing to the flute of a rich, hedge fund billionaire that’s running for governor,” the Bee said.
Implementation of the measure is contingent on passage of a bill to increase oversight of the state’s Air Resources Board. Oil groups have begun to lobby against that bill, the Los Angeles Timesreported on Tuesday, hoping to sink it as a way to effectively block the climate legislation.
http://thehill.com/policy/energy-environment/292390-california-assembly-approves-climate-change-bill
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As Energy Use Rises, Corporations Turn to Their Own Green Utility Sources
Aug 23, 2016 | The New York Times
By Diane Cardwell
The words are stenciled on the front of the AppleStore, a glass box sandwiched between a nondescript Thai restaurant and a CVS pharmacy in downtown Palo Alto: “This store runs on 100 percent renewable energy.”
If Apple’s plans play out, it will be able to make that claim not only for its operations throughout California but also beyond, as the company aims to meet its growing needs for electricity with green sources like solar, wind and hydroelectric power.
Like other big companies before it, including Walmart and Google, Apple recently received a federal designation for its energy subsidiary that allows it to become a wholesale seller of electricity from coast to coast. In effect, Apple is creating its own green utility company, although the main customer is itself.
The motives may be economic as much as they are environmental. As a wholesaler, Apple could reduce the cost of its electricity load, which reached 831 million kilowatt-hours in the last fiscal year — enough to power about 76,000 homes for a year. But like a growing number of corporations, Apple is intent on reducing carbon dioxide emissions from electricity production — one of the biggest sources of greenhouse gases that contribute to global warming.
In one ambitious venture, Apple has contracted with First Solar to begin buying a little less than half of the power later this year from California Flats, a solar energy farm now under construction. Under the terms of the deal, Apple will pay $848 million for the electricity over 25 years and receive the farm’s total output by the end of the agreement. It is one of largest commercial clean energy contracts yet.
Lisa Jackson, the former administrator of the Environmental Protection Agency who is now the Apple executive overseeing environmental policy, social initiatives and worldwide government affairs, said she hoped Apple could serve as a model for the many other big corporate power users that are now embracing clean energy.
“This is just another sort of innovative way to get that power onto the grid so we don’t have to take the California grid-mix default, which still includes fossil fuel,” Ms. Jackson said.Continue reading the main storyRELATED COVERAGEPatagonia to Help Fund Residential Solar Installations MARCH 10, 2016Whole Foods Plans 100 Rooftop Solar Systems MARCH 8, 2016Google’s Latest Steps to Increase Its Use of Renewable Energy DEC. 3, 2015
Although much of Apple’s manufacturing is done offshore, it still has extensive needs for electric power in the United States — and not only for the sprawling new corporate campus it is building at its headquarters in Cupertino, Calif., and its 270 retail stores around the country.
One of Apple’s biggest demands for electricity comes from operating the computing cloud through which it sells apps, music and videos to users of its iPhones, iPads and Mac computers.
Apple’s move comes as prices for renewable energy continue to plummet. And signing long-term contracts allows businesses to shield themselves from potentially higher, more volatile charges from a power company. Apple would not say how much it was paying for California Flats’s energy, but Ms. Jackson said last year at a Wall Street Journal conference that it was less than what it paid for commercial power. She said she expected the company to save hundreds of millions of dollars over the life of the contract.
Google, which received its federal energy wholesale designation from the Federal Energy Regulatory Commission in 2010, is a big proponent of the approach Apple is now taking.
“Running any kind of business, having predictability in terms of your operating costs can be very important,” said Gary Demasi, director of operations for data center energy and location strategy at Google, which has been a leading investor in and user of clean energy. “Renewable energy, from a cost perspective, is now competitive with other forms of energy, much more so than it was a few years ago.”
In the United States, the generating capacity of corporate clean energy projects has more than doubled each year since 2013, according to theBusiness Renewables Center at the Rocky Mountain Institute, which tracks publicly announced deals. In 2015, 11 companies signed up for 3.23 gigawatts’ worth of projects, roughly the equivalent of five coal plants and up from 1.18 gigawatts the year before.
Executives face greater pressure from shareholders and customers to show that they are doing their part to fight climate change. At the same time, corporate energy use has exploded, driven in many cases by the ravenous demands of the data cloud.
“We are all becoming very large energy players, and this is a shift,” said Brian Janous, director of energy strategy at Microsoft. “Energy is not something that Microsoft or Amazon or Google really ever had to think much about prior to the advent of the cloud.”
Helping drive that shift are environmental groups like the World Resources Institute. In May, it helped create the Renewable Energy Buyers Alliance, a coalition of nonprofits that has more than 60 corporations in its network, including McDonald’s and General Motors, as well as Google and Walmart
Electric utilities have begun to respond by creating products and services to meet the corporate demand for clean energy, said Letha Tawney, the World Resources Institute’s director of utility innovation.
One such product is a green tariff. It was pioneered in North Carolina by Duke Energy and is now under consideration in about a dozen states. It allows companies to designate that they are paying for a renewable energy supply.
Another is a synthetic or virtual power purchase agreement, under which companies contract to buy the output of a clean power plant, as Apple is doing with California Flats.
Although the companies say these arrangements mean they are running their businesses on renewable energy, in reality the clean power often does not flow directly to their facilities. They typically buy the renewable energy in amounts to match what they draw from the grid — a system of swaps that Ms. Jackson of Apple likened to using an A.T.M.
“The dollar you deposit in the bank might not be the exact same bill that you get out,” she said.
Robert F. Shapiro, a partner at the law firm Chadbourne & Parke who focuses on project finance and energy, describes it as meaningful symbolism.
“They’re actually getting power from their local utility, which may be coal,” Mr. Shapiro said. “But they’re deemed to have put into the world carbon-neutral energy, which they are deemed to have used for their load.”
To keep track of the clean energy credits, power generators work with registries to issue numbered certificates.
“The power flows into the grid. The electrons go where they go,” Ms. Tawney said. “But because there’s a renewable-energy certificate, no one else can claim the same zero-carbon benefit.”
Such complexities are necessary, executives and clean energy advocates say, because it is not often feasible to install enough renewable-power generators at corporate sites to meet companies’ full energy needs.
Walmart, despite having installed solar panels, wind turbines and fuel cells at stores and distribution centers, can nonetheless meet only about a third of those operations’ energy needs. So it also buys renewable energy from generators and utilities, said David Ozment, director of energy at Walmart stores.
Procter & Gamble, another member of the energy buyers’ alliance, has arranged to purchase all of the steam from a biomass generator under construction at a plant in Georgia where it makes Charmin toilet paper and Bounty paper towels, said Jack McAneny, the company’s director of sustainability.
But that was possible, he said, only because of the plant’s location near a source of waste wood and pulp for fuel and the cooperation of P&G’s partners. Among those partners are the local utility, Georgia Power, which will buy the electricity from the generator for its customers from Constellation, the company that developed and will own and operate the generator.
At Apple, where the purchase or production of renewable energy has more than tripled since 2012, the company would prefer to not have to go to great lengths to ensure a clean energy supply, Ms. Jackson said. But the public energy grid is simply still too dependent on carbon-based fuels to make that possible.
“If we had our preference, we’d just be able to say, ‘We want 100 percent green power everywhere we use power,’” Ms. Jackson said. “The best would be if we could run every one of our stores, every one of our data centers, every office complex, every building we have, on 100 percent renewable — and if we didn’t have to spend a whole bunch of our time and energy figuring out how to get that done.”
http://www.nytimes.com/2016/08/24/business/energy-environment/as-energy-use-rises-corporations-turn-to-their-own-green-utility-sources.html
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EPA Sets December 2021 Target For Most Areas To Attain PM2.5 NAAQS
Aug 23, 2016 | Inside EPA
By Stuart Parker
EPA is setting a December 2021 target for most parts of the country to attain its 2012 fine particulate matter (PM2.5) national ambient air quality standard (NAAQS) of 12 micrograms per cubic meter (ug/m3), although some areas with worse levels of PM2.5 could have until December 2025 to cut emissions and comply with the standard.
The agency detailed the attainment deadlines in a final rule slated for publication in the Aug. 24 Federal Register that also specifies how states should craft state implementation plans (SIPs) outlining the emissions controls they will put in place to reduce levels of PM2.5 and meet the limit. Publication of the rule will trigger a Clean Air Act 60-day clock for states, industry groups, environmentalists or others to file legal challenges to the rule.
The requirements apply to areas currently designated in nonattainment with the PM2.5 NAAQS -- which EPA tightened in 2012 from the prior 1997 limit of 15 ug/m3 -- and any areas classified nonattainment in the future.
All nonattainment areas are currently in the “moderate” nonattainment category, and their SIPs are already due with the agency by October -- 18 months after designation as nonattainment in April 2015. Moderate areas must attain the NAAQS by December 2021, or be reclassified to “serious” status -- although areas may be reclassified as serious before this date. Areas reclassified to serious must attain, as the latest, by December 2025.
Serious areas that fail to attain must submit new SIPs aimed at achieving at least 5 percent PM2.5 pollution reductions annually. EPA currently lists 25 nonattainment areas for one or more PM2.5 NAAQS still in effect, including seven in California. States and industry groups are eager to avoid nonattainment status because it can mean SIPs imposing stricter controls on industry, which the agency's critics say hurts local economies.
The final rule “is intended to apply to areas designated nonattainment for the 2006 24-hour PM2.5 NAAQS, the 2012 annual PM2.5 NAAQS, and any future revisions to these NAAQS,” EPA says in a fact sheet.
Emissions Controls
In addition to setting the deadlines for SIPs and attainment of the NAAQS, the final rule also details the process for determining pollution control strategies, such as reasonably available control technology for areas in moderate nonattainment and tougher best available control technology for areas in the serious nonattainment category, and guidelines for attainment demonstrations showing how areas will meet the standards.
Also, the rule contains measures for measuring “reasonable further progress,” which states must show in their SIPs, “contingency measures” for areas that fail to make such progress, and provisions to revoke the 1997 annual PM2.5 NAAQS of 15 ug/m3, which was superseded by the tougher 2012 standard.
The rule applies the Clean Air Act's “subpart 4” provisions, which are specific to particulate matter including larger “coarse” particulate, or PM10, rather than the less onerous “subpart 1,” which applies to NAAQS in general.
The U.S. Court of Appeals for the District of Columbia Circuit issued a ruling in 2013 in Natural Resources Defense Council (NRDC) v. EPA that EPA had misapplied subpart 1 provisions to PM2.5, which EPA established as a separate pollutant with its own NAAQS in 1997. In its ruling, the court agreed with environmentalists that PM2.5 is a subset of PM10, and therefore the PM-specific air law provisions should apply.
More recently, the court issued a July 29 ruling in WildEarth Guardians, et al. v. EPA, et al. that deferred to EPA's decisions regarding how to set SIP deadlines required under the tougher subpart 4 schedule, accepting the agency's view that it cannot retroactively impose deadlines on states that the states were not previously aware of. The unanimous decision supports EPA's discretion in interpretation of air law provisions, and may help the agency to defend the implementation timetables contained in its new rule if any groups challenge them.
Pollution 'Precursors'
The new rule also contains provisions on how states should evaluate the impact of air pollution “precursors” that lead to PM2.5 formation on NAAQS attainment, as required by the D.C. Circuit's ruling in NRDC.
EPA presents states with several options for treatment of precursors, and also advances the concept of “expeditious attainment,” where states can demonstrate attainment ahead of the prescribed schedule and hence escape nonattainment earlier. “For the purposes of this rule, the EPA considers that for all PM2.5 nonattainment areas, the PM2.5 precursors for regulatory purposes are the four scientific precursors that the EPA has previously identified,” which are sulfur dioxide, nitrogen oxides, volatile organic compounds and ammonia, EPA says.
The rule describes “optional approaches for demonstrating that a particular precursor is not a significant contributor to ambient PM2.5 levels that exceed the standard in a particular nonattainment area,” including a “comprehensive precursor demonstration” that involves analysis of all emissions sources and a “major stationary source” precursor demonstration that only examines large sources classified as “major” under the air law.
EPA says the analysis could also include the nonattainment New Source Review (NNSR) precursor demonstration, which is required specifically to exempt certain pollution sources from NSR permitting.
“Under the NNSR precursor demonstration, the state would need to conduct an analysis to evaluate the sensitivity of PM2.5 levels in the nonattainment area to an increase in emissions of a particular precursor in the area, simulating the response of the atmosphere (and associated PM2.5 concentrations) to the addition of one or more new or modified stationary sources in the nonattainment area,” EPA says.
However, “A state would need to pair the NNSR precursor demonstration with another type of precursor demonstration to address control requirements beyond NNSR,” EPA adds.
http://insideepa.com/daily-news/epa-sets-december-2021-target-most-areas-attain-pm25-naaqs
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