Preview Newsletter
ACC AM 9/28/16
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(ACC Mentioned) Analyzing Economic Activity “Like Reading A Novel”
Sep 27, 2016 | Valuewalk
Analyzing economic activity is like reading a novel being written in real time. The best stories have major plots and multiple sub-plots. -
Congress Passes Toxic Substances Control Act, Sept. 28, 1976
Sep 28, 2016 | Politico
By Andrew Glass
Congress passed the Toxic Substances Control Act on this day in 1976. It was signed into law by President Gerald Ford on Oct. 11. The legislation empowered the Environmental Protection Agency to track some 75,000 industrial chemicals being produced in or imported into the United States. -
US EPA Receives D4 Environmental Testing Information
Sep 28, 2016 | Chemical Watch
The US EPA has announced receipt of environmental testing information on octamethylcyclotetrasiloxane (D4), submitted following a TSCA Enforceable Consent Agreement (ECA). -
Crystal Clean to pay $500,000 after allegations of violating EPA's PCB rules
Sep 27, 2016 | Legal Newsline
By Mark Iandolo
Crystal Clean LLC of Elgin, Illinois, will pay $400,000 for new energy-efficient lighting at several schools in Gary, Indiana, to resolve allegations of violating rules regarding the handling of polychlorinated biphenyls (PCBs), the U.S. Environmental Protection Agency (EPA) has announced. -
Obama's Climate Rule Has Its Long Day In Court
Sep 27, 2016 | E&E Greenwire
By Amanda Reilly
The most drawn-out debates during oral arguments over the Obama administration's signature climate rule in the U.S. Court of Appeals for the District of Columbia Circuit today centered on whether the rule is "transformative" and on the reach of U.S. EPA's authority under the Clean Air Act. -
Power-Plant-Emissions Court Case Raises Questions on EPA Rules’ Scope
Sep 27, 2016 | The Wall Street Journal
By Amy Harder
Defenders and detractors of President Barack Obama’s centerpiece climate-change regulation faced critical questions from a federal court Tuesday in a lawsuit that will have a far-reaching impact on how the nation fuels its electricity -
Oral Arguments Cast A Shadow On Capitol Hill
Sep 28, 2016 | E&E Daily
By Hannah Hess
While lawyers wrangled over the fate of the Clean Power Plan in a federal court yesterday, the deliberations cast a shadow on lawmakers a few blocks away in the Capitol. -
Clean Power Plan Scrutinized Through Lens of Supreme Court
Sep 28, 2016 | BNA Daily Environment Report
By Andrew Childers
Federal appellate judges grappled with how to evaluate the Obama administration's carbon dioxide emissions limits for the power sector in light of recent U.S. Supreme Court decisions that endorsed the Environmental Protection Agency's ability to regulate utilities while cautioning against reading the agency's authority too broadly (West Virginia v. EPA, D.C. Cir. en banc, No. 15-1363, 9/27/16). -
Reviewing ESPS, Judges Grapple With Congress' Role In Climate Policy
Sep 27, 2016 | Inside EPA
By Dawn Reeves and Lee Logan
The 10 appellate judges hearing oral arguments over EPA's power plant rule appeared skeptical of claims by opponents that the rule is unlawful because the agency already regulates power plants' air toxics emissions, but they grappled with arguments that the rule is unlawful because Congress has not spoken directly on the matter. -
Maryland Fracking Plan Called Nation's Most-Stringent
Sep 28, 2016 | BNA Daily Environment Report
By Kathy Lundy Springuel
The Maryland Department of the Environment (MDE) proposed to address hydraulic fracturing through what its secretary called the most-stringent such plan in the U.S. -
States Consider Ways to Reuse Fracking Wastewater
Sep 28, 2016 | BNA Daily Environment Report
By Stephen Lee
State environmental agencies are grappling with ways to reuse the water generated as an oil, gas and fracking byproduct, sometimes under pressure from both lawmakers and the public, a group of agency chiefs said Sept. 26. -
The Presidential Politics of Energy Policy
Sep 27, 2016 | Real Clear Energy
By Tim Doyle
Climate change is the new energy policy. President Obama has shifted the nation in recent years away from the abundance of oil and natural gas to cleaner, though more expensive, renewable energy sources. -
Pipeline Fight Threatens Obama’s Tribal Legacy
Sep 28, 2016 | The Hill - E2 Wire
By Devin Henry
Tribes and their allies say President Obama can cement his legacy on American Indian issues by rejecting a controversial pipeline project near tribal land in North Dakota. -
Elk River Chemical Spill Class Action Proceeds
Sep 28, 2016 | BNA Daily Environment Report
By Steven M. Sellers
Eastman Chemical Co. must face a jury over its class action liability for a 2014 toxic chemical spill that fouled the Elk River and tainted the drinking water of Charleston, W. Va. (Good v. Am. Water Works Co., Inc., S.D. W.Va., No. 14-cv-01374, 9/26/16). -
The Flint Water Crisis Is Not Over and Congress Must Not Leave Them Behind
Sep 28, 2016 | Environmental Defense Fund
By Jack Pratt
More than two years since a public health disaster hit Flint Michigan, Congress has yet to provide needed assistance. Some on both sides of the aisle are working to advance help for Flint, but the path forward remains unclear, with little time to spare on Congress’ legislative calendar. Congress must not leave town without taking action to help Flint. -
Washington Commission Awards Funds For Oil-Train Crossing Upgrades
Sep 27, 2016 | Progressive Railroading
The Washington Utilities and Transportation Commission(UTC) approved more than $250,000 in grants to fund safety upgrades at a rail crossing on an oil train route in Spokane County, the commission announced last week. -
(ACC Blog) The Role Of Chemistry In Sustainable Buildings: Greenbuild Sessions Highlight Materials Health, Safety And Innovation
Sep 27, 2016 | American Chemistry Matters
Innovations in chemistry make an important contribution in developing the products and materials that help create attractive, durable, modern buildings. High performance spray foam insulation helps keep heat and cooled air inside a building, lowering energy costs. -
EPA Staff Finds Retaining NO2 NAAQS Will Satisfy Air Law Safety Mandate
Sep 27, 2016 | InsideEPA
By Stuart Parker
EPA staff conducting a Clean Air Act-mandated review of the agency's nitrogen dioxide (NO2) national ambient air quality standard (NAAQS) is recommending against any changes to the NAAQS, saying that the existing NO2 limit satisfies an air law mandate that the standard protect human health with an adequate margin of safety. -
Current Nitrogen Dioxide Air Standards Adequate, EPA Says
Sep 28, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
The head of the Environmental Protection Agency should consider retaining the current national, health-based standards for nitrogen dioxide, according to a draft policy document prepared by agency staffers. -
States Tailor Their Message to Spread Environmental Justice
Sep 28, 2016 | BNA Daily Environment Report
By Stephen Lee
State agencies are finding themselves having to convince not just residents but also local businesses about the environmental justice work they undertake, a panel of agency heads said at an Environmental Council of the States meeting Sept. 26 in Wheeling, W.Va.
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(ACC Mentioned) Analyzing Economic Activity “Like Reading A Novel”
Sep 27, 2016 | Valuewalk
Analyzing economic activity is like reading a novel being written in real time. The best stories have major plots and multiple sub-plots. Economies like stories include personalities driven by the desire to do good and those whose interests are strictly for personal gain. Mostly what is appears in the media is what is trending at the moment. What is heard is what momentarily gets enough attention to attract a passing mention. The short term focus is a particular data point as having been better or worse than expected. This difference is supposed to forecast our future. For a few moments it captures attention. A few days later another data point is equally promoted often forecasting a different future. Economic reality is far different.
Economic activity evolves slowly, over years. There is no rule that economic expansion has a time limit. It is not about points in time or a report being different than expected upsetting our view of the future. The truth in any data point lays in how those points form a trend. The truth lays in how a specific trend describes human activity in a particular part of the economy. The overall truth lays in how the multiple economic trends combine to tell us with reference to our past how various parts of the economy are performing today. The whole is comprised of many parts. The media rush to get to the next story is not designed to bring the whole picture to our attention. As investors, we have to do this for ourselves. To invest throughout an investment/business cycle, we have to think long-term and at the same time view the markets and the economy as a human story being written in real time without any trend having a predictable outcome. We must watch each trend develop slowly and make investment decisions based on past experience.The CAB
Our economy remains mixed with many investors fearful. Overall, the Chemical Activity Barometer(CAB) is hitting a new cycle high. This index, first introduced in 2012 by the American Chemical Council, has shown itself to track economic and predict stock market activity back to 1919. Chemical demand as a useful economic measure is based on the fact that nearly everything we consume on a daily basis is tied to chemicals. Chemicals are intimately part of our clothing, housing, transportation, health, food and entertainment demand. The CAB is more often than not a leading indicator of equity markets. The reason for this is based on the fact that most investors wait till the news is better than expected before buying stocks. Trends in the CAB continue to register a stronger economy than most believe we have today. The latest level comes in at 104.61. This reflects a much more robust economy than many believe. The CAB explains why we have record Real Retail Sales, Real Personal Income and Employment. Nonetheless, economic activity is not uniform.The Housing Sector
Housing reflects a less robust situation. The National Assoc of Home Builders Housing Market Index(HMI) at 64and the Monthly Supply of New Homes at 4.6mos have been reported by many as excellent signs of strength in the housing sector. Not so robust have been Single-Family Startsand the Residential Construction Employment which remain well below historical levels. Single-Family Starts continue to struggle at 1990 recession levels.
The HMI and Monthly Supply reports reflect builder expectations, i.e. their market psychology. Builders in response to tight lending standards have kept new home inventories low and focused on the more expensive and more profitable sector of housing. Most housing being built is done so with a sale and financing in hand. These are often homes with some customization. There is little speculative building and inventories have been kept low and in line with actual market demand.Residential Construction Employment is estimated to be 500,000 less today than what would be justified by our long-term housing demand. The input normally seen historically from housing is missing in today’s economy. While market psychology measures are good, the economics of housing are not robust by any measure.
Fall 2015, as regulators discussed additional banking restrictions, I recommended the avoidance of housing and banking related issues. The Fed Dec 2015 Fed Funds 25bps rise resulted in 100bps contraction in credit spreads, i.e. Credit Tightening . It is too early to tell, but the surprise fall inSingle-Family Starts to 722,000 for Aug 2016 may be a result of this additional credit tightening. My recommendation is to avoid these sectors till there is evidence that credit spreads are widening.Natural Resources
The rise in the US$ 2014-2016 has had wide ranging impact on energy and infrastructure companies. Quite a few companies are weathering the storm with lower earnings yet still solid businesses. After all, supplying energy to our expanding economy remains a sizable part of our economic activity.
To recommend this asset class with some confidence one needs to perform enough individual company analysis to support an overall asset class approach. If one cannot justify buying a number of individual issues, then one should not be buying into an asset class. If fundamentals support buying individual issues, they in turn support owning the asset class. Oceaneering Intl(OII) is a good example. OII’s long-term return as shown in the price history has been well above the long-term 6.1% return of the SP500. That current levels are attractive to value buyers requires comparison to other well-known and well-managed companies(XOM) as well as to the sector index(XOI). OII has recent insider buying above the current range.
OII’s price history reflects its financials and the sector’s general response to oil’s rise above$100BBL during the 2008-2014 period. The price correction correlates to oil’s fall to below $30BBLin 2016.
Corporate insiders are historically ‘value buyers’. Buying activity is always much more important than selling activity. There has been considerable buying activity in Natural Resources and infrastructure issues and the same is present in OII.
OII’s Sept 22, 2016 Presentation combined with its financials reveals a well-run business working successfully through a down turn.
Johnson Rice Energy Conf Presentation: http://www.oceaneering.com/wp-content/uploads/2016/09/2016-JRCO-Presentation.pdf
Financials reveal a strong operating history with Earnings Per Share more than tripling as oil rose over $100BBL but fell as US$ rose and oil prices fell. Earnings remain positive with a TTM(Trailing Twelve Month) level of $1.46. Oil and US$ have a long history of being inversely correlated and the US$ in turn has a long history correlated to global trade. The US$ returning to its historical trend should cause the price of oil to rise carrying XOI and its constituent companies higher.
http://www.valuewalk.com/2016/09/analyzing-economic-activity-like-reading-novel/
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Congress Passes Toxic Substances Control Act, Sept. 28, 1976
Sep 28, 2016 | Politico
By Andrew Glass
Congress passed the Toxic Substances Control Act on this day in 1976. It was signed into law by President Gerald Ford on Oct. 11. The legislation empowered the Environmental Protection Agency to track some 75,000 industrial chemicals being produced in or imported into the United States.
In enacting the legislation, Congress found that “human beings and the environment are being exposed each year to a large number of chemical substances and mixtures.” The lawmakers held that “among the many chemical substances and mixtures constantly being developed and produced, there are some whose manufacture, processing, distribution in commerce, use or disposal may present an unreasonable risk of injury to health or the environment” and therefore need to be regulated.
The law charges the environmental agency with screening these chemicals. The EPA requires the corporate reporting and subsequent testing of those substances that could pose a hazard to human health. The EPA can ban the manufacture and importation of those chemicals that government regulators find pose an unreasonable risk to the public.
The law “grandfathers” most existing chemicals. In practice, however, many “grandfathered” substances are actually tested because the European Union makes no such exemption under its own Registration, Evaluation and Authorization of Chemicals legislation.
Despite the “grandfather” provisions of the act, the EPA since 1977 has banned the sale of nearly all polychlorinated biphenyls, or so-called PCBs, as highly toxic organic pollutants. For many years, PCBs were widely used as cooling and insulating fluids in both commercial and home air conditioning units.
The Occupational Safety and Health Administration, an arm of the Labor Department, protects prospective “whistleblowers” from being fired if they seek to provide the government with evidence that their employers are releasing toxic substances into the environment.
In June of this year, Congress approved an updated toxic chemicals control act that gave the EPA broader powers to impose fees to regulate chemicals. When President Barack Obama signed the bill into law, he remarked that “even in the current polarized political process here in Washington, things can work.” Lawmakers and industry groups were largely supportive of the new law, while environmental advocates offered more mixed reactions.
http://www.politico.com/story/2016/09/this-day-in-politics-sept-28-1976-228606
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US EPA Receives D4 Environmental Testing Information
Sep 28, 2016 | Chemical Watch
The US EPA has announced receipt of environmental testing information on octamethylcyclotetrasiloxane (D4), submitted following a TSCA Enforceable Consent Agreement (ECA).
D4 is used as an intermediate for silicone copolymers and in industrial processing applications as a solvent, a finishing agent, and an adhesive and sealant chemical. Its consumer and commercial purposes include paints and coatings, plastic and rubber products, polishes, soaps, detergents, adhesives and sealants.
The EPA has voiced concern with the substance’s environmental effects, amid evidence that it persists in sediment and bioaccumulates in aquatic species.
The ECA is part of a testing consent order issued by the EPA in 2014. Under it, five companies agreed to certain environmental testing for the agency, to characterise sources and pathways of release of D4 to the environment.
The EPA will use the data to develop environmental exposure and risk assessments, according to a Federal Register notice.
In addition, it could be used by other federal agencies, including:the Agency for Toxic Substances and Disease Registry (ATSDR);the Consumer Product Safety Commission (CPSC); andthe FDA.
The submitted tested information is available on the public docket.
https://chemicalwatch.com/49901/us-epa-receives-d4-environmental-testing-information
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Crystal Clean to pay $500,000 after allegations of violating EPA's PCB rules
Sep 27, 2016 | Legal Newsline
By Mark Iandolo
CHICAGO (Legal Newsline) – Crystal Clean LLC of Elgin, Illinois, will pay $400,000 for new energy-efficient lighting at several schools in Gary, Indiana, to resolve allegations of violating rules regarding the handling of polychlorinated biphenyls (PCBs), the U.S. Environmental Protection Agency (EPA) has announced.
Crystal Clean also will pay a $100,000 fine. The new lights replace old light fixtures that may have contained PCBs.
PCBs – man-made organic chemicals used in paints, industrial equipment, plastics and cooling oil for electrical transformers – can cause cancer in animals and are suspected to be carcinogens for humans. The EPA banned the substance in 1978 but, prior to that, more than 1.5 billion pounds of the substance were manufactured in the United States.
The EPA pursued this case under the Toxic Substances Control Act. Crystal Clean’s $400,000 project will be regarded as a Supplemental Environmental Project under the consent agreement settling the case.
http://legalnewsline.com/stories/511012741-crystal-clean-to-pay-500-000-after-allegations-of-violating-epa-s-pcb-rules
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Obama's Climate Rule Has Its Long Day In Court
Sep 27, 2016 | E&E Greenwire
By Amanda Reilly
The most drawn-out debates during oral arguments over the Obama administration's signature climate rule in the U.S. Court of Appeals for the District of Columbia Circuit today centered on whether the rule is "transformative" and on the reach of U.S. EPA's authority under the Clean Air Act.
The 10-judge panel heard nearly seven hours of arguments over the Clean Power Plan, with proceedings wrapping at around 5:45 p.m. in the packed courtroom.
Challengers tried to convince the judges that the Clean Power Plan was unlike anything EPA had ever done. They argued that the rule was both transformative in its effects on the electricity sector, as well as transformative in EPA's reading of the law.
The Clean Air Act is "not written in a way that is perfectly ideal for the regulation of carbon dioxide," Harvard Law School professor Laurence Tribe argued for industry. "Let's admit it."
Several times, judges brought up previous Supreme Court decisions finding that EPA has the authority to regulate greenhouse gases. But Judge Brett Kavanaugh said that challengers' arguments hit on concerns that the Clean Air Act was a "thin statute" to address an "urgent problem."
"War is not a blank check. Global warming is not a blank check, either," said Kavanaugh, an appointee of President George W. Bush.
The Clean Power Plan finalized last August requires states to develop strategies for reducing CO2 emissions from existing power plants. Overall, the rule aims to slash power plants' CO2 emissions by 32 percent from 2005 levels by 2030.
The rule incorporates three "building blocks": heat-rate improvements at coal-fired steam plants, switching to natural-gas-fired plants and switching to renewable forms of energy.
Dozens of entities, including 27 states, have raised various challenges to the rule, including that EPA exceeded its Clean Air Act authority by requiring emission reductions that can't be met by individual sources.
Eighteen states and the District of Columbia, as well as cities, environmental groups and some industry groups, are defending EPA in the court battle.
In an action said to be unprecedented, the Supreme Court in February froze the rule while the battle over its legality plays out in the courts.
Today, in another highly unusual step, the D.C. Circuit heard the case en banc, with a full judicial panel. Six judges appointed by Democratic presidents and four judges appointed by Republicans heard from 16 attorneys.
The court originally scheduled 218 minutes of oral arguments, but the day stretched long as judges kept most attorneys well past their allotted time.
EPA Administrator Gina McCarthy was in attendance until shortly before 1 p.m., while other high-level agency officials, including acting air chief Janet McCabe, remained in the courtroom until the end.
Most of the morning's proceedings focused on EPA's authority under the Clean Air Act and whether the administration was attempting to use the law to transform the nation's electricity sector to cleaner sources of energy.
Several conservative judges suggested that Congress — not U.S. EPA — should be tasked with making major environmental policy decisions. They cited one of the late Supreme Court Justice Antonin Scalia's last decisions, in which he wrote that judges should view with "a measure of skepticism" claims that EPA has discovered a "long-extant statute" to regulate a significant portion of the economy (Greenwire, Sept. 27).
The 10 judges today also spent nearly an hour and a half on challengers' contention that EPA was trying to double-regulate power plants under two different sections of the Clean Air Act.
Elbert Lin, solicitor general of West Virginia, argued that the Clean Air Act is "clear" in prohibiting EPA from regulating power plant emissions under Section 111(d) of the Clean Air Act because the agency is already regulating emissions from those sources under Section 112 through its mercury rule.
The issue arose because the House and the Senate passed two different versions of Section 111(d) into law in the Clean Air Act amendments of 1990. The Obama administration argues that the Senate version said only that EPA couldn't redundantly regulate a pollutant.
Judges appeared to agree that Congress' intent was murky.
Kavanaugh joked he needed a "stiff drink" after going through the "hall of mirrors" presented in petitioners' arguments that the House version was the one Congress meant to pass.
Amanda Berman, an attorney for the Justice Department, argued that EPA interpreted the legislative glitch to apply only to other hazardous air pollutants and to not bar the agency from regulating carbon dioxide emissions.
Several Democratic appointees on the panel said they didn't think Congress meant to restrict EPA from regulating CO2 emissions from power plants through Section 111(d).
Challengers have failed to show where Congress "intended to create this giant loophole" whereby EPA can't regulate an "entirely different pollutant" from the same source, said Judge Judith Rogers, an appointee of President Clinton.
Challengers also sought to convince judges that EPA exceeded its constitutional bounds by not giving states a choice to not comply with the Clean Power Plan.
While EPA argued that states could choose to have a federal plan under Clean Power Plan, Tribe argued that was a false choice because a federal plan is a "draconian alternative."
But Judge David Tatel, also a Clinton appointee, said he didn't see the difference between how EPA was using its Clean Air Act authority and the Americans With Disabilities Act. The ADA compelled states to adjust building permits to accommodate people in wheelchairs.
"What's the difference between this case and the ADA example?" Tatel asked. "Both statutes require action by state authorities."
The panel of judges said that other challenges by state and industry challengers may be premature, including that EPA's final rule differed too much from its proposal.
Petitioners didn't give EPA a chance to respond to several administrative petitions for reconsideration that address the issue, Rogers said.
The judges also said it might be too early to tell regarding states' concerns that their specific goals under the Clean Power Plan won't be achievable.
The court is expected to decide the case in early 2017.
http://www.eenews.net/greenwire/stories/1060043514
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Power-Plant-Emissions Court Case Raises Questions on EPA Rules’ Scope
Sep 27, 2016 | The Wall Street Journal
By Amy Harder
WASHINGTON—Defenders and detractors of President Barack Obama’s centerpiece climate-change regulation faced critical questions from a federal court Tuesday in a lawsuit that will have a far-reaching impact on how the nation fuels its electricity.
The U.S. Court of Appeals for the District of Columbia Circuit heard several hours of oral arguments, with a focus on the separation of powers between Congress and the executive branch, and what constitutes a power plant source.
The Environmental Protection Agency issued the regulation, called the Clean Power Plan, last year, requiring a 32% reduction in power-plant carbon emissions by 2030 compared with 2005 levels. The rules are the flagship policy of Mr. Obama’s climate agenda and represents the core of his administration’s commitment to a United Nations agreement in Paris last year to address climate change.
The court’s 10 judges hearing the case are across the ideological spectrum and said they recognized the Obama administration was acting on climate change because Congress has opted not to and in response to a Supreme Court decision almost a decade ago giving the EPA legal authority to regulate carbon emissions. But they raised questions about whether the scope of the rules go further than lawmakers intended.
The initial session of the arguments reflected a mixed, inquisitive engagement from the court that left stakeholders on all sides parsing questions and reactions, and searching for signs of which way the judges are leaning.
Addressing climate change through policy is “laudable,” said Judge Brett Kavanaugh, a judge appointed by President George W. Bush, adding, “The Earth is warming. Humans are contributing. I understand the frustration with Congress.”
But Judge Kavanaugh said Congress needs to clearly assign an agency the authority to address a major policy issue like climate change. It’s not clear Congress has done so in this case, he said, despite the EPA’s assertion that it is relying on part of the Clean Air Act.
“Global warming is not a blank check,” Judge Kavanaugh said.
The EPA regulation aims to push utilities to shift from coal plants to cleaner energy sources like natural gas, wind and solar.
The judges focused much of their questioning on whether the EPA had overstepped its legal authority by seeking to broadly compel this shift away from coal, a move the EPA calls the Best System of Emission Reduction, or BSER. The states and companies suing the EPA argue the agency doesn’t have the authority to regulate anything outside of a power plant itself.
“This all turns on the clarity of the BSER,” said David Tatel, a judge appointed by President Bill Clinton.
Judge Patricia Millett, appointed by Mr. Obama, expressed concern that the administration was in effect requiring power plants to subsidize companies competing with them for electricity demand.
“That seems to be quite different” from traditional regulation, Judge Millett said.
The judges also debated an apparent legislative discrepancy nearly 30 years old that could raise questions about whether the EPA has the legal authority to regulate carbon emissions from power plants in the first place.
The judges themselves often seemed as confused as court watchers on that question. “I think the language is very convoluted at best,” Judge Kavanaugh said.
EPA Administrator Gina McCarthy and top White House adviser Brian Deese were among the hundreds of attendees in the courtroom and overflow rooms. Some people arrived as early as Monday evening to reserve spots.
Industry associations and a group of mostly Republican-led states have filed over three dozen lawsuits challenging the rules. Another group of mostly East and West Coast states, along with environmental groups, have backed the EPA in the case.
The court’s decision, not expected for at least a few months, will pave the way for an almost inevitable Supreme Court fight. Even a partial rebuke of the Clean Power Plan could make it impossible for the U.S. to hit the goals Mr. Obama pledged in the Paris climate deal.
Tuesday’s oral arguments are the latest twist in an already surprising legal saga. A conservative Supreme Court majority intervened in February to stay the EPA rules while the case proceeds, putting the measures on pause. That 5-4 order came four days before Justice Antonin Scalia died, creating uncertainty about the court’s direction.
In another unusual development, the appeals court Tuesday skipped its usual routine of using a three-judge panel to hear the case, opting instead for a roster of 10 judges, a sign of the case’s gravity. The judges included six appointed by Democratic presidents and four who were Republican-appointed.
http://www.wsj.com/articles/power-plant-emissions-case-begins-with-questions-on-epa-rules-scope-1475006428
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Oral Arguments Cast A Shadow On Capitol Hill
Sep 28, 2016 | E&E Daily
By Hannah Hess
While lawyers wrangled over the fate of the Clean Power Plan in a federal court yesterday, the deliberations cast a shadow on lawmakers a few blocks away in the Capitol.
Senate Republicans spent part of their weekly leadership lunch discussing the first few hours of the showdown over West Virginia v. U.S. EPA, the case challenging the Obama administration's landmark Clean Power Plan.
Meanwhile, the issue did not come up among Democrats dining down the hall, according to sources in the room, though a rehash of oral arguments in the case dominated discussion at the pre-lunch meeting of the Senate Climate Task Force.
Sen. Sheldon Whitehouse (D-R.I.) made yesterday's first and only Senate floor reference to the rule around 5 p.m., during his 148th speech urging colleagues to "wake up" to the threats of climate change.
Opponents of the plan from both chambers held their fire until an hour later. Lawmakers from West Virginia, Oklahoma and Montana stood shoulder-to-shoulder in a sunset press conference to blast President Obama for regulatory overreach and show support for the Republican state attorneys general arguing the case.
"The arguments have gone longer, and I'm [choosing] to take that as a good sign," said Sen. Shelley Moore Capito (R-W.Va.).
On a day when the Senate failed to clear a key hurdle in the down-to-the-wire process to pass a continuing resolution to fund the government after Sept. 30, Capito said she and her colleagues — especially those hailing from coal-mining states most affected by the plan — had been keeping an eye out for updates from the U.S. Court of Appeals for the District of Columbia Circuit.
"There's obvious, clear opposition to this, but the president moved forward," Capito said. "He's attempted to skirt, I believe, the legal limits of the Clean Air Act and impose new regulation after regulation."
The scope of the legal battle, joined by 28 states, shows the "breadth and the depth of the overreach," said Sen. Steve Daines (R-Mont.).
Senate Environment and Public Works Chairman Jim Inhofe (R-Okla.) said he has been fighting similar cap-and-trade proposals on Capitol Hill for more than a decade. In an opinion published in The Wall Street Journal ahead of the arguments, Inhofe declared the case "a watershed for the Constitution's separation of powers that will echo well beyond this Administration."
Opponents, including Sen. Joe Manchin (D-W.Va.), expressed hope the 10 judges deciding the Clean Power Plan's fate would be convinced on arguments about the statutory and constitutional limits of EPA's power to regulate the energy industry.
"I think, hopefully, that we will prevail and we will continue to fight until we are victorious in this," Manchin said.
The lawmakers were later joined by the Republican officials leading the charge in court, who trekked over to Capitol Hill after the arguments concluded. West Virginia Attorney General Patrick Morrisey, Texas Attorney General Ken Paxton, Oklahoma Attorney General Scott Pruitt, Arkansas Attorney General Leslie Rutledge and Wyoming Attorney General Peter Michael commented briefly on the partnership of the states and the case.
"I thought the judges were very attentive. I thought their questions were fantastic," Michael said.
In an unexpected move this spring, the D.C. Circuit said the case would be heard in front of the entire active court, or en banc — a move that likely speeds up its resolution. Last week, in another surprise twist, the panel was expanded to include all 10 of the courts' active judges (Greenwire, Sept. 22).
Capito said that the expanded bench showed a recognition of the importance of the case. But she also acknowledged hesitation about the political tilt of the panel, with six Democratic appointees to four Republican appointees.
"I understand the court has a reputation for being very left-leaning and that concerns me for the outcome," Capito told E&E Daily.
Democrats, including Sen. Brian Schatz of Hawaii and Sen. Ed Markey of Massachusetts, expressed confidence the Clean Power Plan would stand based on its merits.
Markey was spotted in the Senate basement yesterday afternoon holding a printed copy ofGreenwire's reporting from the courthouse. He said the judges should look at the court's 2007 decision in Massachusetts v. U.S. EPA, an opinion that gave EPA the authority to regulate greenhouse gases under the Clean Air Act and paved the way for the Obama administration's climate rules.
"I think ultimately that will control the decision," Markey said.
http://www.eenews.net/eedaily/2016/09/28/stories/1060043529
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Clean Power Plan Scrutinized Through Lens of Supreme Court
Sep 28, 2016 | BNA Daily Environment Report
By Andrew Childers
Federal appellate judges grappled with how to evaluate the Obama administration's carbon dioxide emissions limits for the power sector in light of recent U.S. Supreme Court decisions that endorsed the Environmental Protection Agency's ability to regulate utilities while cautioning against reading the agency's authority too broadly (West Virginia v. EPA, D.C. Cir. en banc, No. 15-1363, 9/27/16).
A 10-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit debated during more than seven hours of arguments Sept. 27 whether forcing utilities to shift from coal-fired generation to cleaner energy sources under the EPA's Clean Power Plan falls within the agency's Clean Air Act authority to determine the “best system of emission reduction” when setting emissions limits under Section 111(d) of the Clean Air Act or whether the agency has the authority to regulate power plant emissions at all.
The Clean Power Plan (RIN:2060-AR33), which sets carbon dioxide emissions limits on the power sector in each state to be implemented by state regulators, was issued under Section 111(d) of the Clean Air Act, a little-used provision that has never been employed as broadly as the EPA has here. That expansive approach left opponents of the rule and some judges questioning whether Congress intended to delegate such broad authority to the agency in that manner.
“This is the kind of power that's so different from what Section 111(d) is about,” Elbert Lin, solicitor general for West Virginia, argued. “This is a power even [the Federal Energy Regulatory Commission] doesn't have.”
Is Generation Shifting the ‘Best System’?
Section 111(d) requires the EPA to determine the “best system of emission reduction” that states can employ to meet the emissions standards. Though past rules under that provision have focused on emissions controls that can be employed at individual facilities, in the Clean Power Plan the EPA viewed the entire electric grid as a single system and determined that shifting generation from coal-fired utilities to cleaner alternatives would be the most efficient and cost-effective method of bringing down emissions.
Though states have used generation shifting to meet emissions limits under past EPA rules, such as the acid rain program and the Cross-State Air Pollution Rule, opponents of the Clean Power Plan argued the EPA cannot set emissions limits that intrude on states’ authority to regulate how their power sectors operate.
“This rule is clearly designed to make use of a different generation mix,” Lin said.
The EPA has argued that “system” in best system of emission reduction is broad enough to encompass many different emissions control strategies, including fostering new renewable energy. In order to overturn the Clean Power Plan, Judge David Tatel said opponents must show the Clean Air Act explicitly forbids that approach.
Limits of EPA Authority Explored
The D.C. Circuit questioned how far the EPA can interpret its Clean Air Act authority against the backdrop of a recent Supreme Court decision that limited the scope of the EPA's greenhouse gas permitting program (Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2014 BL 172973, 78 ERC 1585 (2014) ).
“When an agency claims to discover in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy, ... we typically greet its announcement with a measure of skepticism,” the late Justice Antonin Scalia wrote in language cited at the D.C. Circuit.
However, the Justice Department argued the agency is merely employing the same emissions controls it has used in past rules.
“Fundamentally, this rule is about substituting cleaner technologies for dirty technologies. That's a familiar principle,” Eric Hostetler, the Justice Department attorney representing the agency, said.
‘Bait and Switch.’
Judge Patricia Millett accused the utility industry of a “bait and switch” by supporting the EPA's ability to regulate carbon dioxide emissions from power plants under Section 111(d) of the Clean Air Act when faced with the prospect of common law nuisance cases brought by states seeking to curb those emissions, only for utilities to oppose that regulatory approach under the Clean Power Plan.
“Now we're told it's not in EPA's wheelhouse to regulate,” she said.
The Supreme Court ultimately held the EPA's authority to regulate greenhouse gases—specifically citing its authority under Section 111(d)—displaced the states’ common law claims (Am. Elec. Power Co. v. Connecticut, 564 U.S. 410 131 S. Ct. 2527, 2011 BL 161239, 72 ERC 1609 (2011)).
That decision “could hardly be more on point,” Hostetler said.
However, Peter Keisler, a partner at Sidley Austin LLP arguing for the petitioners, said the Clean Power Plan challenges are not a matter of whether the EPA can regulate carbon dioxide emissions but rather how that authority is being applied in this instance.
“There are different values being balanced here,” he said. “There are lots of technology-forcing rules. None of them achieve emissions reductions by shutting down existing sources.”
The Supreme Court has stayed the Clean Power Plan while litigation plays out.
Conflicted Amendments Weighed
Opponents of the Clean Power Plan also have argued the EPA lacks the fundamental statutory authority to regulate carbon dioxide emissions from power plants at all because those units already are subject to hazardous air pollutant limits under Section 112.
When the Clean Air Act was last amended in 1990, conflicting amendments to Section 111(d) were both signed into law. The Senate language bars the EPA from regulating the same pollutants under Section 111(d) that already are subject to regulation under Section 112. The House amendment, which is featured in the U.S. Code, can be read to prevent the EPA from regulating any industrial source such as power plants under Section 111(d) if they already are subject to toxic pollutant limits under Section 112.
Opponents of the rule argued Congress very clearly meant to prevent the EPA from regulating power plants under both sections.
“If you start with [Clean Air Act Section] 111, you can move to 112,” Allison Wood, a partner at Hunton & Williams LLP representing the power industry, said. “112 is the most draconian, most stringent you get under the Clean Air Act.”
Additionally, the Supreme Court, in a footnote to the AEP decision seemed to endorse the notion the EPA cannot regulate industrial facilities under both Sections 111(d) and 112 of the Clean Air Act simultaneously. Though the footnote was not germane to that decision and the matter wasn't briefed at the time, Kavanaugh said its inclusion does lend weight to petitioners’ arguments against the Clean Power Plan.
“That footnote, taken literally, totally supports your position, he said.
Delisting Called an Option
Instead, if the EPA insisted on regulating both greenhouse gases and toxic pollutants from power plants, it should delist them from regulation under Section 112 and set standards for all the pollutants under Section 111(d). That would substitute a national program for hazardous air pollutants under Section 112 for one that would be implemented by state regulators under Section 111(d). The EPA in 2005 had attempted to remove power plants from regulation under Section 112 as part of the Clean Air Mercury Rule, which was subsequently struck down by the court for procedural flaws.
“Delisting is extremely difficult, and I'm not sure the statutory requirements could be met,” Millett said.
Despite arguments that the House language is clear and unambiguous, judges said the language of the House amendment may be open to different interpretations, including some that would support the Clean Power Plan, as they struggled to resolve the contradiction.
“I'm with you on the idea the House amendment applies. I'm struggling with what it means,” Kavanaugh said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=97976087&vname=dennotallissues&fn=97976087&jd=97976087
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Reviewing ESPS, Judges Grapple With Congress' Role In Climate Policy
Sep 27, 2016 | Inside EPA
By Dawn Reeves and Lee Logan
The 10 appellate judges hearing oral arguments over EPA's power plant rule appeared skeptical of claims by opponents that the rule is unlawful because the agency already regulates power plants' air toxics emissions, but they grappled with arguments that the rule is unlawful because Congress has not spoken directly on the matter.
The two issues filled the bulk of the marathon first session of Sept. 27 oral arguments in West Virginia, et al. v. EPA, et al., where the U.S. Court of Appeals for the District of Columbia Circuit could determine the fate of EPA's existing power plant greenhouse gas rule, also known as the existing source performance standards (ESPS).
Supporters of the rule may have gotten a boost when Judge Nina Pillard decided last week to hear the case, ensuring that six of the 10 judges hearing the case are Democratic appointees -- though her decision also opened the door to an evenly divided court.
The afternoon session will cover constitutional claims against the rule, as well as more technical “notice” and “records-based” concerns.
One of the opponents' threshold arguments is the claim that the rule, issued under section 111(d) of the Clean Air Act, is unlawful because the agency is already regulating the plants' air toxics under section 112.
They say that the so-called 112 “exclusion” precludes the agency from regulating plants' GHGs under section 111(d), as it has done in the ESPS.
But the argument got little support during arguments, including from GOP appointee Judge Brett Kavanaugh.
Some of the Republican appointees appeared more receptive to opponents' position that EPA's ESPS -- also known as the Clean Power Plan (CPP) -- is unlawful because Congress has not directly spoken on the matter, and has not given the agency explicit authority to require generation shifting from dirtier sources of electricity to cleaner ones -- a key separation of powers argument.
Judge Thomas Griffith, another Republican appointee, told Department of Justice attorneys that it did not help their case that President Obama and other administration officials vowed to find another way to regulate power plant GHG emissions after Congress failed to enact cap-and-trade legislation during the president's first term.
He noted, for example, that Obama had said that there is “more than one way to skin a cat.”
But on the broader question of the scope of EPA's authority, some of the judges, such as Judge David Tatel, a Democratic appointee, seemed to suggest that the Supreme Court's landmark 2007 ruling in Massachusetts v. EPA -- that held GHGs are a regulated pollutant under the air law -- was a game changer that now allows this rule.
Others, including Kavanaugh, repeatedly pointed to another high court ruling on an EPA's GHG program, Utility Air Regulatory Group (UARG) v. EPA, which warned against finding broad authority in vague statutory language.
“When an agency claims to discover in a long-extant statute an unheralded power to regulate 'a significant portion of the American economy,' we typically greet its announcement with a measure of skepticism. . . . We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast 'economic and political significance,'” the high court said in its unanimous ruling in UARG.
For example, Kavanaugh cited the UARG warning, written by the late Justice Antonin Scalia, to note, “That might have been written with this case in mind.”
'Betwixt and Between'
But Judge Patricia Millett, appointed by President Obama, said she was “betwixt and between” because of the conflicts between Massachusetts and a later 2011 high court decision, American Electric Power (AEP) v. EPA, where the court held the agency's air law authority displaced common law tort claims against power plant GHGS, and theUARG “major question” requirement.
She said Massachusetts and AEP appear to tell EPA to “go forth” and regulate but questioned how that can be reconciled with UARG.
The question the judges are grappling with is which doctrine will prevail in their decision to uphold or reject the ESPS. Several wondered whether the UARG “major question” hurdle required Congress to “speak clearly” about the agency's authority.
If the court finds that the rule is such a major question, that likely would favor state and industry opponents who argue that the section of the Clean Air Act that EPA used to craft the rule is vague and not intended for a “transformative change” to the power sector.
The issue is closely connected with opponents' claim that EPA cannot set a GHG standard that assumes strategies that occur “beyond the fenceline” of regulated power plants -- a claim that some judges found sympathy with.
“It's an artificial limit in the sense that no one, of the regulated sources, can meet it” using actions within a plant's boundary, said Kavanaugh.
Lawyers for rule opponents, such as Peter Keisler, who is representing coal sector groups, charged that the ESPS requires plant owners “to invest in building other facilities” such as renewable plants, that are often direct competitors.
At one point, Griffith said that the rule “doesn't sound to me to be transformative” because it would only require marginally fewer GHG emissions from coal plants. As such, he suggested that the “major question” doctrine of the Supreme Court's 2014 ruling in UARG, and other cases, would not apply.
But when questioning DOJ attorney Eric Hostetler, Griffith suggested that the UARG language might “fit this case to to a 'T'.”
In response, Hostetler noted that the D.C. Circuit has upheld other major rules without determining they are a “major question,” including the recent case, U.S. Telecom Association et al., v. Federal Communication Commission (FCC), upholding the FCC's net neutrality rules.
He added that “when looked at in the real world,” the ESPS standards -- which presume “generation shifting” from higher-emitting plants to cleaner plants -- is based on a widely adopted practice in the sector.
Further, he said that AEP “speaks clearly” to the ESPS litigation because it discussed the same pollutant, the same source category and the same section of the air act. “It could hardly be more on point,” he said.
Opponents' interpretation would “make a mockery” of both AEP and Massachusetts, he added.
Also Millet accused opponents of “bait-and-switch” for arguing to the Supreme Court in AEP that the power sector should be regulated under the very section of the air law they are challenging here.
But Elbert Lin, West Virginia's solicitor general, said it was not the “whether” EPA should regulate power plant GHGS but “how,” and that how it has done here is unlawful.
West Virginia Attorney General Patrick Morrisey (R) told Inside EPA that he believes his side has “presented some very strong arguments” and that the court was very responsive to a number of them. He declined to predict a specific outcome here but added, “At the end of the day I feel very good our legal argument is going to prevail.”
http://insideepa.com/daily-news/reviewing-esps-judges-grapple-congress-role-climate-policy
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Maryland Fracking Plan Called Nation's Most-Stringent
Sep 28, 2016 | BNA Daily Environment Report
By Kathy Lundy Springuel
The Maryland Department of the Environment (MDE) proposed to address hydraulic fracturing through what its secretary called the most-stringent such plan in the U.S.
MDE Secretary Benjamin Grumbles said the proposal is also the most “protective environmental shale regulations in the country.”
The Maryland department sent the proposal on hydraulic fracturing and horizontal drilling for natural gas production to a joint legislative review committee Sept. 26, launching a mandated state process that precedes publication of proposed regulations in the Maryland Register, which would be followed by a 30-day comment period.
State Sen. Roger Manno (D), co-chair of the General Assembly's Joint Committee on Administrative, Executive and Legislative Review, told Bloomberg BNA Sept. 27 in a phone interview that the MDE's 40-page fracking proposal is in “the pre-review process being analyzed by our lawyers” and that “additional pressure” has been created by the fact that the agency missed a statutory deadline to have the regulations in place by Oct. 1.
Manno said the missed deadline means lawmakers must review the fracking proposal “during our busy season when we have other regulations to review and are preparing for the 2017 legislative session, instead of having time to look at it over the summer,” as envisioned under S.B. 409/H.B. 449 of 2015, which instructed MDE to finalize regulations by Oct. 1 and begin implementing them one year later.
Further Legislation Anticipated
What the missed deadline means legally for implementing a fracking program “is not a question for me to answer,” said Manno, but he noted that the 2017 General Assembly session, which starts Jan. 11, “is likely to be a very busy session regarding what we do about fracking in the state of Maryland.”
He anticipated at least one bill “expected to get serious consideration” that would ban fracking in the state and probably another that would adopt “strict liability standards for operators if we do go ahead with fracking,” similar to a measure (S.B. 458) that passed the Maryland Senate in 2016 but stalled in the House.
“I don't think the issue of fracking is even remotely resolved” in the General Assembly, regardless of the status of MDE's current regulatory proposal, Manno said.
No fracking has been conducted to date in Maryland, where only two rural counties in the western portion of the state sit atop the gas-rich Marcellus Shale formation and are likely candidates for fracking.
Proposal Draws From Prior Plan
MDE's current proposal reflects four “issue papers” released in June that gave a preview of what the regulations would contain and how they would differ from strict rules previously proposed but never finalized during the administration of former Gov. Martin O'Malley.
MDE's approach retains much of what O'Malley (D) had called for but would beef up requirements for well construction by mandating “four concentric layers of steel casing and cement to isolate water- and gas-bearing zones,” according to a summary released by the agency.
In other areas, MDE's proposal would streamline certain application and review requirements but still would require operators to obtain prior approval of comprehensive development plans that outline oil and gas development activities anticipated for at least five years.
Chemical Disclosure, Setbacks Required
Drillers also would be required to disclose to MDE and to medical and public health professionals “full chemical information, including names and concentrations of chemicals used” in fracking, with the additional proviso that, if a trade secret is claimed, the operator “must create a second list that excludes only the concentrations and linkage to particular commercial products,” according to the agency's summary.
The regulations would establish setback requirements for a variety of situations, including a ban on well pads located within 2,000 feet of a private drinking water well or within 1,000 feet of a wellhead protection area for a public water supply well or anywhere within four specific watersheds deemed too sensitive.
Grumbles said in an e-mailed statement that “if fracking ever comes to western Maryland, these rigorous regulations will be in place beforehand to help ensure safe and responsible energy development.”
Seen Putting Too Many Barriers in Place
Drew Cobbs, executive director of the Maryland Petroleum Council, didn't dispute Grumbles' claim that the proposed regulations “would be the strictest in the country.”
“No other state requires mandatory comprehensive development plans and, in general, Maryland's setbacks are more restrictive than other states,” said Cobbs, who had not yet reviewed the full text of the newly released proposal but expected it to resemble the issue papers released in June.
“We in Maryland are competing against roughly 24 other states for this activity and, given the economic conditions, this kind of regulation will make it more difficult and costly and time-consuming to go through the process” of applying for and operating a fracking facility in the state, Cobbs said.
Representatives of Earthjustice and the Sierra Club also told Bloomberg BNA that they had not had time to fully review all the details since the proposal was just making its way into the hands of interested parties on Sept. 27.
Called Weaker Than O'Malley's Proposal
Josh Tulkin, director of the Maryland Sierra Club, told Bloomberg BNA in an e-mail that, if the proposed text reflects what was disseminated in June, “Hogan's proposed regulations are significantly weaker than those proposed by the previous administration. Gov. Hogan promised us a ‘gold standard’ but what we got was fool's gold.”
“With mounting evidence of the health impacts of fracking, it would be foolish to think that this can be done safely,” Tulkin said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=97976077&vname=dennotallissues&fn=97976077&jd=97976077
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States Consider Ways to Reuse Fracking Wastewater
Sep 28, 2016 | BNA Daily Environment Report
By Stephen Lee
State environmental agencies are grappling with ways to reuse the water generated as an oil, gas and fracking byproduct, sometimes under pressure from both lawmakers and the public, a group of agency chiefs said Sept. 26.
In Colorado, for example, the idea of using so-called produced water, rather than magnesium chloride, to control dust on roads has taken hold in the state House among lawmakers hoping to save money and find a beneficial purpose for the otherwise useless water, said Martha Rudolph, director of environmental programs at the Colorado Department of Public Health and Environment.
Magnesium chloride costs roughly 10 times as much as produced water when used as a dust suppressant.
“We have legislators who think that would be a really great idea because it's so cheap, and it's much cheaper than mag chloride, and [they think] it's just the same as mag chloride, so you should be able to use it,” said Rudolph, speaking at an Environmental Council of the States meeting in West Virginia.
“We try to explain that it really isn't the same as mag chloride. We need to understand what's in it, what the impacts might be on the environment and the health of the folks that drive across the roads that have this produced water used as a dust suppressant.”
That explanation has led to “some testy discussions,” Rudolph said, as well as a pilot project to allow the use of produced water on a limited basis.
“But we still get pressure from legislators,” as well as from commercial interests in the state that are paid to take produced water and now want to sell it to counties for reuse, Rudolph said.
Similar Pressure in North Dakota
Outside pressure also has played a role in North Dakota—but from the media—not the legislature, and with the end result of shutting down the use of produced water, not encouraging it, said panelist David Glatt, chief of the North Dakota Department of Health's environmental health section.
The state, for years, allowed the use of produced water for dust suppression, “until we had a newspaper article that said, ‘You're using this waste that is toxic'—it didn't have any science to back it up—'and you're putting it on the roads and nobody's controlling it,’ ” Glatt said. “That shut everything down.”
The department then had to conduct testing, which revealed no accumulations of trace metals or ammonia or long-term problems from chloride, Glatt said. But when the Bakken formation oil boom struck in the mid-2000s, so many trucks were traveling along North Dakota roads, causing such severe dust problems, that political pressure mounted to find a solution, said Glatt.
The state eventually developed a “semi-permit program,” and produced water is now legal in North Dakota for dust control, he said.
Glatt also observed the irony of his state's regulations, which he said would allow a person to evaporate produced water, turn it into rock salt and apply it to roads without any regulation, but presumably with the same level of risk.
California Ponders Frack Water
Meanwhile, California, mired in the fifth year of a drought, is wrestling with the temptation of allowing frack water to irrigate crops. The state already allows oil-produced water to irrigate some fields in Southern California. But so far, frack water remains off the table, said panel member Matthew Rodriquez, head of the state's Environmental Protection Agency.
A state EPA subagency, the Central Valley Regional Water Quality Control Board—with input from special interest groups, such as almond growers—is now reviewing literature to determine what is and isn't known about frack water. The board expects to issue a report within a year, Rodriquez said.
“We're coming up with a long-term plan, doing more studies and tests on the various chemicals, so we can give industry some direction, and so we can tell the public that we've got a handle on the use of these chemicals,” Rodriquez said.
Green Advocate, Energy Rep Weigh In
To panelist Holly Pearen, senior attorney at the Environmental Defense Fund, efficiency measures that reduce demand are a better, or at least equal, solution to using produced water.
“If there's a cost-effective solution to the water shortage problem that does not involve a risk to public health and the environment, maybe beneficial use shouldn't be permitted with additional risks,” Pearen said.
She also acknowledged the negative perception the public could have if it knew produced water was being used on crops.
But the water can be used for other purposes, too, said panelist Roy Hartstein, Southwestern Energy Co.'s vice president of strategic solutions. Southwestern uses 100 percent of its flowback water—the mixture of fracking fluid and water that discharges back out of a wellhead after being injected—in its cooling towers, Hartstein said.
Moreover, if the produced water isn't cleaned and used, it must be stored, which presents its own risks, said Bryan Shaw, chairman of the Texas Commission on Environmental Quality, who spoke, but not as a panelist.
“It seems like we're missing opportunities, in many cases, to not only get beneficial use from it, but also to do more than let our kids, grandkids and great-grandkids deal with this somewhere down the road,” said Shaw.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=97976060&vname=dennotallissues&fn=97976060&jd=97976060
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The Presidential Politics of Energy Policy
Sep 27, 2016 | Real Clear Energy
By Tim Doyle
Climate change is the new energy policy. President Obama has shifted the nation in recent years away from the abundance of oil and natural gas to cleaner, though more expensive, renewable energy sources.
The president has made a 180-degree turn since winning re-election in 2012. Once supportive of an “all-of-the-above” energy policy, he has replaced it in the closing days of his administration with “keep it in the ground.”
The change represents a dramatic shift in our nation’s energy, environmental and economic policies. It’s a goal that if realized would effectively prohibit using 89 percent of the nation’s current energy supply. To impose that shift, the Obama administration has issued a number of costly regulations requiring utilities and industry to cut carbon and other greenhouse gas emissions.
The new regulations, according to the administration, are necessary to protect health and stave off the worst effects of climate change.
It’s a fundamental change and perhaps a worthwhile one. But the accumulation of regulation will have real consequences for millions of Americans, who can expect higher utility bills and fewer economic opportunities.
Hillary Clinton, in the first debate between the two major party candidates, repeated her support for transforming the nation’s energy sector, calling for generating enough electricity from renewable sources by 2026 to power every home in America, including the installation of 500 million solar panels on roofs across the country.
The goal is not without challenges, both in terms of available technology and economic impact.
Residential demand is 36 percent of total U.S. electricity consumption. Commercial and industrial users make up the balance. Of total U.S. generation, solar contributes only 1 percent, and all renewable energy combined – excluding hydropower, which continues to be widely opposed by the environmental community – equals only about 7 percent. Shifting just one-third of that generation to renewables will require a major government investment.
Ms. Clinton has proposed overcoming these hurdles with a “clean energy challenge” that would work with states and local communities to encourage innovation, update infrastructure, and incentivize deployment of renewable energy projects.
Ms. Clinton insists the benefits of the foretold clean energy economy will outweigh the downside of higher energy costs and loss of U.S. competitiveness. As the current president’s chief science advisor has said, transitioning to all renewables is not a technical issue but a “challenge of economic and social practicality.”
An economic challenge, indeed. The energy boom of the past five years, made possible by hydraulic fracturing – a practice Ms. Clinton has said wouldn’t occur “many places” once her conditions are met – is credited as one of the few drivers of the struggling U.S. economy.
Republican candidate Donald Trump offers a more traditional vision for America’s energy policy. The New York businessman sees the nation’s energy resources as neither good or bad, but as opportunities to revitalize the American economy.
Mr. Trump says it’s important to maintain the nation’s energy production to enable a resurgent manufacturing sector and enhance national security in an unstable world.
Mr. Trump has said he would rescind the current administration’s unilateral agreements on global climate mitigation and suspend new federal regulations, except those approved by Congress or for safety reasons. His plan also calls for investing oil and gas revenues in fixing the nation’s schools and public infrastructure.
Mr. Trump has promised to “revoke policies that impose unwarranted restrictions on new drilling technologies,” and has said that regulation of hydraulic fracturing should be done at the state and local level.
Mr. Trump, who has voiced support for regulations to protect air and water quality, has also made controversial statements about climate change, including calling it a “hoax” invented to help the Chinese.
Mr. Trump has since said that he was joking, but his concerns about the Paris Agreement potentially giving China a competitive advantage over the United States are all too real.
Americans face two very different choices November 8.
With Ms. Clinton, voters have someone who supports the energy and environmental policies of the current administration. Mr. Trump, on the other hand, is determined to use America’s energy resources to revitalize the economy, spur job creation, and maintain a strategic advantage in the world.
Tim Doyle is vice president of policy and general counsel at the nonprofit and nonpartisan American Council for Capital Formation
http://www.realclearenergy.org/articles/2016/09/27/the_presidential_politics_of_energy_policy_109263.html
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Pipeline Fight Threatens Obama’s Tribal Legacy
Sep 28, 2016 | The Hill - E2 Wire
By Devin Henry
Tribes and their allies say President Obama can cement his legacy on American Indian issues by rejecting a controversial pipeline project near tribal land in North Dakota.
Obama has looked to bring tribes into the fold as president, hosting an annual gathering of American Indian leaders that culminated with a summit this week. He also became only the fourth president to visit a tribe when he went to the Standing Rock Sioux’s reservation two years ago.
While Indian leaders have lauded Obama’s work on indigenous issues, they say his decision on the pipeline will be key in their assessment of his presidency.
“This is something that has been around for 200 years — the way Native Americans across the United States have been treated, it wasn’t good,” said Dave Archambault, the chairman of the Standing Rock Sioux.
“To reverse that in eight years is impossible. To reverse all the wrongs in four years is impossible. To do anything in one year is impossible. So to define an individual in a moment of time on one particular issue, it’s pretty hard to do.”
Obama has received laudatory reviews from American Indians before; they say he’s been as strong an ally as they’ve had in the Oval Office.
During a speech at his final Tribal Nations Conference on Monday, Obama listed off his accomplishments for tribes, from establishing a White House council on native issues to signing new protections for tribal women in an update to the Violence Against Women Act in 2013.
“I’ve been proud of what we’ve been able to do together,” he said. “We haven’t solved every issue. We haven’t righted every wrong. But together, we’ve made significant progress in almost every area.”
Lawmakers added other accomplishments, from an expansion of tribal healthcare coverage in ObamaCare to increased funding for Native American issues.
“The president understands Native Americans, understands the concept of sovereignty and tribal government, in a way that quite frankly none of his predecessors on either of the aisle has,” said Rep. Tom Cole (R-Okla.), co-chairman of the Congressional Native American Caucus.
“He set a very high bar for whoever the next president is.”
Beyond his policies, Obama has simply paid attention to Indians’ problems, tribal representatives say. He spoke every year at the White House’s tribal nations summit, an event created when he entered office, and during his Monday speech, he said he visited more Native American communities than any other president.
“He is living up to a lot of the things that he said when he ran for president, and it’s all good,” Archambault said.
Dakota Access — and the administration’s broader review of energy permitting decisions near Native American land — is one of the last issues on Obama’s Indian agenda.
Expectations for his Dakota Access review vary. Standing Rock, other Great Plains tribes and groups like the National Congress of American Indians are strongly pushing Obama to reject the pipeline.
But they acknowledge that’s a big ask for the president.
“Life is based on relationships,” NCAI President Brian Cladoosby said. “We’re not always going to see things eye to eye in our relationship, but that doesn’t mean we’re going to stop, it doesn’t mean we quit talking.”
The pipeline fight came to the Tribal Nations Conference this week, where Standing Rock officials briefed other tribes on the issue and hosted a rally against the $3.8 billion project shortly after Obama spoke.
They are also asking Obama to expand tribal consultation — and potentially veto power — in the type of federal permitting decisions that yielded the Dakota Access pipeline.
“Cities, counties, states — sometimes they have veto power,” said Rep. Betty McCollum (D-Minn.), the other co-chairwoman of the Native American Caucus. “We need to know if tribes are ever going to be given that same footing as tribal nations and treated as the units of government that they are.”
Cladoosby said the administration should look for “low-hanging fruit” that Obama can accomplish before he leaves office. That includes boosting the historic preservation reviews at the heart of a Standing Rock Sioux lawsuit over the Dakota Access project.
“[Dakota Access] brought it to the forefront, but we need to make sure that we look at the changes this president can make before he goes out of office that don’t necessarily need congressional action,” he said.
“Every single tribe in the nation has been impacted by decisions that our trustee has made or corporations have made.”
Obama didn’t mention Dakota Access or the permitting review directly on Monday. But he referenced it in passing, saying, “I know that many of you have come together across tribes and across the country to support the community at Standing Rock. And together, you’re making your voices heard.”
For Archambault and others, that alone was a welcome comment.
“I didn’t expect anything because I know that we’re in court,” Archambault said. “It was a message that we are being heard by his administration, and that was more than what I expected.”
http://thehill.com/policy/energy-environment/298181-pipeline-fight-threatens-obamas-tribal-legacy
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Elk River Chemical Spill Class Action Proceeds
Sep 28, 2016 | BNA Daily Environment Report
By Steven M. Sellers
Eastman Chemical Co. must face a jury over its class action liability for a 2014 toxic chemical spill that fouled the Elk River and tainted the drinking water of Charleston, W. Va. (Good v. Am. Water Works Co., Inc., S.D. W.Va., No. 14-cv-01374, 9/26/16).
Evidence exists that Freedom Industries Inc. purchased and stored an Eastman chemical product, methylcyclohexanethanol (MCHM), but wasn't aware of the chemical's corrosive properties.
That was enough to defeat a summary judgment for Eastman, the U.S. District Court for the Southern District of West Virginia said Sept. 26.
The ruling also rejected Eastman's assertions that named plaintiff Crystal Good's state tort claims were preempted by federal law.
The court also disagreed that Eastman was shielded from liability because Freedom, as a “sophisticated user” of the chemical, and not Eastman itself, had the duty to warn others of the chemical's dangers.
MCHM Used to Make Coal Cleaner
Freedom used MCHM to manufacture “Shurflot 944,” a coal-cleaning solution, at a site upstream from Charleston's municipal water intake, according to the decision. One of the company's storage tanks containing the finished product allegedly leaked the chemical into the Elk River.
The plaintiffs are Charleston residents who claim business losses, exposure to toxic fumes and interruption of drinking water supplies.
They said that both Eastman and the water company defendants could have prevented the spill by taking better precautionary measures and complying with applicable regulations.
But Eastman argued it shouldn't be held responsible for state law negligence claims because the spill wasn't of its product, but of Freedom's coal-cleaning solution. It also said that the material safety data sheet it provided for MCHM meets federal regulatory standards, preempting the state law claims.
Questions Should Go to Jury
Evidence on that and related questions, however, is in dispute and should go to a jury, the court said.
Eastman's data sheet doesn't clearly disclose the corrosive qualities of MCHM, and other constituent chemicals in the product aren't clearly defined, the court said.
Freedom, which filed for bankruptcy protection shortly after the spill, is no longer a defendant in the litigation.
The law offices of Thompson Barney and the Caldwell Practice represented the plaintiffs.
Nelson Mullins Riley & Scarborough as well as Blank Rome represented Eastman Chemical Co.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=97976075&vname=dennotallissues&fn=97976075&jd=97976075
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The Flint Water Crisis Is Not Over and Congress Must Not Leave Them Behind
Sep 28, 2016 | Environmental Defense Fund
By Jack Pratt
More than two years since a public health disaster hit Flint Michigan, Congress has yet to provide needed assistance. Some on both sides of the aisle are working to advance help for Flint, but the path forward remains unclear, with little time to spare on Congress’ legislative calendar. Congress must not leave town without taking action to help Flint.
EDF recently joined partners in the environmental community to help support a delegation of community leaders from Flint who came to Washington to lobby for overdue federal aid. Our friends at National Wildlife Federation, along with Sierra Club and many others, helped coordinate an effort to bring these Flint voices to Washington. The stories from Flint have been well-documented in the press, but to hear them in person is another thing altogether. I am hopeful it had as much of an impact on Capitol Hill as it did those of us who joined their meetings.
It was clear to anyone who talked with them that the problem isn’t over, not by a long-shot. At a most basic level, life simply can’t return to normal any more than it does when the weather calms after a tornado.
We should not expect a water system to take the type of shock it took in Flint and expect it to start working again with the flip of a switch. Erratic use makes it that much harder to resume protective corrosion control and or tackle related systematic problems like the Legionnaires' disease seen in Flint.
So, Flint residents are reminded of the problem all day, every day. How do you eat fresh food if you can’t wash it, or have to use bottled water to do so? When you go to the supermarket, can you trust the sprayers that keep the vegetables moist? One woman told of putting on weight because she eats pizza all the time now, instead of fresh food. Because lead has accumulated in many water heaters, you can only shower with cold water. You can’t take a bath, you can only shower.
Then there are the practicalities: where do you put the bottles of water? If you’re elderly and take the bus, how can you carry the heavy bottled water? All the Flint residents had photos on their phones of the stacks of bottled water in their homes. And they all had opinions on what kind of water they liked for what purpose. They know bottled water that well.
Those are daily challenges, but they’re small compared to what the Flint community must face in terms of the human cost of the water crisis. Lead is especially dangerous to the developing brain in children and the effects are serious and permanent. Flint families, schools and the children themselves will face challenges for years to come thanks to tainted tap water they were told was safe.
The Michigan Congressional delegation has been working on a federal aid package to give the community a hand out of the trench. The aid package was passed with broad bi-partisan support in the Senate as part of a water infrastructure measure, thanks to the work of the Michigan delegation and the leadership of Senators Jim Inhofe and Barbara Boxer. Yet, the path through the House remains unclear.
Meanwhile, an aid package for flood victims in Louisiana, which should also be a priority, could also be in peril. Congress should act swiftly to help the affected communities. But help for Flint should move too. It will take years of work for the people of Flint to get a water system back to normal, to replace lead services lines, and to help the children affected by lead poisoning. It’s time Congress lends them a hand.
http://blogs.edf.org/health/?_ga=1.120828104.1919587650.1464619723
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Washington Commission Awards Funds For Oil-Train Crossing Upgrades
Sep 27, 2016 | Progressive Railroading
The Washington Utilities and Transportation Commission(UTC) approved more than $250,000 in grants to fund safety upgrades at a rail crossing on an oil train route in Spokane County, the commission announced last week.
The Grade Crossing Protective Fund grant was approved at the request of Millwood city officials, who want to use the dollars to complete long-term safety improvements at the Marguerite Street railroad crossing, according to a UTC press release.
The crossing has been identified by UTC rail safety staff as a priority under-protected crossing along an oil route. Existing railroad warning devices at the crossing consist of crossbucks and advance warning signs. The grade on the north approach to the crossing limits sight distance down the tracks, making it difficult for vehicles to stop, restart, and quickly clear the track, UTC officials said.
The project will cost $445,810. The grant will cover the installation of active warning devices with flashing LED lights and gates.
The city will spend $191,477 to complete a new concrete crossing surface, curb and gutter on both sides of the crossing, as well as an Americans with Disabilities Act compliant sidewalk. The city is responsible for all additional costs associated with the project.http://www.progressiverailroading.com/safety/news/Washington-commission-awards-funds-for-oil-train-crossing-upgrades--49605
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Sep 27, 2016 | American Chemistry Matters
Innovations in chemistry make an important contribution in developing the products and materials that help create attractive, durable, modern buildings. High performance spray foam insulation helps keep heat and cooled air inside a building, lowering energy costs. Vinyl flooring in hospitals and operating rooms is easy to clean and disinfect and can last for many years. Plastic coatings added to metal roofs provide protection for years, making roofs more durable and storm-resistant.
At the same time, there is a growing focus on whether and how building materials may affect the environment and the health of building occupants. Increased interest from the public in “healthy” buildings, along with desire on the part of building owners to make progress toward attaining green building certification system requirements, means architects and specifiers seek more detailed information about which building materials and products help to meet sustainability goals. Manufacturers also are challenged to meet this demand for green and sustainable materials and work with architects, specifiers and builders to provide them with the products they need.
To address these important issues, the American Chemistry Council has worked with the U.S. Green Building Council to develop content for two sessions focused on materials health and safety in the built environment at the upcoming Greenbuild Conference and Expo, in Los Angeles next week:A two-hour town hall-style session, Materials Health and Safety: A Holistic Approach to Innovation,on Wednesday, October 5, features three panelists with expertise in theories, techniques and assessment tools related to materials health. The speakers will review how to: assess the life-cycle impacts of materials used in construction; understand and meet demand for transparent information about ingredients in building products; and assess opportunities and challenges to applying green chemistry principles to the building and construction sector.At a Materials Think Tank on Thursday, October 6, panelists will review the materials and products used in buildings today and showcase innovative approaches to design, construction and operations, taking into account performance needs and functionality across a whole building. Segmented into two panel discussions, this session will consider the current state of the building materials industry; explore new product innovations and how a product comes to market; and discuss new and existing mechanisms to foster future innovations in order to tackle materials sustainability challenges.
Greenbuild attendees should come away with a greater understanding of these building trends and how LEED Version 4 is taking important steps to move beyond a single attribute approach to evaluation that takes into account the entire life cycle of materials used in buildings.
For more information on these discussions and other topics related to chemistry in the built environment, visit BuildingWithChemistry.org.
More information on Greenbuild 2016 educational sessions:
Materials Health and Safety: A Holistic Approach to Innovation
Wednesday, October 5, 3:30 pm – 5:30 pm
Speakers:Bill Shireman, Future 500 (moderator)Paula McEvoy, Perkins + WillDavid Green, BASFMeg Whittaker, ToxServices
Materials Think Tank at Greenbuild
Thursday, October 6, 3:30 pm – 5:30 pm
Panel 1 Speakers:Mahesh Ramanujam, USGBCWanda Lau, Architect magazineShawn Hunter, DowDoug Brown, BASFBrent Trenga, KingspanElizabeth Cassin, Wiss, Janney, Elstner Associates
Panel 2 Speakers:Scot Horst, USGBCBob Skoglund, CovestroStacy Glass, Cradle to CradleMikhail Davis, InterfacePhilip Ivey, Milliken
https://blog.americanchemistry.com/2016/09/the-role-of-chemistry-in-sustainable-buildings-greenbuild-sessions-highlight-materials-health-safety-and-innovation/
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EPA Staff Finds Retaining NO2 NAAQS Will Satisfy Air Law Safety Mandate
Sep 27, 2016 | InsideEPA
By Stuart Parker
EPA staff conducting a Clean Air Act-mandated review of the agency's nitrogen dioxide (NO2) national ambient air quality standard (NAAQS) is recommending against any changes to the NAAQS, saying that the existing NO2 limit satisfies an air law mandate that the standard protect human health with an adequate margin of safety.
In a draft policy assessment (PA) just uploaded to EPA's website, staff says that there is no scientific basis for proposing a stricter standard, and also NO2 levels are falling sharply nationwide, decreasing the potential for harmful exposures. The agency last updated the NAAQS in 2010, establishing the standard at 100 parts per billion (ppb) measured over one hour. That standard was the first update to the NO2 limit since a 1971 rulemaking that set the NAAQS at 53 ppb annually.
PA documents typically offer EPA administrators a range of options for revising a NAAQS as part of the Clean Air Act mandate to review the six different NAAQS every five years -- but the NO2 PA does not.
The assessment also says that there is great uncertainty about the impacts to human health from NO2 exposures below the 100 ppb level of the standard. EPA's Clean Air Scientific Advisory Committee had recommended that EPA assess impacts below that level.
According to a Sept. 22 Federal Register notice that announced the PA ahead of its public availability, the agency will take comment on the assessment through Dec. 8. EPA will use that feedback to decide whether to propose retaining the existing standard, or whether it needs to weaken or tighten the limit.
The PA only addresses the primary health-based standard and not the secondary NAAQS designed to protect the environment, which is undergoing a separate review and remains at 53 ppb annually.
In the PA, EPA staff says it “has reached the preliminary conclusion that the available scientific evidence, in combination with the available information from quantitative analyses, supports the adequacy of the public health protection provided by the current primary NO2. Staff further reaches the preliminary conclusion that it is appropriate to consider retaining the current standards, without revision, in this review.”
This conclusion is driven by scientific uncertainty over NO2's health effects at decreasing concentrations, as NO2 levels continue to fall, EPA staff notes. Reductions in NO2 emissions are resulting from regulatory programs, such as EPA's emissions rules for power plants and cars. Further cuts are due to fuel switching from coal to natural gas in the electric utility and heavy industrial sectors, many observers have said.
Scientific Uncertainties
EPA staff in the PA suggests uncertainty weighs against eyeing a stricter NAAQS: “[W]e recognize that the uncertainties and limitations associated with the many aspects of the estimated relationships between NO2 exposures and adverse respiratory effects are amplified with consideration of increasingly lower NO2 concentrations. In staff’s view, there is appreciable uncertainty in the extent to which reductions in asthma exacerbations or asthma development would result from alternative NO2 standards with levels lower than those of the current standards.”
EPA staff notes that the strongest evidence of harm to human health remains for respiratory problems, and that NO2 concentrations remain higher near roads than elsewhere. EPA recently proposed to scale-back near-road monitoring requirements for metropolitan areas with populations between 500,000 and one million people to install at least one near-road NO2 monitor by Jan. 1, citing falling NO2 levels and diminished health concerns.
Environmentalists have condemned the move as premature, saying the existing network is still too small to ensure compliance with the current NAAQS. They have also warned that the network would be inadequate for a possible future, tougher NAAQS -- although the PA suggests EPA may not pursue a stricter standard.
CASAC, which advises the agency on its reviews of the six NAAQS, will now review and weigh in on the PA. The committee in a Sept. 9, 2015, letter to EPA on the agency's risk and exposure assessment plan -- a document from earlier in the NO2 standard review -- urged the agency to evaluate the impacts on health of NO2 levels below 100 ppb, because the lowest “benchmark” level used in controlled human exposure studies is 100ppb.
“The available controlled human exposure data do not rule out that adverse effects could occur at NO2 concentrations below that of the current 1-hour standard,” according to the letter. “Therefore, other means for inferring concentrations that may be associated with adverse effects at 1-hour average NO2 concentrations below 100 pbb (such as based on epidemiologic data) should be explored and taken into account when considering benchmark concentrations and interpreting results from the exposure assessment,” CASAC said.
NO2 Exposures
American Lung Association consultant Deborah Shprentz in Aug. 13, 2015 remarks to CASAC said, “an exposure analysis of benchmarks from 100 to 400 ppb would not be very informative. Given . . . findings of adverse respiratory effects at or below the level of the current short-term standard, it is critical that any exposure assessment evaluate exposures at concentrations below 100 ppb,"
However, EPA staff in the PA notes significant scientific uncertainty surrounding studies on health effects of NO2 in areas with concentrations below 100 ppb.
Although CASAC also urged EPA to “explore the feasibility” of a risk and exposure assessment (REA), sometimes used as a preliminary step to a PA, “based on the long-term epidemiology,” EPA opted not to conduct an REA, citing a lack of new science.
http://insideepa.com/daily-news/epa-staff-finds-retaining-no2-naaqs-will-satisfy-air-law-safety-mandate
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Current Nitrogen Dioxide Air Standards Adequate, EPA Says
Sep 28, 2016 | BNA Daily Environment Report
By Patrick Ambrosio
The head of the Environmental Protection Agency should consider retaining the current national, health-based standards for nitrogen dioxide, according to a draft policy document prepared by agency staffers.
Exposure to high levels of nitrogen dioxide can aggravate asthma and other respiratory diseases and potentially increase susceptibility to respiratory infections, according to EPA's website. To protect the public from those negative health outcomes, the EPA set an annual standard of 53 parts per billion in 1971 and supplemented that standard with a one-hour standard of 100 parts per billion in 2010.
The EPA is now conducting a legally mandated review of those standards. If the agency were to set more stringent nitrogen dioxide standards, it would likely require at least some states to take action to further reduce emissions from major sources of the pollutant, which include motor vehicles and power plants.
However, EPA staff, in a draft policy document posted online Sept. 27, reached a preliminary conclusion that current scientific evidence supports the adequacy of the current health-based standards. The agency staffers concluded that there is “appreciable uncertainty” over whether more stringent federal standards would result in a reduction of asthma cases, a conclusion that will likely draw criticism from environmental and public health advocates.
No Potential Alternative Standards
“The available evidence and information do not support the identification of potential alternative standards that provide a different degree of public health protection,” the Office of Air Quality Planning and Standards staffers said.
The ultimate decision on the adequacy of the nitrogen dioxide standards falls to the EPA administrator and won't be made until sometime in the next administration.
Frank O'Donnell, president of Clean Air Watch, told Bloomberg BNA in an e-mail that it is “extremely disappointing” that EPA's staff concluded that the current standards are adequate considering that the agency previously noted that the scientific evidence of danger is greater than it was during the last review. O'Donnell sent his reaction after reading through the executive summary of the 414-page policy document.
“This is tremendously bad news—especially for children with asthma who live near major roads and in urban areas with high truck and traffic congestion,” O'Donnell said.
During the last review of the standards, which concluded in 2010, the American Lung Association and Clean Air Watch both urged the EPA to set more stringent standards to protect children with asthma and other vulnerable populations.
The Clean Air Scientific Advisory Committee, a panel of independent science advisers, will meet Nov. 9-10 to discuss the draft policy assessment. In addition, the EPA is accepting public comment on the draft document through Dec. 8. Comments can be filed at https://www.regulations.gov/docket?D=EPA-HQ-OAR-2013-0146.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=97976079&vname=dennotallissues&fn=97976079&jd=97976079
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States Tailor Their Message to Spread Environmental Justice
Sep 28, 2016 | BNA Daily Environment Report
By Stephen Lee
State agencies are finding themselves having to convince not just residents but also local businesses about the environmental justice work they undertake, a panel of agency heads said at an Environmental Council of the States meeting Sept. 26 in Wheeling, W.Va.
“Businesses don't want to be seen [as being] in an area that is disadvantaged for fear that they would be blamed for creating the disadvantage,” said panelist Matthew Rodriquez, head of the California Environmental Protection Agency. “And there is concern that if you identified an area that was disadvantaged, basically it was going to lead to redlining, and nobody is going to go into those areas.”
In response, Rodriquez has taken on the job of explaining to businesses that California EPA is simply trying to target its programs to areas that need them.
“If [businesses] are concerned that we're going to identify an area that is struggling with environmental issues and circle black helicopters around it and enforce all the laws vigorously in this area, that will chase businesses out,” Rodriquez said.
Emphasis on Community Outreach
Taking a step further, Chuck Carr Brown, secretary of Louisiana's Department of Environmental Quality, said on the panel that he considers companies to be in full compliance only if they're doing meaningful environmental justice outreach with the community.
Brown said he expects companies to think about ways they can enhance the quality of life for nearby residents, mulling such possibilities as health screening, air monitoring and job training.
Moreover, even if a company is in full compliance with the law, the Department of Environmental Quality can still persuade them to be more responsive to local environmental justice needs, Brown said.
“Even though I don't have a stick to wave, they understand and they listen,” he said.
Overcoming Small Barriers
The agency chiefs also said states are growing more mindful of the real-world barriers that prevent some communities from attaining environmental justice.
Most of the steps taken so far have come in the form of small tweaks rather than sweeping programmatic changes, but they have made a measurable difference, said the panelists.
In Colorado, for example, the Department of Public Health and Environment has had success convincing local residents about the environmental health hazards they face by enlisting on-staff medical doctors, rather than regulatory staffers, to explain the issues, said panel moderator Martha Rudolph, the agency's director of environmental programs.
“When someone talks to them about the health impacts of something, they trust a doctor more than they do a lawyer,” Rudolph said.
Similarly, the Massachusetts Department of Environmental Protection is holding program review meetings in the affected communities themselves, “rather than always in Boston,” and translation services are available if that community's predominant language isn't English, said panel member Martin Suuberg, DEP commissioner.
It also strengthened its ties with local governments. For example, in Worcester, Mass., the department has received tips about local environmental problems from building inspectors, fire departments and conservation commissions, Suuberg said.
Seeding Partners in California
In cases where there is no community organization to engage with, state agencies essentially have had to build their own. California accomplishes that with seed money grants maxing out at $50,000, Rodriquez said.
California also invests funding from its cap-and-trade program in disadvantaged communities, according to Rodriquez. Once that effort began, “there were a whole lot of communities that claimed they were far more disadvantaged than we had identified,” he said.
Later this week, California EPA will issue a report detailing the results of joint workshops with the community it recently conducted in Fresno and Los Angeles.
“I, sitting in Sacramento, really can't understand exactly all the problems and identify where there are issues,” Rodriquez said. “I really need to go down and talk to the locals.”
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=97976065&vname=dennotallissues&fn=97976065&jd=97976065
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