Preview Newsletter
ACC AM 10/04/16
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Getting Engaged … In Shaping Implementation Of The New TSCA
Oct 3, 2016 | Environmental Defense Fund
By Richard Denison
When President Obama signed the Lautenberg Act into law in June, it marked the beginning of a new phase in the long battle to improve chemical safety. -
(ACC Blog) ACC Releases Updated Review Of U.S. Drinking Water Chlorination Practices And Issues
Oct 3, 2016 | American Chemistry Matters
Imagine living in a world without chlorine disinfection of drinking water…You would have no idea when a dreaded disease might strike you down or strike down your children or other family members. This is the world that everyone in the U.S. lived in at the turn of the twentieth century. -
(ACC Mentioned) Texas Issues Novel Chromium Risk Finding Using Data Under EPA Review
Oct 3, 2016 | Inside EPA
By Maria Hegstad
Texas has finalized a novel cancer risk estimate for ingested hexavalent chromium (Cr6) that is based on chemical industry-funded data EPA is reviewing while it crafts the latest draft of its delayed risk assessment of the substance, which could potentially increase pressure on the agency to use the information for its review that is now in its sixth year. -
Proposed Curb on Vapor Degreaser Under White House Review
Oct 4, 2016 | BNA Daily Environment Report
By Pat Rizzuto
The White House's Office of Management and Budget is reviewing aproposed rule that would restrict trichloroethylene's use as a commercial vapor degreasing solvent. -
New Power Plant Lawsuit to Revive Clean Power Plan Arguments
Oct 4, 2016 | BNA Daily Environment Report
By Andrew Childers
Arguments against the Obama administration's carbon dioxide standards for the existing fleet of power plants could resurface as opponents target related emissions standards for new facilities. -
After Arguments, Analysts Agree EPA Has Advantage In ESPS Litigation
Oct 3, 2016 | Inside EPA
By Lee Logan and Dawn Reeves
Law professors and other observers are solidifying their views that EPA has the advantage in litigation challenging its landmark power plant greenhouse gas rule, arguing the majority of appellate judges appointed by Democratic presidents gave few indications during oral arguments that they will side with their GOP-appointed colleagues to vacate the rule. -
EPA Clarifies Scope Of Oil & Gas NSPS Reconsideration
Oct 3, 2016 | Inside EPA
EPA is seeking to clarify that the scope of its notice denying reconsideration on certain provisions in its 2012 package of air rules for the oil and natural gas sector only applies to its new source performance standards (NSPS), which have since been revised, and not the agency's related air toxics rules that it is still reviewing. -
Lawmakers To Probe Energy Development Barriers, Fracking Rule
Oct 3, 2016 | E&E News PM
By Cecelia Smith-Schoenwalder
The House Natural Resources Committee will hold a field hearing in New Mexico tomorrow to discuss energy development on tribal land. -
Trade Group Continues Fighting New PA Shale Regulations As Implementation Nears
Oct 3, 2016 | Natural Gas Intelligence
By Jamison Cocklin
The Pennsylvania Independent Oil and Gas Association (PIOGA) is again trying to stop new shale drilling regulations from going into effect until permitting requirements are dropped from the final package, claiming that a state Supreme Court ruling last week validates its argument against the provisions. -
Olson: U.S. Energy Needs Fair, Sensible Rules And Less Red Tape
Oct 3, 2016 | Houston Chronicle
By Pete Olson
As all Texans and many Americans know, thanks to innovative technologies, we are the No. 1 producer of oil and gas in the world. It wasn't too long ago that the world view saw negative, powerless words like "peak oil" or an "energy crisis." However, simply having vast resources does not immediately translate into benefits at home and abroad. To achieve that, policy changes must be made. -
Companies Have Begun Using Our Waste to Power the World
Oct 3, 2016 | Futurism (In Real Clear Energy)
By Jelor Gallego
Reusing waste is no new idea. The whole green revolution is about recycling most if not all waste produced by cities. In fact, waste-to-energy plants are already being constructed in certain parts of the world like Denmark and Sweden. -
Obama Defends Need For Natural Gas, Nuclear In 'Real World'
Oct 3, 2016 | PoliticoPro - Whiteboard
By Anthony Adragna
President Barack Obama said he understands environmentalists' concerns about potential risks of fracking, but defended the need for natural gas and nuclear power as part of the nation's energy mix. -
Elk River Chemical Spill Class Action Proceeds(1)
Oct 3, 2016 | BNA Toxics Law Reporter
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 ). -
Proposed Pacific Oil Terminal Has Treaty Impacts: Tribe
Oct 4, 2016 | BNA Daily Environment Report
By Paul Shukovsky
Plans for a proposed crude-by-rail terminal on Washington's Pacific Coast is pitting the Quinault Indian Nation and several environmental-group allies against the Westway Terminal Co. LLC, with an outcome that may be determined in a courtroom. -
EPA Publishes Proposed Threshold For GHG Permits
Oct 3, 2016 | Inside EPA
EPA has formally published its proposed rule setting a de minimis greenhouse gas emissions level to serve as a trigger for when an air permit needs to include GHG limits, a plan that sticks with the same 75,000-ton-per-year (tpy) threshold the agency has long used as the trigger for when emissions are significant and subject to permitting.
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Getting Engaged … In Shaping Implementation Of The New TSCA
Oct 3, 2016 | Environmental Defense Fund
By Richard Denison
Richard Denison, Ph.D., is a Lead Senior Scientist.
When President Obama signed the Lautenberg Act into law in June, it marked the beginning of a new phase in the long battle to improve chemical safety. Much of the success or failure of the new law now hinges on how well it is implemented. There are both a critical need and numerous opportunities for those who have a stake in improving our chemical safety system to engage in shaping how the law will be implemented.
To that end, EDF has developed an Engagement Guide that provides an overview of some of the key provisions in the Lautenberg Act and associated opportunities for stakeholder engagement, including:Safety Standard and Vulnerable SubpopulationsScience Advisory Committee on ChemicalsPrioritizing Chemicals in UseRisk Evaluations of Existing Chemicals Deemed High-PriorityFirst Chemicals to be ReviewedRestrictions on Chemicals that Present an Unreasonable RiskNew Chemicals Entering the MarketTransparency and Information AccessLegal RecoursesPreemption of State Authority
I hope you find it useful!
http://blogs.edf.org/health/2016/10/03/getting-engaged-in-shaping-implementation-of-the-new-tsca/
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(ACC Blog) ACC Releases Updated Review Of U.S. Drinking Water Chlorination Practices And Issues
Oct 3, 2016 | American Chemistry Matters
Imagine living in a world without chlorine disinfection of drinking water…You would have no idea when a dreaded disease might strike you down or strike down your children or other family members. This is the world that everyone in the U.S. lived in at the turn of the twentieth century.
–Michael J. McGuire in the foreword of ACC’s just-released Drinking Water Chlorination: A Review of U.S. Disinfection Practices and Issues. McGuire is also the author of The Chlorine Revolution: Water Disinfection and the Fight to Save Lives.
This revolution in public health McGuire mentions began in Jersey City in 1908 and soon cascaded to other U.S. cities. Before drinking water chlorination became commonplace, waterborne diseases like cholera, typhoid fever and dysentery killed thousands annually. As more and more communities began chlorinating their drinking water, corresponding death rates plunged dramatically. In fact, the treatment and distribution of drinking water has been called one of the greatest achievements of the twentieth century. Providing clean, safe drinking water requires source water protection, appropriately filtering and treating raw water and ensuring safe distribution of treated water to consumers’ taps. During the conventional treatment process, chlorine is added to drinking water as elemental chlorine (chlorine gas), sodium hypochlorite solution (bleach) or dry calcium hypochlorite. When applied to water, each forms free chlorine, which destroys or inactivates most disease-causing organisms such as bacteria and viruses. Chlorine-based alternative disinfectants include chloramine and chlorine dioxide.
Almost all U.S. drinking water treatment plants use some type of chlorine-based process—either alone or in combination with other disinfectants. Only chlorine-based disinfectants provide residual disinfection that helps prevent microbial growth or regrowth in the distribution system and in storage.
Intended for water quality professionals, students, researchers, and public health officials, the report is substantially updated and expanded from our previous (2003) edition and reviews:Chlorination and public healthThe risks of waterborne diseaseThe challenge of disinfection byproducts (DBPs)Drinking water securityAlternative disinfection methodsThe future of chlorine disinfection, including its role in achieving the UN’s Sustainable Development Goal 6 (“Ensure availability and sustainable management of water and sanitation for all”)
The review also includes a wide variety of informative and accessible figures, sidebars and tables. It can help provide water quality professionals the information they need to help evaluate and choose among available disinfection methods to match each system’s specific needs, resources and source water quality.
Unfortunately, we do not have to go back a century to see what contaminated water does to a community—an ongoing cholera epidemic in Haiti has already sickened more than 750,000 and killed almost 10,000 people. Chlorine can provide cost effective, scalable disinfection for remote rural villages and large cities alike, helping to bring safe water to those in need. Despite a century of continuous use and evolving challenges, drinking water chlorination will remain a cornerstone of waterborne disease prevention and public health protection in the U.S. and abroad.
https://blog.americanchemistry.com/2016/10/acc-releases-updated-review-of-u-s-drinking-water-chlorination-practices-and-issues/
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(ACC Mentioned) Texas Issues Novel Chromium Risk Finding Using Data Under EPA Review
Oct 3, 2016 | Inside EPA
By Maria Hegstad
Texas has finalized a novel cancer risk estimate for ingested hexavalent chromium (Cr6) that is based on chemical industry-funded data EPA is reviewing while it crafts the latest draft of its delayed risk assessment of the substance, which could potentially increase pressure on the agency to use the information for its review that is now in its sixth year.
The Texas Commission on Environmental Quality's (TCEQ) assessment of Cr6's oral cancer risks, published late last month, includes a risk estimate of 0.0031 milligrams per kilogram bodyweight per day (mg/kg-day). The estimate relies on industry consultants' publications to use non-linear cancer risk modeling -- often a less-strict approach than EPA's default linear modeling.
The risk estimate represents a rare use of a reference dose (RfD), the maximum amount of a substance not anticipated to cause adverse effects if consumed daily over a lifetime. Such values are traditionally used for non-cancerous health effects, but in the case of the Cr6 assessment, TCEQ has calculated an RfD to protect the public from both cancer and non-cancer risks. TCEQ did so using information generated from a multi-year, industry-financed research project into how, biologically, Cr6 could cause cancer when ingested and how to model that dose-response.
The research resulted in a hypothesized mode of action (MOA) that was not mutagenic, and TCEQ adopts the result in its assessment. EPA, however, reached the opposite conclusion its 2010 draft risk assessment that it is still revising, that Cr6 is mutagenic.
EPA's cancer risk assessment guidelines require the use of strict linear modeling -- which assumes that there is no safe level of exposure to the contaminant -- if it is mutagenic or if its MOA is unknown.
However, if a non-mutagenic MOA can be shown, non-linear modeling, generally conducted only for non-carcinogenic chemicals, can be used instead. Non-linear or threshold modeling is generally considered less stringent than linear because it assumes that there a threshold dose below which causes no harm.
In public comments that TCEQ also released alongside the final assessment, the chemical industry association American Chemistry Council (ACC) and toxicology consulting firm ToxStrategies generally praised TCEQ's approach and urged the Lone Star State to finalize the draft risk estimate.
TCEQ "has proposed an [RfD] that is protective against both non-cancerous and cancerous effects of [Cr6] in drinking water," wrote ToxStrategies' Chad Thompson in Sept. 19 comments. "The derivation of the proposed RfD of 0.0031 mg Cr(VI)/kg-day relies on 1) evidence for a non-mutagenic threshold-based [MOA] for intestinal tumors observed in mice, 2) target tissue pharmacokinetic data, and 3) the application of conservative uncertainty factors. . . . It is our opinion that the available science fully support the TCEQ's proposed RfD of 0.0031 mg Cr(VI)/kg-day."
Thompson, a managing scientist at ToxStrategies, co-authored some of the studies that the consulting firm published on Cr6. Two of them are cited in TCEQ's final assessment.
ACC's Ann Mason, a senior director, wrote in Sept. 20 comments, "ACC encourages TCEQ to adopt its proposed oral reference dose for hexavalent chromium."
ACC funded much of the ToxStrategies' multi-year research program into the biological mechanism of how ingested Cr6 could cause cancer, as suggested in the NTP's 2008 toxicology study.
Risk Number
When TCEQ released the draft version of its assessment for comment last June, it suggested in a press release that the draft risk number -- the same figure adopted in the final assessment -- indicates EPA's 1991 drinking water standard for total chromium, of 100 parts per billion (ppb) is adequately protective of public health.
Environmentalists questioned the safety of that maximum contaminant level (MCL) after the National Toxicology Program published studies in 2008 suggesting that Cr6 was carcinogenic when ingested, as well as the results of tap water spot testing in locations across the country published by the Environmental Working Group in 2010.
Since that time, California finalized in 2014 a drinking water standard based on an assessment similar to EPA's 2010 draft review, and the states is implementing its new state-wide drinking water standard of 10 ppb, slated to be fully in effect by 2020.
EPA's 2010 draft used linear modeling to assess Cr6's oral cancer risk, finding that Cr6 was mutagenic and proposed a strict oral cancer slope factor, or estimate of cancer potency, of 0.5 per milligram per kilogram bodyweight per day (mg/kg-day). The number prompted concerns that EPA would significantly strengthen its total chromium MCL.
EPA continues to work on its new draft Integrated Risk Information System (IRIS) assessment of Cr6's human health risks, expanded to address inhalation risks as well as ingestion risks.
The work comes after several members of a peer review panel that considered the agency's 2010 public draft in 2011 called on EPA to wait until industry contractors completed their then-pending Cr6 publications before finalizing the assessment.
EPA management heeded their call, though environmentalists protested the industry connections of two of the peer reviewers, leading to an agency re-write of policies for contractor-managed peer review panels.
An industry source says that the next public draft Cr6 IRIS assessment is scheduled for release for public comment in 2017.
EPA's Assessment
With EPA's work on its Cr6 assessment ongoing, industry representatives requested a pair of meetings with IRIS staff over the summer, to discuss additional work on modeling components of their research as well as an update consultants published earlier this year regarding a cohort of workers exposed to Cr6 by inhaling it.
IRIS managers and staff met with ToxStrategies consultants and representatives of the Electric Power Research Institute July 26 to discuss the consultants' recent publication in the peer-reviewed Journal of Exposure Science and Environmental Epidemiology and Toxicology describing their efforts to update an epidemiological study of a cohort of workers at a chromate production plant in Painesville, OH.
"The exposure-response for hexavalent chromium (Cr(Vl))-induced lung cancer among workers of the Painesville Ohio chromate production facility has been used internationally for quantitative risk assessment of environmental and occupational exposures to airborne Cr(VI)," according to the paper's abstract. "We updated the mortality of 714 Painesville workers (including 198 short-term workers) through December 2011 … the occupational unit risk was 0.00166 (95% Cl 0.000713-0.00349), and the environmental unit risk was 0.00832 (95% Cl 0.00359-0.0174), which are 20% and 15% lower, respectively, than values developed in a previous study of this cohort."
An 1975 study of this cohort by Mancuso et al is the basis for EPA's existing IRIS assessment of inhalation risks only, with a cancer potency estimate of 1.2x10^-2 per ug/m^3.
In their presentation slides, ToxStrategies consultants cite a 2012 paper from TCEQ's author of the new Cr6 assessment, Joseph Haney, noting that his paper proposed an "approach for threshold based risk assessment with Reference Value = 240 ng/m3."
Some of the same ToxStrategies consultants met with ACC and IRIS staff Aug. 10 and regarding the human health risks of ingested Cr6, and in particular, their ongoing efforts to update modeling the consultants have developed. Two of the group's more recent studies provide additional differences between ingesting Cr6 when fed and when hungry, because questions linger over Cr6's ability to reduced to other, non-toxic valance states depending on stomach content.
http://insideepa.com/daily-news/texas-issues-novel-chromium-risk-finding-using-data-under-epa-review
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Proposed Curb on Vapor Degreaser Under White House Review
Oct 4, 2016 | BNA Daily Environment Report
By Pat Rizzuto
The White House's Office of Management and Budget is reviewing aproposed rule that would restrict trichloroethylene's use as a commercial vapor degreasing solvent.
The Environmental Protection Agency's proposed rule (RIN:2070-AK11) could affect dozens of businesses such as auto repair shops; printers; metal stampers; bolt, screw and nut manufacturers; electroplating operations; and small arms manufacturers, according to the description of it that appeared in the spring 2016 regulatory agenda of federal rulemakings.The White House office said the rulemaking is “economically significant,” meaning it is likely to have an annual effect on the economy of $100 million or more.
First Section 6 Rule Initiated Since Asbestos
The proposed rule marks the first time since 1991 that the EPA has initiated a rulemaking under Section 6 of the Toxic Substances Control Act. In 1991, the U.S. Court of Appeals for the Fifth Circuit overturned an agency regulation issued in 1989 that would have banned most uses of asbestos (Corrosion Proof Fittings v. EPA, (5th Cir. 1991)).
Under both the original and recently amended TSCA, Section 6 authorizes the agency to require labeling, specify use conditions or even ban a chemical in commerce that poses an unreasonable risk to human health or the environment.
The Frank R. Lautenberg Chemical Safety for the 21st Century Act (Pub. L. No. 114-182), which amended TSCA on June 22, eliminated TSCA's past requirement that the agency choose the least burdensome risk management option.
The Lautenberg Act added specific criteria the agency are to consider for Section 6 rulemakings. For example, the agency must consider information on the likely duration, intensity, frequency and range of ways diverse populations could be exposed to a chemical.
The agency did not, however, have to make all of these analyses for the TCE proposed rule. Section 26 of the Lautenberg Act said the EPA could pursue this solvent and certain other rulemakings for chemicals it had assessed—and found to pose unreasonable risks—prior to the Lautenberg Act's passage even though the agency's risk assessments were more narrow in scope than those the agency would conduct under the Lautenberg Act.
EPA staff have said they intend to propose the rule by the end of December.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=98219880&vname=dennotallissues&fn=98219880&jd=98219880
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New Power Plant Lawsuit to Revive Clean Power Plan Arguments
Oct 4, 2016 | BNA Daily Environment Report
By Andrew Childers
Arguments against the Obama administration's carbon dioxide standards for the existing fleet of power plants could resurface as opponents target related emissions standards for new facilities.
The 10 judge panel of the U.S. Court of Appeals for the District of Columbia Circuit that heard nearly seven hours of argument over the Clean Power Plan, which limits carbon dioxide from existing power plants, grappled Sept. 27 with how far the Environmental Protection Agency can go to force utilities to adopt new pollution control technologies. That could be a crucial argument for opponents of the agency's related carbon dioxide performance standards for new and modified power plants (RIN:2060-AQ91).
Lawsuits over the new power plant standards give opponents of the EPA's Clean Power Plan a second opportunity to challenge that rule as well. The Clean Air Act requires the EPA to set new source performance standards for new units under Section 111(b) before it can regulate the existing fleet of power plants under Section 111(d) as it has done with the Clean Power Plan. Undermining the standards for new power plants could place the Clean Power Plan in jeopardy, but attorneys say that will be a much more difficult challenge for opponents to successfully bring.
“If the court thinks 111(d) was OK, then 111(b) is no less an exercise of authority,” Jim Rubin, a partner at Dorsey & Whitney LLP in Washington, D.C., who attended last week's Clean Power Plan argument, told Bloomberg BNA. “There was definitely foreshadowing and understanding of the link.”
Briefing in litigation over the EPA's carbon dioxide new source performance standards for new and modified power plants is set to begin Oct. 13 and run through early February 2017 (North Dakota v. EPA, D.C. Cir., No. 15-1381, 8/30/16).
Though the two cases are expected to be very different—the EPA read its power to regulate far more broadly in the Clean Power Plan (RIN:2060-AR33) than it does in the standards for new and modified power plants—attorneys said there could be some overlap in the arguments presented to the D.C. Circuit. Arguments over how much the EPA can prod the power industry to adopt cleaner generation technologies and how far the agency can interpret that regulatory power will likely resurface during the new power plant litigation.
What Is ‘Technology Forcing?’
The Clean Air Act allows the EPA to set what are called “technology-forcing” standards under Section 111 to drive deployment of new pollution controls. Judges at the Clean Power Plan argument Sept. 27 grappled with what that means in the context of the EPA's broader reading of its Section 111 power (West Virginia v. EPA, D.C. Cir. en banc, No. 15-1363, argued 9/27/16).
“They can force technology. Technology forcing is part of what they can do,” Judge Patricia Millett said during an exchange with West Virginia Solicitor General Elbert Lin, who led challenges to the Clean Power Plan.
Lin conceded the EPA can drive the use of new pollution controls provided that equipment has been adequately demonstrated for the purposes of the Clean Air Act.
That exchange could be revived as opponents of the carbon dioxide standards for new plants mount arguments that carbon capture technology is not yet viable.
“The court seemed to appreciate EPA's dual role under the Clean Air Act to survey current trends in the electric sector along with forcing technology,” Jay Duffy, an attorney at Clean Air Task Force, which supported the EPA in the litigation, told Bloomberg BNA. “I think that's exactly what EPA did under the [new source performance standards] is look at what's going on and recognize its role under the Clean Air Act to drive innovation.”
Carbon Capture Is Central
The EPA's carbon dioxide standards for new power plants require new coal-fired units to achieve 1,400 pounds of carbon dioxide per megawatt-hour, which effectively requires the use of some form of carbon capture. One of opponents’ key arguments will be that the technology is not adequately demonstrated and cost effective. The units that are currently pursuing carbon capture are doing so with significant government subsidies.
“Nobody's got carbon capture and sequestration up and running yet, and it's not clear yet that it will work at a cost that is reasonable,” Thomas Lorenzen, a partner at Crowell & Moring LLP in Washington, D.C., who represents rural electric cooperatives in the litigation, told Bloomberg BNA. “Remember cost is part of this. They just haven't met that yet.”
Section 111 of the Clean Air Act requires the EPA to determine the “best system of emission reduction which (taking into account the cost of achieving such reduction and any nonair quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated.”
For the Clean Power Plan, the EPA read that language more broadly than it has before, determining the entire interconnected electric grid constitutes a single “system” and shifting generation from coal-fired power plants is the best means of reducing carbon dioxide emissions. For new and modified power plants, the EPA set plant-specific emissions limits that are more in line with how it has administered the performance standards in the past.
Despite the likely battle over carbon capture, the conventional nature of the new power plants standards, combined with the less onerous requirements for modified units, will make the rule that much harder to take down entirely in court, attorneys said.
Judges Weigh Transformation
Judges during the Clean Power Plan argument also weighed how much that rule would transform the power sector, something the Clean Air Task Force's Duffy said could benefit the EPA as it argues its carbon capture requirement is not particularly onerous.
“It's 16 percent [carbon dioxide] capture, so it's incremental,” he said.
During the Clean Power Plan argument, Judges Thomas Griffith and David Tatel both pressed opponents of the rule to explain how exactly it represents a sharp departure from the EPA's existing authority. That shows the court is considering shifts that are taking place in the utility sector and could be receptive to the EPA's regulations, Duffy said.
“How is [the Clean Power Plan] transformative when the change to the coal industry will only be a 5 percent difference between the rule being administered and being no rule at all?” Griffith asked at the argument.
During questioning, Tatel also sought to place the Clean Power Plan in the realm of prior EPA regulations.
“It seems to me like the agency is simply invoking existing authority—long established authority—and applying it to existing, well-regulated plants and applying it to a new pollutant,” he said.
Court Could Provide Guidance
The D.C. Circuit could further define the EPA's powers in the Clean Power Plan decision, which attorneys speculate could be issued by spring 2017. That would allow the 10-judge panel to weigh in before the argument over the new power plant rule.
“The D.C. Circuit would want their opinion in this case to inform the next panel on what 111(b) does,” Lorenzen said.
With 10 judges hearing argument on the Clean Power Plan, that means some of the same judges will likely hear the new source performance standards litigation as well. How much deference—or how little—the court ultimately grants the EPA for its Clean Power Plan could foreshadow the scrutiny the new power plant standards should expect as well.
“There were clearly some folks in the court who were receptive to the arguments that the EPA has broad authority to regulate greenhouse gases through aggressive methods,” Rubin said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=98219883&vname=dennotallissues&fn=98219883&jd=98219883
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After Arguments, Analysts Agree EPA Has Advantage In ESPS Litigation
Oct 3, 2016 | Inside EPA
By Lee Logan and Dawn Reeves
Law professors and other observers are solidifying their views that EPA has the advantage in litigation challenging its landmark power plant greenhouse gas rule, arguing the majority of appellate judges appointed by Democratic presidents gave few indications during oral arguments that they will side with their GOP-appointed colleagues to vacate the rule.
Such analysis is fraught with danger, given that it can be difficult to predict how a judge might rule on any issue based on his or her questions at oral argument. The challenge is even greater here because 10 judges on the U.S. Court of Appeals for the District of Columbia Circuit heard the suit, rather than the usual three-judge panel.
Even so, a wide range of observers -- including some who side with state and industry opponents of EPA's GHG rule known as the existing source performance standards (ESPS) -- say the agency came away from the Sept. 27 arguments in West Virginia, et al. v. EPA, et al., with a clear edge as it seeks to defend the rule, also known as the Clean Power Plan.
And if the agency does win at the D.C. Circuit, top legal scholars are already predicting an effort by EPA or rule supporters to ask the Supreme Court to lift its extraordinary stay of the rule that it issued in February with a 5-4 vote.
We were present at the oral arguments, and our reading of the proceedings supports the notion that EPA could be headed for a victory.
Rightly or wrongly, many analyses of the issue start with the partisan breakdown of the 10 judges considering the case. All active judges on the court are participating, except for Chief Judge Merrick Garland, whose appointment to the Supreme Court remains pending.
The six judges appointed by Democrats are: Judith Rogers, David Tatel, Sri Srinivasan, Patricia Millett, Nina Pillard and Robert Wilkins.
Four judges were appointed by Republicans: Karen LeCraft Henderson, Janice Rogers Brown, Thomas Griffith, and Brett Kavanaugh.
On balance, the six Democratic appointees during oral arguments gave little indication that they would side against EPA on the two core issues of the case: Whether to use a strict judicial review standard because the ESPS is “transformative,” in lieu of the traditional, deferential standard; and whether it was appropriate for EPA to establish GHG limits based on “generation shifting” in the power sector.
“For the petitioners to prevail in any of their challenges to vacate the rule, they will have had to convince two Democrat appointees of their logic, and retain all four Republicans. We didn't see much indication that this was taking place,” the energy consulting firm ClearView Energy Partners says in a Sept. 27 analysis.
Sources on the challengers' side tell Inside EPA privately that they expect EPA to prevail, at least at the D.C. Circuit level, in part because they do not believe a majority of the Democratic appointees will be willing to take down President Obama’s signature climate rule.
Even if the 10-judge panel splits 5-5, it would still uphold the rule because there would not be enough judges to grant the challengers' review petition.
'Have Its Cake'
Besides the two core issues, the several remaining challenges during the day-long arguments all pointed toward more decisive EPA wins, with even some of the GOP appointees voicing significant skepticism of petitioners' claims or their ripeness.
For example, Kavanaugh -- a frequent critic of EPA's rules who many expect to side against the agency on its authority to develop generation shifting-based standards -- nonetheless said that a key part of opponents' separate claim that EPA lacks threshold authority to issue the rule amounts to a “hall of mirrors.”
One source was especially chagrined that the court did not appear to be interested in that argument -- which says that EPA cannot issue the ESPS at all because it already regulates coal plants' mercury emissions under section 112 of the Clean Air Act, and the law does not permit simultaneous regulation of the same source category under section 111.
Prior to the arguments, many rule opponents thought the so-called section “112 exclusion” would pave a swift path to victory. They noted that a three-judge D.C. Circuit panel -- Kavanaugh, Griffith and Henderson -- heard arguments on this issue during a novel challenge to the proposed version of the rule. While they ruled that the claims were not yet ripe, they appeared interested in the issue.
During a Sept. 28 interview with E&E TV, Jody Freeman and Richard Lazarus of Harvard Law School underscored Srinivasan's comments during the arguments as indicative of supporting EPA. While many read his questioning as fact-based and middle of the road, Lazarus said the “moderate” on the court “seemed to be nodding” when EPA defended its authority, while he “challenged the other side.”
“And if you've got a judge like Sri Srinivasan on your side, at that point I say I think EPA's got five and maybe more” in support of the ESPS, he said.
Freeman added that Srinivasan “did something quite important” in focusing several times on the issue of why some petitioners want to use generation shifting to comply with the rule but believe EPA is legally barred from using the strategy when setting targets.
“He seemed to believe there should be symmetry there, and that fed right into EPA's position,” she said.
In a Sept. 29 blog post, Duke University's Tim Profeta noted that several judges “expressed concern” over the issue of barring EPA from using generation shifting to set targets but allowing generators to use it for compliance. “Can the industry have its cake and eat it, too?”
Those comments track with our interpretation of Srinivasan's remarks. The Obama appointee asked several questions about the “symmetry” issue, but otherwise did not tip his hand about how he might rule.
Also of note, West Virginia Solicitor General Elbert Lin during post-argument events said he made an effective rebuttal to rule supporters on this point -- that EPA “conceded” that the standards must not be entirely balanced with compliance activities when it excised energy efficiency measures from the rule's standard-setting formula.
Judges' Indications
However, it is far from clear whether Lin's argument gained traction with Srinivasan or the other judges.
Other Democratic appointees who spoke at the arguments generally gave relatively strong indications that they could support EPA's position on the two core issues in the case.
Among the Republicans, both Kavanaugh and Brown offered sharp critiques of EPA's position. Griffith also had tough questions for Department of Justice attorneys defending the rule, though at other points he questioned whether the rule is actually “transformative” as opponents claim.
Neither Henderson nor Wilkins asked questions during the arguments.
Overall, Profeta writes, “the government came through it with clear indications of support from three or four judges. At least four other judges, however, either did not speak or evaluated the case in such a Socratic manner that their positions were more mysterious. With six votes needed for a win, supporters of the rule will be holding their breath until the opinion appears.”
ClearView's analysis was more bullish for EPA, arguing that the appellate court is more likely to remand the rule to EPA to address any identified faults, but will “otherwise leave it in place.”
However, industry attorney Jeff Holmstead told Bloomberg Government that “most of the judges seemed to believe that the Clean Power Plan is a 'transformative' rule with 'vast economic and political significance.'” Such a finding would require judges to find a “clear statement” from Congress about EPA's authority -- a standard that the agency likely would not meet.
ESPS backers sharply disagree with that analysis, though, with an attorney representing power companies supportive of the rule arguing Sept. 28 that, “I don't think they have six judges who believe the 'clear statement' rule would apply in this instance.”
Effort to Lift Stay
In the E&E interview, Freeman said that if EPA does win at the D.C. Circuit level, “there will likely be some effort to have the stay lifted . . . and that will be a game changer if it happens.”
Such a request could hinge on the future makeup of the high court. Justices granted the stay on a 5-4 vote in February, though Justice Antonin Scalia died just days later, significantly scrambling the dynamics of the court.
If Garland is ultimately confirmed as Scalia's replacement, EPA or other rule supporters might view the newly fashioned court as willing to lift the stay.
That effort would be fiercely opposed by industry and state challengers, who are sure to note that the high court's order says the stay will remain in effect until the justices dispense with any consideration of the litigation.
However, ESPS supporters are likely to argue that a D.C. Circuit victory changes the calculation on a key criterion for issuing a stay -- that opponents are “likely” to succeed on the merits of their challenges.
Additionally, Freeman noted that if EPA wins at the D.C. Circuit level, Kavanaugh is “very well known for writing terrificcert [petitions] in the form of a dissent” that would provide a road map for any future high court petition.
“We already saw from what he said [Sept. 27] on the bench what his dissent, if it turns out to be a dissent in this case, will look like, how he will say this is a major question of incredible importance, economically and politically significant, [and] we should have a clearer statement from Congress” about EPA's authority, she added.
http://insideepa.com/daily-news/after-arguments-analysts-agree-epa-has-advantage-esps-litigation
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EPA Clarifies Scope Of Oil & Gas NSPS Reconsideration
Oct 3, 2016 | Inside EPA
EPA is seeking to clarify that the scope of its notice denying reconsideration on certain provisions in its 2012 package of air rules for the oil and natural gas sector only applies to its new source performance standards (NSPS), which have since been revised, and not the agency's related air toxics rules that it is still reviewing.
In a notice slated for publication in the Oct. 4 Federal Register, EPA says that it is issuing a supplemental letter that amends its July 29 notice to clarify that it is continuing to evaluate petitions for reconsideration from environmental groups on its national emissions standards for hazardous air pollutants (NESHAP), saying the July 29 action applies only to the 2012 NSPS.
EPA also issued a revised document, “Denial of Petitions for Reconsideration of Certain Issues: Oil and Natural Gas New Source Performance Standards,” detailing its reasons for “denying the above mentioned petitions with respect to NSPS issues not otherwise addressed in previous reconsideration actions.”
The agency in the Register notice says any legal challenges to its decision must be filed in the U.S. Court of Appeals for the District of Columbia Circuit because the rejection concerns a “nationally applicable” rule. If industry or advocates file suit within the 60-day deadline to sue, it would mark yet another round of litigation over the 2012 air rules.
EPA first issued its oil and gas industry NESHAP on Aug. 16, 2012, targeting air toxics from the sector separate from its new source performance standards (NSPS) for the industry that limits other pollutants.
The agency recently updated the NSPS to include a first-time emission limit on the potent greenhouse gas methane, and recently took comment on a draft information collection request (ICR) on methane emissions from existing oil and gas drilling. The results of the ICR could potentially inform a methane rule for those sources.
The NESHAP regulates air toxics such as benzene and formaldehyde, and after the agency issued the rule it received petitions for reconsideration of various provisions. In rulemakings dated Sept. 23, 2014, and Dec. 31, 2014, EPA agreed to revise those parts of the rule -- but is continuing to reevaluate other issues.
http://insideepa.com/news-briefs/epa-clarifies-scope-oil-gas-nsps-reconsideration
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Lawmakers To Probe Energy Development Barriers, Fracking Rule
Oct 3, 2016 | E&E News PM
By Cecelia Smith-Schoenwalder
The House Natural Resources Committee will hold a field hearing in New Mexico tomorrow to discuss energy development on tribal land.
The panel, which will convene the hearing at the Capitol in Santa Fe, plans to scrutinize federal regulations and information-sharing problems that could be hurting tribal development.
A committee memo on the hearing pointed to Government Accountability Office research complaining of "missed opportunities" and "lost revenue" for tribes.
Lawmakers say they plan to assess the current energy resources available on American Indian lands, including oil, coal and natural gas. Of particular focus will be the Bureau of Land Management's hydraulic fracturing rule, which is stuck in litigation.
"In the rule, the BLM treats land held in trust for Indians as federal land even though under federal law, the beneficial interest in trust land is vested exclusively in the Indian beneficiaries," said the memo.
The Natural Resources panel will also study the potential for wind and solar power in Indian Country. Currently, only one reservation holds significant solar facilities.
A nonprofit group called GRID Alternatives last week announced construction on 92 solar installations in six tribal communities across California, Montana and South Dakota.
The project, which might come up at the field hearing, uses $1 million in cost-shared grants from the Department of Energy as a part of the agency's initiative to deploy clean energy to 24 tribal areas.
"We are one of the poorest populations in the nation, and energy issues are a part of this problem," said Ken Haukaas, a commissioner for the Rosebud Sioux Tribal Utility Commission who helped the tribe develop its strategic energy plan. "But energy can also be part of the solution. As a tribe, we must strive to be energy independent."
Schedule: The hearing is Tuesday, Oct. 4, at 12 p.m. at the New Mexico Capitol, Room 309.
Witnesses: James Olguin, tribal council member, Southern Ute Indian Tribe; Jack Ferguson, representative, Intertribal Timber Council; Louis Denetsosie, CEO, Navajo Nation Oil and Gas Co.; Richard Glenn, executive vice president of lands and natural resources, Arctic Slope Regional Corp.; and Eric Henson, senior vice president, Compass Lexecon.
http://www.eenews.net/eenewspm/2016/10/03/stories/1060043771
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Trade Group Continues Fighting New PA Shale Regulations As Implementation Nears
Oct 3, 2016 | Natural Gas Intelligence
By Jamison Cocklin
The Pennsylvania Independent Oil and Gas Association (PIOGA) is again trying to stop new shale drilling regulations from going into effect until permitting requirements are dropped from the final package, claiming that a state Supreme Court ruling last week validates its argument against the provisions.
In a series of quick actions late last week, PIOGA filed an appeal with the state Supreme Court requesting that a lower court's decision upholding the permitting requirements be overturned. A day later, the organization sent a letter to the General Assembly's Joint Committee on Documents asking it to take "whatever measures necessary to prevent" publication of the new regulations in the state bulletin. The new rules are expected to be published on Saturday, at which time they would go into effect.
Early last month, the state Commonwealth Court denied the organization's motion to declare that the Pennsylvania Department of Environmental Protection (DEP) has no authority to require operators to identify parks, forests, scenic rivers, national landmarks and other public resources in their well permit applications (see Shale Daily, Sept. 2). It claims that the DEP can no longer require operators to identify impacts to public resources and wildlife after the state Supreme Court in 2013 threw out the requirements when it deemed parts of Act 13 -- the state's oil and gas law -- unconstitutional in the broader Robinson Township case (see Shale Daily, Dec. 20, 2013).
Last week, the high court decided on the remainders of the Robinson Township case and struck down other parts of the law in a ruling largely unfavorable for the oil and gas industry (see Shale Daily, Sept. 29). But PIOGA said language included in last week's opinion supports its argument that the public resource protections included in Act 13 are invalid.
The DEP began drafting the rules in 2011. The Environmental Quality Board, the Independent Regulatory Review Commission and the state Attorney General's office have approved the new regulatory package. The rules are designed to reduce impacts on public resources, such as schools and parks, help prevent spills, strengthen waste management and require stronger well site restoration.
The Joint Committee on Documents oversees the Legislative Reference Bureau, which is responsible for compiling and drafting the regulations for the state bulletin. Deputy Secretary of the DEP's Office of Oil and Gas Management Scott Perry recently said his agency received the draft of the regulations from the bureau and that they would likely be published and implemented on Oct. 8 (see Shale Daily,Sept. 23).
PIOGA wants the permitting requirements scratched from the final rules before they are published, saying in its letter to the committee that "publication would improperly give the force and effect of law to regulatory provisions that are based on invalid and enjoined statutory authorization." A committee official said the letter is under review. PIOGA represents more than 500 members working throughout the state's oil and gas industry, including producers developing the Marcellus and Utica shales.
http://www.naturalgasintel.com/articles/107957-trade-group-continues-fighting-new-pa-shale-regulations-as-implementation-nears
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Olson: U.S. Energy Needs Fair, Sensible Rules And Less Red Tape
Oct 3, 2016 | Houston Chronicle
By Pete Olson
As all Texans and many Americans know, thanks to innovative technologies, we are the No. 1 producer of oil and gas in the world. It wasn't too long ago that the world view saw negative, powerless words like "peak oil" or an "energy crisis." However, simply having vast resources does not immediately translate into benefits at home and abroad. To achieve that, policy changes must be made.
Our focus, as always, is here at home. Our newly accessed reserves of oil and gas tend to be in the middle of the country. Texans are blessed to have little federal land, and we're graced with common-sense bureaucrats in Austin. So we have no problem getting oil to refineries or gas to local communities. However, parts of the country face unnecessarily high gas costs that threaten reliability and drain money from local economies.
Permitting a pipeline, much like developing electricity power lines for some markets in the country, has become remarkably and illogically difficult. Federal regulators make the process lengthy and expensive. It is a system only a bureaucrat could love. The process also forces working families across America to pay more, as well as making it harder for engineers, welders and construction workers to find jobs.
In the House, we are developing solutions that put one federal agency in charge to streamline the permitting nightmare when projects cross federal lands or international boundaries, and generally try to make the process faster and fairer. We will never steamroll local communities. But no one is well-served when bickering and bureaucratic backlogs halt progress.
If we get this process right, all Americans can benefit from U.S. energy abundance. The market should dictate prices. But if the prices are artificially high simply because some Americans live where permitting problem areas exist, that is patently unfair. Thanks to our energy abundance, America is well-positioned to export some of this energy on the global scale. Late last year, my colleagues and I ended an outdated law; as a result, widespread exports of American crude oil are now allowed. Tankers full of our oil are reaching markets across the globe. This makes it harder for thugs like Vladimir Putin to hold American allies hostage by restricting access to Russian crude.
We must also expedite the process for exporting American natural gas. Having recently traveled to India, Japan and South Korea, I've heard first-hand how these American allies need our oil and natural gas to grow their economies. Much of Europe is also in desperate need of natural gas, thanks to politics that hurt their economies. This makes them weaker on the international stage and stuck relying on countries that may not share U.S. foreign policy goals. By slashing the federal red tape on selling natural gas abroad, we can help our allies while creating more jobs right here at home. In Texas and other energy-rich states, this means more energy and construction jobs.
America lacks a comprehensive energy policy. I have long felt that the moment a policy is set in stone, the sooner the reality on the ground begins to change. That is why our best bet is to respond to changing market conditions by developing sensible rules that allow the market to work and benefit American interests at the same time.
Olson, a Republican representing Houston-area District 22 in the U.S. House of Representatives, is vice chairman of the House Energy and Power Subcommittee. He is leading the subcommittee following the resignation from Congress last month of Chairman Ed Whitfield, R-Ky.
http://www.houstonchronicle.com/opinion/outlook/article/Olson-U-S-energy-needs-fair-sensible-rules-and-9640965.php
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Companies Have Begun Using Our Waste to Power the World
Oct 3, 2016 | Futurism (In Real Clear Energy)
By Jelor Gallego
Lockheed Martin has installed a bioenergy plant at an aircraft factory in New York that turns discarded wood chips into energy to produce 250KW of power.
Bioenergy facilities provide a way to generate clean energy and eliminate waste that normally builds up in landfills.TRASH TO TREASURE
Reusing waste is no new idea. The whole green revolution is about recycling most if not all waste produced by cities. In fact, waste-to-energy plants are already being constructed in certain parts of the world like Denmark and Sweden.
Lockheed Martin has now installed a bioenergy plant at their Owego, New York aircraft factory to power manufacturing with human waste. You can see the factory below in a Lockheed Martin promotional video.
The company partnered with Concord Blue, creating a plant that can provide 250 kilowatts of power. It does this by turning waste into gas and using that for power.
First, waste material is collected and recyclables like metal and plastics are removed. The facility then dries out and heats up biowaste.
At a certain temperature, the solid waste becomes a gas, which then transforms into synthetic gas. This is then used to fuel a combustion engine that produces electricity, or can help produce hydrogen and biofuels.
The current facility uses discarded wood chips from nearby lumber mills, but Lockheed wants to utilize municipal solid waste, industrial waste, and more.
It is also building a bigger facility in Herten, Germany capable of producing 5 megawatts of power. This facility will convert 50,000 tons of feedstock to power 5,000 homes and businesses.CLEANER PROCESS
If incinerating waste doesn’t sound eco-friendly to you, consider how the whole process uses no oxygen or flames. This means no harmful by-products or greenhouse gasses are emitted.
In fact, the biowaste plant is able to make the whole Owego facility carbon neutral and is estimated to help reduce carbon emissions by 9,000 metric tons per year.
The method they use could also be scalable to smaller “modules,” meaning a smaller unit like a hospital complex or a forward operating base could power itself, reducing the load on energy grids powered by fossil fuels.
http://futurism.com/companies-have-begun-using-our-waste-to-power-the-world/
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Obama Defends Need For Natural Gas, Nuclear In 'Real World'
Oct 3, 2016 | PoliticoPro - Whiteboard
By Anthony Adragna
President Barack Obama said he understands environmentalists' concerns about potential risks of fracking, but defended the need for natural gas and nuclear power as part of the nation's energy mix.
Until the world develops the perfect zero emission energy source, "we’ve got to live in the real world," Obama said today at the South by South Lawn event. "I say all that not because I don’t recognize the urgency of the problem, but because we’re going to have to straddle between the world as it is and the world as we want it to be and build that bridge."
Recognizing a place for technologies like nuclear power will be critical if the world hopes to see rapidly developing nations like China and India deliver on promises to drive down their emissions, the president said.
Obama admitted such incremental progress was not ideal or perfect, but said it was the only realistic way to actually solve the problem of climate change.
"Better is good. Better isn’t enough. Better is not always ideal and, in the case of climate change, better isn’t going to save the planet. But if we get enough better — each year we’re doing something that’s making more progress, moving us forward, increasing clean energy — then that’s ultimately how we end up solving this problem," he said.
https://www.politicopro.com/energy/whiteboard# -
Elk River Chemical Spill Class Action Proceeds(1)
Oct 3, 2016 | BNA Toxics Law Reporter
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 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.
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 assert that both Eastman and the water company defendants could have prevented the spill by taking better precautionary measures and complying with applicable regulations ( 30 TXLR 995, 10/15/15 ).
But Eastman argues 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 asserts that the material safety data sheet (MSDS) it provided for MCHM meets federal regulatory standards, preempting the state law claims.
Evidence on that and related questions, however, is in dispute and should go to a jury, the U.S. District Court for the Southern District of West Virginia 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://www.bna.com/elk-river-chemical-n57982077872/
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Proposed Pacific Oil Terminal Has Treaty Impacts: Tribe
Oct 4, 2016 | BNA Daily Environment Report
By Paul Shukovsky
Plans for a proposed crude-by-rail terminal on Washington's Pacific Coast is pitting the Quinault Indian Nation and several environmental-group allies against the Westway Terminal Co. LLC, with an outcome that may be determined in a courtroom.
The proposed project would involve hauling up to 751.8 million gallons each year of Bakken crude from North Dakota and possibly tar-sands bitumen from Alberta to an existing methanol distribution facility at the Grays Harbor waterfront town of Hoquiam, Wash., which sits on an inlet of the Pacific Ocean at the base of the Olympic Peninsula. But the Quinault, whose culture revolves around a treaty-protected salmon fishery, see their interests at risk in the event of an oil spill.
Current plans disclosed in the environmental impact statement, released Sept. 30, call for the crude to be transshipped by tanker or barge to refineries on Puget Sound and California, though opponents fear the facility will eventually be enlarged and used to export oil overseas.
“There are unavoidable impacts that will effect Quinault Nation treaty interests,” Tyson Johnston, Quinault vice president, told Bloomberg BNA in an Oct. 3 telephone interview. “And the project represents safety risks to not only our citizens but all the citizens in Grays Harbor.”
Tribe Defending ‘Our Way of Life.’
The EIS—overseen by the city of Hoquiam and the state Department of Ecology—identified dangers ranging from a tsunami inundating the seven-acre tank farm that could hold up to 1 million barrels of crude to the potential derailment of one of the 458 unit trains per year that will bring crude to port. The next step is a determination by Hoquiam that could come as soon as late November on whether to grant the project a Shoreline Substantial Development Permit.
City Administrator Brian Shay will make that determination.
“My assumption is that whatever happens, it will get appealed to the state Shorelines Hearing Board,” Shay told Bloomberg BNA Oct. 3.
Johnson said the tribe would appeal the issuance of a shoreline permit.
“The Quinault Nation is going to do everything we can. We will use every tool in our tool box to defend our nation's interests; our natural-resources-based economy that also depends on tourism; our livelihood and our way of life,” he said.
Earthjustice attorney Kristen Boyles, who represents the tribe, echoed Johnston's resolve.
“Almost assuredly. If the decision approves this terminal in the way it is proposed now, the tribe will challenge,” she told Bloomberg BNA Oct. 3 when asked if she thought her client would appeal a permit.
69 Mitigation Measures Proposed
The EIS recommends 69 mitigation measures for the project, such as upgrading rail tankers, providing escort tugs in the harbor and adding response equipment caches at key locations.
“Any project that needs 69 mitigation measures is a project that should be denied,” Boyles said.
Boyles said that the terminal could eventually be expanded and used to export crude.
“When this project was first proposed, there was a domestic crude export ban in place in the United States,” she said. “That was lifted last year. I do not know what this company's plans are, but there is now no statutory impediment to their exporting crude out of the country.”
Westway did not respond to an Oct. 3 telephone call and e-mail from Bloomberg BNA seeking comment. But Shay, when asked if the company submitted any information regarding the potential for future export, said: “No, absolutely not. Never once in this process.”
The terminal has already been the subject of litigation. Boyles succeeded in getting the Shorelines Hearing Board in 2013 to overturn a decision by Hoquiam and the Department of Ecology that no EIS was required to permit the project.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=98219901&vname=dennotallissues&fn=98219901&jd=98219901
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EPA Publishes Proposed Threshold For GHG Permits
Oct 3, 2016 | Inside EPA
EPA has formally published its proposed rule setting a de minimis greenhouse gas emissions level to serve as a trigger for when an air permit needs to include GHG limits, a plan that sticks with the same 75,000-ton-per-year (tpy) threshold the agency has long used as the trigger for when emissions are significant and subject to permitting.
The agency published its proposed rule in the Federal Register Oct. 3, and gives stakeholders until Dec. 2 to comment.
The proposal says that 75,000 tpy is an appropriate significant emissions rate (SER) for triggering a best available control technology (BACT) review to determine whether or what GHG controls are needed under the prevention of significant deterioration (PSD) permit program.
The proposed rule, which EPA signed last month, says that in cases when new or modified facilities are subject to a BACT review, they have four potential options to limit GHGs, including energy efficiency measures, carbon capture and storage, gas recovery and utilization and leak detection and repair measures.
EPA is setting the threshold after the Supreme Court in its 2014 ruling in Utility Air Regulatory Group (UARG) v. EPArejected portions of EPA's tailoring rule. The rule had generally sought to craft GHG thresholds above which new and modified stationary sources would be subject to PSD permits, which regulate major sources in areas that meet federal air quality standards.
It did this by tailoring statutory thresholds of 100 or 250 tpy for conventional pollutants to GHGs to prevent regulation of office buildings and other small entities. Step 1 of the rule set a 75,000 tpy trigger for when GHGs were first subject to permitting, rather than the statutory levels that were far too low for GHGs.
While the Supreme Court held EPA had authority to include GHGs in major source PSD and Title V permits for so-called “anyway sources” -- which are those that would otherwise be subject to PSD permit requirements for their conventional pollutants -- it found that GHGs on their own could not trigger the permitting requirements.
The justices also said EPA should set a de minimis threshold for when GHGs trigger BACT reviews for the anyway sources.
EPA says in the proposal that the high court “recognized that the EPA did not justify on de minimis grounds the 75,000 [tpy] threshold that currently determines whether GHG BACT is required for 'anyway sources.' The U.S. Supreme Court also expressly did not address whether 75,000 tpy [GHG] necessarily exceeds a true de minimis level, holding only that the EPA must justify its selection of such a level on proper grounds.”
http://insideepa.com/news-briefs/epa-publishes-proposed-threshold-ghg-permits
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