Preview Newsletter
ACC AM 3/9/2017
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(ACC Mentioned) ARA Hosts Regulators, Policy Leaders
Mar 9, 2017 | AGPRO
During the Agricultural Retailers Association board of directors and committee meetings on Feb. 13-15, attendees heard from several legislators, federal regulators and policy leaders on issues essential to ag retailers. -
Pruitt May Have To Embrace 'Sue-And-Settle' Tactic He Pledged To End
Mar 8, 2017 | Inside EPA
By Dawn Reeves
EPA Administrator Scott Pruitt has promised to end “sue-and-settle” suits that environmentalists bring to enforce missed statutory deadlines, but many observers say he may have to embrace the tactic or face the risk of courts imposing much shorter deadlines than what he would otherwise be able to negotiate. -
Congress Just Fixed TSCA – Yet Is Now Gearing Up To Re-Impose The Worst Flaws Of The Old Law Across The Entire Federal Government
Mar 8, 2017 | Environmental Defense Fund.
By Richard Denison,
I noted in a recent post EDF’s grave concerns about the Regulatory Accountability Act (RAA), which passed the House on January 11. A shorter but still very concerning version of it may soon be introduced in the Senate, modeled on last Congress’ Senate version of RAA. -
(ACC Mentioned) Architects, Chemists Spar Over Antimicrobial Building Products
Mar 8, 2017 | Construction Dive
By Chris Wood
The American Chemistry Council has criticized a white paper published by global architecture firm Perkins+Will on the risks related to the use of antimicrobial building products in surface and other finish applications, according to Architect. -
Titanium Dioxide Nanoparticles Can Disturb Digestion, Research Shows
Mar 9, 2017 | Chemical Watch
By Philip Lightowlers
US researchers have found that titanium dioxide nanoparticles can disturb nutrient absorption in gut cellular models. The findings add to concerns over recent evidence that they can cross the gut barrier and upset the immune system, and may have carcinogenic properties through inhalation. -
(ACC Mentioned) ACC Welcomes ExxonMobil Plans
Mar 9, 2017 | Hydrocarbon Engineering
By Callum O'Reilly
The American Chemistry Council (ACC) has issued a statement applauding ExxonMobil Corp.’s announcement that it will be expanding its manufacturing capacity along the US Gulf Coast. -
Congressman-Physicist Warns of Threat to U.S. Energy Hegemony
Mar 9, 2017 | BNA Daily Environment Report
By Brian Dabbs
Insufficient funding for the Energy Department and EPA will jeopardize U.S. global hegemony in energy science, and green initiatives are particularly vulnerable to budget cuts in the coming months, Rep. Bill Foster (D-Ill.), Congress’ only physicist, told House appropriators. -
Zinke Vows Support On Energy Projects, Infrastructure
Mar 9, 2017 | E&E Daily
By Corbin Hiar and Cecelia Smith-Schoenwalder
Interior Secretary Ryan Zinke pledged yesterday that the Trump administration would work to support tribal energy development. -
Trump Order On Obama’s Climate Rule ‘Unlikely’ This Week
Mar 8, 2017 | The Hill - E2 Wire
By Timothy Cama
President Trump’s executive order to begin repealing former President Barack Obama’s main climate change rule is "unlikely" to be signed this week, according to a White House official. -
A Father of Fracking Seeks to Emulate U.S. Shale Boom in Alaska
Mar 9, 2017 | Bloomberg Markets
By Alex Nussbaum
A pioneer of the U.S. shale revolution wants to take fracking to America’s final frontier. Success could help revive Alaska’s flagging oil fortunes. -
Greens Demand Emails From EPA, Trump Transition Team
Mar 9, 2017 | E&E News PM
By Hannah Hess
A Freedom of Information Act request filed yesterday with U.S. EPA seeks documents pertaining to a controversial decision related to methane emissions from the oil and gas industry, including communications between Trump's transition team and lobbyists. -
(ACC Mentioned) Industry Asks Pruitt To 'Rescind' Obama EPA's RMP Rule Pending Litigation
Mar 8, 2017 | Inside EPA
By Dave Reynolds
A broad coalition of petrochemical, power and other industry groups is petitioning EPA Administrator Scott Pruitt to “reconsider and rescind” the Obama administration's final rule overhauling the agency's industrial facility accident prevention program even as the groups prepare to file litigation that they hope will lead to the rule's elimination. -
New Suit Faults SoCalGas for Natural Gas Blowout
Mar 9, 2017 | BNA Daily Environment Report
By Steven M. Sellers
Dozens of California residents want damages from Southern California Gas Co. for a gas injection well blowout that released toxic gases for months, according to a suit filed March 6 (Sarkisyan v. S. Calif. Gas Co., Cal. Super. Ct., No. BC652788, filed 3/6/17). -
National U.S. Carbon Price Inevitable: CERAWeek Panel
Mar 9, 2017 | BNA Daily Environment Report
By Nushin Huq
The U.S. will eventually need a national carbon-pricing policy—though it may be a long, bumpy road to get there. -
EAB Suit Claims Unlawful EPA 'Rewriting' Of Waste Combustor MACT Rule
Mar 8, 2017 | Inside EPA
By Stuart Parker
A waste disposal company's pending Environmental Appeals Board (EAB) suit accuses EPA Region 5 of unlawfully “rewriting” the agency's hazardous waste combustor (HWC) maximum achievable control technology (MACT) air toxics rule, saying an air permit the region issued sets stricter monitoring mandates than the MACT requires. -
D.C. Circuit Rejects Brick MACT Suit Briefing Extension
Mar 8, 2017 | Inside EPA
The U.S. Court of Appeals for the District of Columbia Circuit has rejected brick producers' motion to extend briefing deadlines in their suit over what they say is EPA's excessively stringent air toxics rule setting maximum achievable control technology (MACT) for brick and tile manufacturing facilities. -
EPA Science Advisers Favor Keeping Nitrogen Air Standards
Mar 9, 2017 | BNA Daily Environment Report
By Andrew Childers
Existing federal air quality standards for nitrogen dioxide are sufficient, the EPA's science advisers said, affirming the agency's preliminary determination that no changes are needed to the current requirements. -
Environmentalists Vow Strong Opposition To Trump Bid To End CPP Suit
Mar 8, 2017 | Inside EPA
By Dawn Reeves
Environmental groups say they intend to oppose any Trump administration request for the U.S. Court of Appeals for the District of Columbia Circuit to remand or place in abeyance litigation over EPA's power plant greenhouse gas rule, saying it is important for the court to rule on many issues in the case regardless of whether the Trump EPA intends to scale back the rule.
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Environment News
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(ACC Mentioned) ARA Hosts Regulators, Policy Leaders
Mar 9, 2017 | AGPRO
During the Agricultural Retailers Association board of directors and committee meetings on Feb. 13-15, attendees heard from several legislators, federal regulators and policy leaders on issues essential to ag retailers.
Conservation
On Feb. 13, Mark Rose, who serves as financial assistance programs director for the USDA Natural Resources Conservation Service (NRCS), addressed the ARA policy committee.
He offered an update on various conservation programs available to growers and how ag retailers can be in the best position to provide stewardship guidance to their customers. He and ARA public policy director Hunter Carpenter also addressed the recent memorandum of understanding (MOU) among NRCS, ARA and several other ag organizations.
The MOU established “a collaborative framework for cooperative activities intended to enhance and accelerate the transfer and adoption of technologies and approaches.”
The partnering organizations plan to develop initiatives such as employee training, producer outreach, joint projects and communications efforts that advance conservation practices. Efforts will be focused on soil health and the 4Rs: right source, right rate, right time and right place.
Conservative Policy
Later in the day, Dwayne Carson, assistant director of the Republican Study Committee, discussed some of the policy priorities for the new Republican majority and how organizations like ARA can best position their issues for success.
He touched on key issues including regulatory reform, appropriations, the Affordable Care Act and immigration. He advised ARA and the industry to be more local in its advocacy efforts –go to the roundtables, attend town halls and listening sessions and send letters to the editor.
The Republican Study Committee is a Capitol Hill think tank. Working with a staff of 15, the committee issues briefs for all bills before Congress. With 160 members, it is the largest caucus outside of the Republican conference.
Homeland Security
Amy Graydon, acting director of the Infrastructure Security Compliance Division for the Department of Homeland Security, followed Carson’s advocacy talk. She discussed the department’s transition, reviewed the Chemical Facility Anti-Terrorism Standards (CFATS) program and provided an update on inspections, outreach, personal surety and the upcoming Chemical Security Summit.
Graydon, who currently leads the division responsible for CFATS, says the newly confirmed Secretary John Kelly has been engaged with the division and CFATS. He recently spoke at the American Chemistry Council about the program and chemical security.
The agency is currently working with its inspectors to ensure consistency in its CFATS inspections and conduct outreach to collect Top-Screen information from more than 19,000 facilities. In this effort, DHS used enhanced tiering methodology to better identify facility threats, consequences and vulnerabilities. This may cause facilities to change tiers. Facilities will have 60 days to respond to the Top-Screen letter.
Graydon said personal surety rules will expand to tier 3 and tier 4 facilities later this year.
She also addressed the long-delayed Ammonium Nitrate Security Program. According to Graydon, challenges with the current statute have postponed delivery of the final rule. It’s currently under review by the National Academy of Sciences.
Legislative Agenda
Separately, Sen. Roy Blunt (R-Mo.) and Sen. Heidi Heitkamp (D-N.D.), who received ARA’s Legislator of the Year Award, also addressed the ARA board of directors. Both discussed OSHA’s overreach removing the retail exemption to Process Safety Management, fixing the duplicative National Pollutant Discharge Elimination System Pesticide General Permit regulations, overall regulatory reform, environmental policy and free and fair trade.
Renewable Fuels
Bob Dinneen, president and CEO of the Renewable Fuels Association, concluded the ARA board of directors meeting on Feb. 15 by talking about ethanol.
He lauded the ethanol industry for bringing back jobs, investment and opportunity to rural America. He pointed to the certainty provided by the Renewable Fuels Standard as the centerpiece of ethanol’s growth in the past 10 years.
Dinneen is optimistic about the Trump administration’s stance on renewable fuels. He cited Trump’s campaign promises for regulatory reform and his appointment of Iowa Gov. Terry Branstad as Ambassador to China. Also, he mentioned President Trump’s commitment to rural development and American jobs–a commitment that was pivotal in getting him elected.
“Don’t let (Trump) walk away from (his support of the RFS),” Dinneen says, as he encouraged ag retailers and suppliers to advocate on behalf of ethanol. “Remind him how important it is.”
Although Dinneen was circumspect about exiting the Trans-Pacific Partnership and the administration’s potential renegotiation of the North American Free Trade Act, he was hopeful that new bilateral agreements could better position U.S. renewable fuels in the export market.
“It’s more important than ever that value-added markets like ethanol are allowed to continue to grow,” he says.
Planning Ahead
The ARA board of directors and committees will meet next on Sept. 11-13 in Springfield, Ill.
http://www.agprofessional.com/magazine/ara-hosts-regulators-policy-leaders
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Pruitt May Have To Embrace 'Sue-And-Settle' Tactic He Pledged To End
Mar 8, 2017 | Inside EPA
By Dawn Reeves
EPA Administrator Scott Pruitt has promised to end “sue-and-settle” suits that environmentalists bring to enforce missed statutory deadlines, but many observers say he may have to embrace the tactic or face the risk of courts imposing much shorter deadlines than what he would otherwise be able to negotiate.
The practical realities of the overwhelming amount of work Congress assigned EPA to complete on tight deadlines may force a shift in Pruitt's thinking, sources say. “Ultimately, Pruitt is going to come to understand, even though he might hate sue-and-settle, that he will get worse deadlines by a judge and have no choice but to abide by them,” one industry source says.
And others warn that if the agency is to meet its congressionally mandated deadlines, as Pruitt has promised, it will likely need additional resources that the Trump administration appears unlikely to provide.
But despite the hurdles, one industry source says Pruitt may be able to select a handful of cases where he can argue for discretion due to limited budgets -- which was allowed by the U.S. Court of Appeals for the District of Columbia Circuit once -- to set a precedent that could help his cause.
However, Ethan Shenkman, EPA's former deputy general counsel, doubts the administrator could succeed given the high bar the agency faces in complying with statutory deadlines. “If there is a clear and discrete mandatory duty by a date certain and the agency fails to comply with that duty they will almost certainly be found liable by the court,” he says.
Pruitt, the former Oklahoma attorney general who gained a national reputation by suing EPA over its rules before being tapped by President Donald Trump to run the agency, told Inside EPA in 2013 that he was concerned “sue-and-settle” was being used in an “abusive fashion” to approve regulations outside of the traditional process.
“The best antidote is to make sure it's not what we fear it is, the equivalent of the friendly lawsuit,” he said at the time. “That's something that, if it is occurring, it definitely needs to be addressed.”
Since being confirmed as administrator, he has renewed his pledges to end the practice. “We’re not going to have sue-and-settle, we’re not going to have consent decrees, we’re not going to lead that agency in a way that’s regulation-through-litigation,” he told the Conservative Political Action Conference Feb. 25. “We’re not going to bypass rulemaking. We’re going to do the work that Congress said we must do to advance those issues.”
But since being confirmed as administrator, the agency has already drawn new lawsuits from environmentalists seeking to enforce statutory deadlines, though so far none is likely to force the agency to craft major new rules.
For example, a coalition of environmental groups sued EPA in federal court in California last month, seeking to compel the agency to respond to its petition seeking an objection to a Title V permit modification that would allow the Chevron USA Z Steam plant in the San Joaquin Valley to build eight new natural gas steam generators.
The complaint in Association of Irritated Residents, et al. v. EPA charges the agency has failed to act within the 60-day statutory deadline.
Environmentalists in Washington and Oregon have also sued recently to enforce deadlines requiring EPA to respond to their petitions seeking strict new state water quality standards by a date certain. And other environmentalists have also sued to require EPA to respond to their petitions seeking strict stormwater controls in Maryland and California.
'Sweetheart Deals'
“Sue-and-settle” is a term that agency critics have long used to describe litigation routinely brought by environmentalists during the Obama administration to win what they blast as “sweetheart deals” that require EPA and other agencies to issue regulations.
But officials and environmentalists reject the term as “loaded” and say such suits are brought most often to force the agency to comply with missed statutory deadlines. Moreover, settlement of the suits usually does not result in the agency agreeing to issue a rule but to propose and take “final action,” which could include a decision to reject a regulatory determination.
And, they say, such settlements most often result from litigation where the agency has a non-discretionary duty to act, and that they give EPA significantly more flexibility than if a judge were to impose a remedy.
A second industry source says the agencies never agree to do anything substantive in a consent decree, which simply sets a deadline for a nondiscretionay action, such as EPA's duty to respond to Title V permit petitions within 60 days or its Clean Air Act requirement to review national ambient air quality standards every five years.
Additionally, the Government Accountability Office largely exonerated EPA in a 2015 report that examined seven environmental laws that allow for deadline suits, calling the impact on EPA's agenda “limited” as a result of legal settlements that commit it to rulemaking deadlines.
Nevertheless, critics have used a number of tactics to curb these types of settlements, and most loudly complain that they have been shut out of the process, often because courts find that industry parties lack standing to intervene.
To address this, lawmakers have introduced legislation to prevent “sue-and-settle” suits by bolstering third-party involvement in settlement talks as well as requiring more public input on the agreements.
Also GOP lawmakers have weighed -- but ultimately did not act on -- easing Clean Air Act rulemaking deadlinesand citizen suit provisions to curb these types of suits.
The second industry attorney says Pruitt will soon realize that he faces many mandatory deadlines for rulemakings and other actions, and that if the agency fails to meet them “then it is subject to lawsuits.” The source adds, “what sue-and settle lawsuits are about is simply enforcing statutory deadlines,” and if the government does not settle, “the court will settle for them, and the courts often set far tougher deadlines than the agencies would prefer. Pick your own poison. Do you want a tight deadline that you set, or a tighter one that the court sets?”
Missing a deadline “is not really an option because if you miss a deadline in a court order, that is punishable by contempt, and no agency head wants to be held in contempt of a federal order.”
An environmentalist agrees, noting that, “If a statutory deadline is codified in a consent decree, that binds the agency, and failure to comply with the consent decree and the deadline can result in contempt proceedings against Pruitt personally. And we've never faced a situation where an agency knowingly and willingly defies a consent decree for any reason.”
'A Great Case'
But the first industry source suggests that Pruitt may want to choose some strategic cases -- where he thinks a judge might be sympathetic, for example -- to try to establish case law that is more sympathetic to EPA.
“Pruitt is a lawyer and he understands if you don't settle, you're rolling the dice and you're going to get a deadline established by a judge.” However, if a judge appears sympathetic, “I might roll the dice and say, 'Yes we have a deadline but we have limited funds and we have to manage all these priorities and we need more time.' That would be great case law for you to create.”
The source says such efforts could be bolstered by a 2014 ruling by the D.C. Circuit, which backed EPA's discretion to prioritize rules for larger air pollution sources due to budget constraints.
In its unanimous ruling, the three-judge panel held in WildEarth Guardians v. EPA, et al. that EPA's justifications for rejecting the rulemaking petition seeking a new source performance standard to control methane and other pollutants from coal mines were reasonable under the Clean Air Act.
The source acknowledges the case may have limited precedential value because it was based on an “unreasonable delay” in responding to a rulemaking petition, rather than a strict mandatory statutory deadline. But it would nevertheless be helpful if Pruitt could extend that example to deadline suits.
However, Shenkman, the former EPA deputy counsel, tells Inside EPA in a Feb. 28 interview that it would be a stretch to convince a judge to ignore a statutory deadline based on agency discretion in resource allocation. “It's very difficult if not impossible to avoid liability in a deadline suit because both the [Administrative Procedure Act] and the judicial review provisions of the major environmental statutes like Clean Water Act and the Clean Air Act are very strict.”
He says arguments about agency resources and priorities “can come up in the context of what relief the court will order after having found the agency liable. And agencies of course can argue that in light of the finite resources that they have that they need a certain amount of time from the courts.”
But he says that “sometimes the courts will listen to that and sometimes the courts have very little patience for that, and will order a very fast deadline, which could then force the agencies to divert resources that may have been better used elsewhere.”
The second industry source adds another option for Pruitt to win some flexibility in such cases would be to ask intervenors to be directly involved in a settlement. “A lot of states complained they are completely cut out from negotiation and if states want to be involved or industry groups, they would move to [do so] and EPA could say, 'We're not going to have talks without them.'”
But this source, like the others, believes that Pruitt will ultimately come to understand that he will have to settle some deadline suits. If he took a case to court and got an unfavorable deadline, that decision could be appealed to a circuit court, but “that takes time” and may not be received well by the courts.
“EPA, to my knowledge, has never missed a court-imposed deadline because of the threat of someone going to jail.” The agency has gone into court at the last minute and asked for additional time, according to the source. --
https://insideepa.com/daily-news/pruitt-may-have-embrace-sue-and-settle-tactic-he-pledged-end
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Mar 8, 2017 | Environmental Defense Fund.
By Richard Denison,
I noted in a recent post EDF’s grave concerns about the Regulatory Accountability Act (RAA), which passed the House on January 11. A shorter but still very concerning version of it may soon be introduced in the Senate, modeled on last Congress’ Senate version of RAA. This bill would add dozens of burdensome and time-consuming hurdles to the rulemaking process, effectively crippling it and eliminating the health and safety protections rules are intended to provide. To get a feel for all of the requirements, see this dizzying RAA flow chart.
Among other things, the RAA would mandate multiple rounds of cost and impact analysis of a potentially unlimited number of regulatory alternatives; require that all major rules go through an entirely new pre-proposal step, adding months if not longer to the rulemaking process; generally require that agencies choose the lowest-cost regulatory option, regardless of whether or not it is the best option or even sufficient to meet a law’s requirements; and require lengthy and resource-intensive public hearings on many rules. To top all this off, the bill would require an agency to finalize a proposed rule within 2 years (subject to a 1-year extension) – a timeframe almost impossible to meet now without all of the additional requirements the Act would impose; if that deadline was not met, the agency would have to start over.
There is extreme irony in the advancement of the RAA in this Congress: Just last June, both houses of Congress passed – with overwhelming bipartisan support – major reforms to the obsolete Toxic Substances Control Act (TSCA). The Lautenberg Act removed from the original TSCA several major constraints on the rulemaking process that had so tied the hands of the Environmental Protection Agency (EPA) that it could not even restrict asbestos, a known carcinogen that kills more than 10,000 Americans every year. There was widespread agreement among industry and other stakeholders that those provisions of the old TSCA were detrimental or unnecessary to an efficient regulatory system and were undermining public and market confidence in the federal chemical safety system – not to mention failing to protect public health.
So here’s the irony: The RAA would impose those same knot-tying strictures that the Lautenberg Act just got rid of – and expand them to rulemakings undertaken by any federal agency. Let’s look at some of these crippling requirements, based on last Congress’s Senate version of the RAA:
COST-BENEFIT CONSIDERATIONS: As interpreted by the 5th Circuit in Corrosion Proof Fittings v. EPA, in order to regulate a chemical under the old TSCA, EPA had to conduct quantitative cost-benefit analysis (CBA) on a potentially limitless number of regulatory alternatives, regardless of whether information was available. This requirement, coupled with the “least burdensome” requirement discussed below, is widely regarded as the most fatal flaw of the old TSCA, imposing virtually impossible evidentiary and analytic burdens on EPA.
The Lautenberg Act fixed these problems: It requires EPA only to “consider and publish a statement on” the economic effects of a rule, and to do so only: i) “to the extent practicable,” ii) “based on reasonably available information,” and iii) “for the 1 or more primary alternatives considered by” EPA. It provides EPA with considerable discretion to limit the extent of analysis so that it is feasible.
Enter the RAA: EPA and other federal agencies would have to evaluate “any substantial alternatives or other responses identified by interested persons,” regardless of how many alternatives that would be and whether or not information on them is reasonably available. Literally anyone could tie an agency in knots merely by suggesting options that the agency would then have to analyze. For major or high-impact rules, formal CBA would be required to be conducted on each such alternative, with virtually no discretion afforded the agency based on availability of information or practicality, and the agency would have to demonstrate that the “benefits … justify the costs.”
LEAST-COST REQUIREMENT: The original TSCA required that EPA prove its selected regulatory requirement was the “least burdensome” of all possible options sufficient to address the problem. The Lautenberg Act struck this requirement entirely.
Yet under the RAA, for all major or high-impact rules, EPA and other agencies would be required generally to adopt the “least costly” rule and prove that no lower-cost option is sufficient; an exception is provided where EPA could demonstrate, through even more analysis, that the additional benefits – which could not count any ancillary benefits – of a more costly rule justify the additional costs. Yet, in contrast to costs, many benefits are very difficult to quantify or monetize and hence get short shrift in such cost-benefit analyses.
RULEMAKING STANDARD: As just noted, TSCA originally required that EPA’s regulation to address an identified risk protect adequately against such risk using the “least burdensome requirements.” It allowed a rule that did not actually eliminate the risk if the rule was deemed too costly. A key reform made by the Lautenberg Act is that it precludes EPA from adopting a rule that does not eliminate an identified risk, which is to be determined without consideration of cost; then, in regulating such risk, EPA must consider costs – but only in deciding among different regulatory options each of which is sufficiently protective. Moreover, these cost factors are only required to be considered, and EPA is not required to prove that an option meets a specific test (e.g., lowest-cost).
The RAA only generally indicates that a rule is to “meet relevant statutory objectives” – a vague term that does not require that a rule be sufficient to meet all requirements of the law that mandates or authorizes it. In contrast, the bill’s language on cost requirements does not make clear that a rule not meeting a health-based standard would not be allowed.
REQUESTS FOR HEARINGS: Under the old TSCA, any person could request EPA to hold a public hearing on any rule. The Lautenberg Act struck this provision as unnecessary and overly time- and resource-intensive. It was struck based on agreement among stakeholders that hearings were not needed and would make it impossible for EPA to meet the new law’s rulemaking deadlines.
Under the RAA, any person would be able to request a hearing on any major or high-impact rule, other than a rule “required by law” that is not a high-impact rule. An agency would generally have to grant the request if any factual issue is in dispute, which is nearly always the case at some level. Under this approach, any entity that wanted to drag out and obstruct a rule would have a ready opportunity to do so.
DEADLINES: The old TSCA imposed no deadlines on EPA to identify or take action to address unreasonable chemical risks. The Lautenberg Act imposes judicially enforceable deadlines on EPA’s proposal and finalization of risk management rules. Critically, however, failure to meet a deadline does not relieve EPA of its obligation to complete the rulemaking.
The RAA perverts the very accountability that deadlines under the new TSCA and most federal statutes are intended to provide. If an agency did not complete a rulemaking with 2 years of proposal (subject to a 1-year extension), the rule would be voided and the agency would have to start over – further delaying needed action to protect health or achieve a law’s key objectives. This “reverse deadline” would apply to all rules. Two years is highly ambitious to meet even under current rulemaking procedures, and agencies have rarely done so. Coupled with all of the new procedural, analytic and evidentiary hurdles to rulemaking imposed by RAA, this deadline would be virtually impossible to meet and would mean virtually no regulations of any substance could be finalized.
Less than a year after Congress overwhelmingly adopted the Lautenberg Act – the first major federal environmental legislation enacted in over two decades – some in Congress are now threatening to impose across all of government the same paralyzing mandates that were just removed from the original TSCA by passage of the Lautenberg Act.
Lest anyone think I’m suggesting simply exempting the Lautenberg Act from the RAA, let me be clear that is no solution at all. Congress passed the Lautenberg Act in order to restore public and market confidence in a key element of the federal safety net. This step was also acknowledged as necessary to provide the business community with the regulatory certainty it needs to operate. These are needs that cut across the entire federal landscape.
The very real threats – to public health, to our communities and to our environment – posed by the RAA suggests some in Congress have very short memories.
http://blogs.edf.org/health/2017/03/08/congress-just-fixed-tsca-yet-is-now-gearing-up-to-re-impose-the-worst-flaws-of-the-old-law-across-the-entire-federal-government/
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(ACC Mentioned) Architects, Chemists Spar Over Antimicrobial Building Products
Mar 8, 2017 | Construction Dive
By Chris Wood
Dive Brief:
The American Chemistry Council has criticized a white paper published by global architecture firm Perkins+Will on the risks related to the use of antimicrobial building products in surface and other finish applications, according to Architect.
The paper noted that that widespread use of antimicrobials could lead to resistant superbugs, and that building products containing such agents — including boric acid, formaldehyde and silver nanoparticles — present a health hazard and should be avoided.
The ACC responded to the paper, saying that antimicrobial agents are primarily used as building-product preservatives to increase material longevity and have an established safe-use history. Suzanne Drake, co-director of Perkins+Will's Material Performance Lab and co-author of the paper, acknowledged their use as preservatives but said the firm was adding antimicrobial products to its Precautionary List.
Dive Insight:
Other substances on Perkins+Will's list include arsenic, lead, mercury, phthalates and volatile organic compounds. Such material ingredients can be a challenge to avoid, however, due to their prevalence in existing building products and systems.
It will likely take an uptick in the number of specifiers and manufacturers adhering to lists like Perkins+Will's to make a substantial dent in the global antimicrobial coatings market, pegged by Glen Allen, VA–based n-tech Research to hit $3.3 billion by 2020. Similar indexes include one for chemicals banned for use in products that seek to become certified by the Cradle to Cradle Products Innovation Institute.
Coating preservatives might one day be unnecessary, if research into living construction materials by the Defense Advanced Research Projects Agency pays off. As part of its Engineered Living Materials program, DARPA is investigating methods for self-growing and self-healing building products that rely on microorganisms to create building materials such as bio-cement and concrete.
http://www.constructiondive.com/news/architects-chemists-spar-over-antimicrobial-building-products/437676/
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Titanium Dioxide Nanoparticles Can Disturb Digestion, Research Shows
Mar 9, 2017 | Chemical Watch
By Philip Lightowlers
US researchers have found that titanium dioxide nanoparticles can disturb nutrient absorption in gut cellular models. The findings add to concerns over recent evidence that they can cross the gut barrier and upset the immune system, and may have carcinogenic properties through inhalation.
The scientists from Binghampton University, New York State, and the US Department of Agriculture, Ithaca, exposed in vitro small intestinal epithelium cells to realistic concentrations of the particles, measuring 30 nanometres in diameter.
Particles of this size are present in food additives such as E171.
The aim was to examine their effects on the function of the epithelium, which is an important barrier that must also facilitate the absorption of nutrients. Short-term and chronic five-day tests were conducted.
The results, published in the journal NanoImpact, showed that the absorption of iron, zinc and fatty acids were reduced following chronic exposure. The nanoparticles had the effect of reducing absorptive microvilli on the cell surface – tiny finger-like projections which increase cell membrane area.
Gene expression of the cells’ transporter proteins was also affected, the authors note, suggesting the cells are working to regulate the transport mechanisms disturbed by the particles.
https://chemicalwatch.com/54018/titanium-dioxide-nanoparticles-can-disturb-digestion-research-shows
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(ACC Mentioned) ACC Welcomes ExxonMobil Plans
Mar 9, 2017 | Hydrocarbon Engineering
By Callum O'Reilly
The American Chemistry Council (ACC) has issued a statement applauding ExxonMobil Corp.’s announcement that it will be expanding its manufacturing capacity along the US Gulf Coast.
ExxonMobil’s Chairman and CEO, Darren Woods, recently confirmed that the company plans to invest US$20 billion over a 10-year period to take advantage of the US energy revolution.
Cal Dooley, ACC President and CEO, said: “We are thrilled to hear of ExxonMobil’s plans to expand its manufacturing capacity along the Gulf Coast […] Its ‘Growing the Gulf’ initiative shows the decisive role of American energy in spurring a US manufacturing renaissance, with the chemistry industry helping to lead the way.
“Plentiful supplies of energy and feedstock have made the US chemical industry one of the world’s lowest-cost producers […] Our competitive advantage has led to historic growth, with much of the new investment geared toward export markets for chemistry and plastics products.”
ExxonMobil’s ‘Growing the Gulf’ expansion programme consists of 11 major chemical, refining, lubricant and LNG projects at proposed new and existing facilities along the Texas and Louisiana coasts.
https://www.hydrocarbonengineering.com/petrochemicals/09032017/acc-welcomes-exxonmobil-plans/
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Congressman-Physicist Warns of Threat to U.S. Energy Hegemony
Mar 9, 2017 | BNA Daily Environment Report
By Brian Dabbs
Insufficient funding for the Energy Department and EPA will jeopardize U.S. global hegemony in energy science, and green initiatives are particularly vulnerable to budget cuts in the coming months, Rep. Bill Foster (D-Ill.), Congress’ only physicist, told House appropriators.
Congressional Republicans will likely target environmental and energy efficiency research in upcoming proposals, Foster told Bloomberg BNA in an interview following his March 8 testimony. In recent years, the EPA has moved forward a broad range of energy efficiency rules and guidelines. Those cuts could reverse decades of critical scientific research, he added.
“There is a fundamental asymmetry between the time it takes to build up a program, which can take decades in scientific areas, and the time it takes destroy, which can be a single budget cycle,” Foster said in the interview. Foster pointed to the Argonne National Laboratory's Advanced Photon Source, which is operated by the University of Chicago on behalf of the Energy Department, as a project that necessitates additional funding.
That portion of the laboratory develops solar shingles and diesel engines that emit less pollution, Foster said.
Foster urged lawmakers to safeguard the Energy Department's Office of Science. He told Bloomberg BNA that newly confirmed Energy Secretary Rick Perry “is just now engaging, and the real test will be in the budget passback"—the process in which the Office of Management and Budget gives agencies a target budget toward the end of the year.
“Then we'll see what the real budget priorities are,” Foster said.
The White House is aiming to propose a budget by March 17, and lawmakers then will have to scramble to extend fiscal year 2017 funding beyond the late-April expiration of temporary funding. A larger budget fight looms over fiscal year 2018 appropriations.
According to leaked materials, the White House is considering a roughly 25 percent cut to the Environmental Protection Agency's budget and a 20 percent cut to the agency's staff.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=106790577&vname=dennotallissues&fn=106790577&jd=106790577
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Zinke Vows Support On Energy Projects, Infrastructure
Mar 9, 2017 | E&E Daily
By Corbin Hiar and Cecelia Smith-Schoenwalder
Interior Secretary Ryan Zinke pledged yesterday that the Trump administration would work to support tribal energy development.
In his first return to Capitol Hill since joining President Trump's Cabinet, the former Montana congressman told the Senate Indian Affairs Committee that the Interior Department "has not always stood shoulder to shoulder with many of the tribal communities for which it is tasked to fight."
"The administration has an opportunity," he said, "to foster a period of economic productivity through improved infrastructure and expanded access to an all-of-the-above energy development approach."
Zinke had asked to be seated on a panel with tribal leaders, a symbolic gesture that also limited the questions he could receive from lawmakers. Just over an hour into the hearing, Zinke left for a White House meeting with Trump and Alaska's Republican senators (see related story).
But before he left the packed hearing room, Zinke promised his fellow Montanan, Sen. Steve Daines (R), that he would urge the Army Corps of Engineers to quickly permit coal export terminals supported by Montana's Crow Nation and other mining-dependent tribes.
"My commitment to you is we will work hard to ensure that sovereignty means something," Zinke said. "It's up to the tribe. If the tribe wants to export their product — whatever that is — we should not stand in the way."
Zinke's response glossed divisions among tribes over coal export terminals. The Lummi Nation in Washington state, for example, filed the petition that blocked the Gateway Pacific Terminal, which was backed by the Crow (E&E Daily, May 10, 2016).
The secretary later pledged to support Sen. Al Franken's bid to find money for the tribal energy loan guarantee program. Created as part of the Energy Policy Act of 2005, the program to provide loans for energy development on Indian lands was never funded, the Minnesota Democrat said.
"Senator, I would love to work with you on it," Zinke replied. "It's economic development. And without an economy, then nothing else really matters."
He added, "Those loan programs that can provide a path for energy, in whatever form ... I think that's an important part of it."
In response to questions about tribal opposition to the Dakota Access oil pipeline and drilling in New Mexico's Chaco Canyon area, Zinke also acknowledged the need to improve consultation with tribes around energy development.
Witnesses from Indian Country laid out their priorities for the Trump administration as well. Those included support for developing cleaner burning coal, protecting wildlife and ancestral lands, and increasing Interior staffing levels.
Crow Chairman Alvin Not Afraid indicated that his tribe started diversifying its energy production after regulations put in place by the Obama administration, but since the Indian coal production tax credit ceased at the end of 2016, more funds are "sorely" needed.
"By leveling the playing field for developing clean Crow coal for domestic markets, exports and coal conversion, we firmly believe we can help ourselves while simultaneously meeting national energy goals — achieving energy independence, securing a domestic supply of valuable energy, and reducing the country's dependence on foreign oil," Not Afraid said in his written testimony.
Not Afraid also presented the committee with a copy of a treaty signed by his tribe and others opposing the Fish and Wildlife Service's plan to remove federal protections for grizzly bears.
Paul Torres, chairman of the All Pueblo Council of Governors, spoke in favor of keeping Utah's Bears Ears National Monument under federal control.
During his confirmation hearing, Zinke suggested that Trump may take the unprecedented step of attempting to undo the monument, which was established by his predecessor under authorities granted by the Antiquities Act of 1906 (E&E Daily, Jan. 18).
Torres went on to express concern about the effect that the federal hiring freeze could have on the Bureau of Indian Affairs, which he said already doesn't have enough employees to fulfill its duties to tribal nations.
"In a matter of just a few years, you're not going to have enough employees left, and you're not going to get anything done," the Pueblo chairman said, referring to workers who had also planned to retire soon. "It's not good to have a freeze on the programs that affect Indian tribes."
http://www.eenews.net/eedaily/2017/03/09/stories/1060051184
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Trump Order On Obama’s Climate Rule ‘Unlikely’ This Week
Mar 8, 2017 | The Hill - E2 Wire
By Timothy Cama
President Trump’s executive order to begin repealing former President Barack Obama’s main climate change rule is "unlikely" to be signed this week, according to a White House official.
The official told Greenwire that the order, which had been expected this week, now “may be pushed to next week." The official did not provide further details or timing information, according to the report.
The order is expected to instruct Environmental Protection Agency (EPA) Administrator Scott Pruitt to start the process of repealing the Clean Power Plan, fulfilling a key campaign promise Trump made.
That Obama-administration rule ordered a 32 percent cut in greenhouse gas emissions from the power sector, through individual cuts assigned to states. It has been on hold for more than a year, thanks to a Supreme Court stay.
Trump’s order is also expected to instruct Interior Secretary Ryan Zinke to undo the Obama administration’s moratorium on new coal mining leases on federal land.
That moratorium was put in place early last year to allow the Interior Department to evaluate the coal program and see if it needed to charge higher prices to account for the climate change caused by the coal.
http://thehill.com/policy/energy-environment/322994-trump-order-on-obamas-climate-rule-unlikely-this-week
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A Father of Fracking Seeks to Emulate U.S. Shale Boom in Alaska
Mar 9, 2017 | Bloomberg Markets
By Alex Nussbaum
Shipping water, sand, chemicals to the Arctic a huge hurdle
Success could aid a flagging industry and a state’s economy
A pioneer of the U.S. shale revolution wants to take fracking to America’s final frontier. Success could help revive Alaska’s flagging oil fortunes.
Paul Basinski, the geologist who helped discover the Eagle Ford basin in Texas, is part of a fledgling effort on Alaska’s North Slope to emulate the shale boom that reinvigorated production in the rest of the U.S. His venture, Project Icewine, has gained rights to 700,000 acres inside the Arctic Circle and says they could hold 3.6 billion barrels of oil, rivaling the legendary Eagle Ford.
While the potential is huge, the difficulty of shipping millions of gallons of water, sand and chemicals -- the ingredients used in fracking -- to one of the most remote areas on earth is nothing short of monumental. At stake is an Alaskan industry that’s seen output tumble from 2.1 million barrels a day in 1988 to 520,000 in 2016 as reserves dwindled and explorers sought cheaper supplies in shale fields to the south.
“The oil is there,” said Basinski, founder and chief executive officer at Houston-based Burgundy Xploration LLC, in an interview. “Now it’s a question of how quickly we can get it to flow and whether we can get the economics to work." One exploratory well has been drilled, he said, and a second is planned by mid year.
The future of U.S. oil exploration has been among the hot topics as the industry’s biggest names gathered in Houston this week for the annual CERAWeek by IHS Markitconference. Alaska Senator Daniel Sullivan spoke during the meeting’s opening session and Senator Lisa Murkowski is set to help close it with comments on Friday.Dwindling Crude
The dwindling volume of crude produced in the state has combined with a rout in oil prices over the last two years to undercut Alaska’s once-booming economy. When oil topped $100 a barrel in 2014, Alaska took in $5.7 billion in petroleum taxes and royalties for the fiscal year that ended that June, covering most of its budget. For fiscal 2017, the take is projected at $1.6 billion, a 72 percent drop.
At the same time, the decline has fed worries that the 40-year-old Trans-Alaska Pipeline System, the North Slope’s 800-mile link to global oil markets, could become too expensive to operate by the next decade.
In hydraulic fracturing, or fracking, water, sand and chemicals are shot at high pressure into shale rock to release the oil and natural gas trapped inside. Drillers create cracks within shale and tap them with horizontal wells that can run for thousands of feet underground. In Alaska, the practice has been slow to take off due to the higher costs of working in the Arctic, where drilling can cost three times as much as in the lower 48 states.
Until recently, companies also didn’t have underground imaging technology good enough to peer beneath the Arctic permafrost and pinpoint shale reserves below.3-D Imaging
Now that’s changing. State tax breaks passed earlier this decade have encouraged explorers to give shale a look, and 3-D seismic imaging technology allows them to make a more educated guess about what’s below.
To be sure, shale isn’t the only hope for the state’s oil industry. Icewine is part of a wave of new exploration on the North Slope.
In October, closely held Caelus Energy LLC said it had found at least 2 billion barrels of recoverable oil about 120 miles to the west of Prudhoe Bay on the Arctic Coast. Armstrong Oil & Gas Co., another closely held company, announced a half-billion barrel discovery the next month. ConocoPhillips, the state’s biggest oil producer, said in January that it was developing a new field that may hold as much as 300,000 barrels.
Caelus has turned to fracking to boost production in non-shale wells on the slope as well.
“This is the oiliest place we’ve ever worked," Caelus CEO Jim Musselman said in an interview. “These are not world-class rocks so we’ve had to turn to more modern techniques. The low-hanging fruit has been plucked so we’re having to go a little higher in the tree."
Burgundy Xploration, Basinski’s closely held company, has teamed with Australia-based 88 Energy Ltd. to test shale on 690,000 acres of state land south of Prudhoe Bay. The land sits over three underground bands of shale, from 3,000 to 20,000 feet below ground, that are the source rocks for the huge conventional oilfields to the north.
The companies’ first well, Icewine 1, confirmed the presence of petroleum in the shale and found a geology that should be conducive to fracking, Basinski said. Their second well, due to be drilled in the first half of 2017, will fracture a small section of that range and see how readily the oil flows.Unanswered Question
“We don’t know what we have yet," said Michael McFarlane, Burgundy’s president. “We know that the shale has sourced a tremendous amount of oil, but is it commercial? That’s a question that we haven’t answered yet."
Basinski was a geologist at Houston-based Burlington Resources Inc. in the early 2000s, when he began pushing to test the Eagle Ford shale zone in southern Texas. The rocks were long thought to contain oil, but conventional wisdom held the geology wasn’t suitable for fracking, Basinski, 62, recalled in an interview.
Basinski looked at the data and thought differently. When Conoco bought Burlington in 2006 for $36 billion, it inherited the geologist’s quixotic quest as well.
“I just looked at a map and saw a lot of white space in Texas and asked a stupid question: what is this?" he said. “I was looking for the opposite of what everybody else was looking for."Prolific Play
Conoco would eventually snap up thousands of acres in the area at rock-bottom prices, before the Eagle Ford’s productivity was fully known. By 2015, the Eagle Ford was the most prolific shale play in the U.S., producing 565 million barrels, according to the U.S. Energy Department. North Dakota’s Bakken shale was second with 421 million barrels.
Basinski left Conoco in 2011 to pursue unconventional plays elsewhere in the globe. Alaska seemed a natural target -- huge reservoirs like Prudhoe Bay had to have source rocks somewhere nearby, he figured.
“There’s a lot of potential," said David Houseknecht, a senior research geologist at the U.S. Geological Survey who studies Alaskan oil. “The big ’but’ is that you can only put so many wells within a stone’s throw of the pipeline. Even if you assume the kind of production rate that the Bakken or Eagle Ford have given you, it’s going to be a challenge to make it economically viable."
In a 2012 assessment, the USGS said North Slope shale may hold anywhere from zero to 2 billion barrels of oil recoverable with current technologies. The report emphasized “the large range of uncertainty" associated with the area.
An analysis of well results by consultant DeGolyer & MacNaughton found the Icewine land may sit atop the equivalent of 1.4 billion barrels of oil, 88 Energy said in an investor presentation last month. The company said its own modeling suggests as much as 3.6 billion barrels may be available. The Eagle Ford that Basinski helped develop, by comparison, has about 4.3 billion barrels, according to Energy Department estimates.
https://www.bloomberg.com/news/articles/2017-03-09/a-father-of-fracking-seeks-to-emulate-u-s-shale-boom-in-alaska
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Greens Demand Emails From EPA, Trump Transition Team
Mar 9, 2017 | E&E News PM
By Hannah Hess
A Freedom of Information Act request filed yesterday with U.S. EPA seeks documents pertaining to a controversial decision related to methane emissions from the oil and gas industry, including communications between Trump's transition team and lobbyists.
Two environmental groups, the Environmental Defense Fund and Natural Resources Defense Council, have partnered on an effort to find out more about what prompted EPA's Feb. 2 withdrawal of an Obama-era request for information about reducing greenhouse gas emissions (Energywire, March 3).
NRDC wants records of any communications between EPA — including members of the transition, landing or beachhead teams — and industry groups or lobbyists related to the Trump administration's apparent decision to suspend and possibly terminate development of methane standards for existing sources.
NRDC senior attorney Meleah Geertsma questioned whether Administrator Scott Pruitt acted at the urging of fossil fuel companies. "We may find additional evidence of undue influence held by climate-denying think tanks, politicians, and industrial interests," Geertsma said.
EDF's request also seeks records related to the decision and any responses to the survey already received by EPA.
EPA did not respond to questions on the matter this afternoon.
One day after 11 Republican state leaders wrote Pruitt, urging EPA to suspend the effort, Pruitt withdrew the request (Energywire, March 2).
Industry groups cheered the news as relief from a burdensome query for excessive data.
Opponents criticized the agency's "willful blindness" to emissions of the potent heat-trapping gas (Greenwire, March 3).
Top Democrats on the House Natural Resources Committee piled on today, criticizing Pruitt for doing a favor to industry despite the importance of the information to climate and air quality policy.
"Apparently we can't ask the oil and gas industry how much methane it's pumping into the air and where it's happening because that might generate answers that lead to better policy," Rep. Raúl Grijalva (D-Ariz.) said.
The Obama administration set a goal of reducing methane emissions from the oil and gas sector between 40 and 45 percent compared with 2012 levels by 2025. According to EPA's estimate, methane is a greenhouse gas that's upward of 25 times more potent than carbon dioxide.
Rep. Alan Lowenthal (D-Calif.) noted the decision came only "days after President Trump promised Congress he would 'promote clean air and clear water,'" and he accused the Pruitt-led EPA of "shirking its responsibility to protect our air."
Grijalva and Lowenthal sent a letter to Pruitt urging him to reissue the request.
"Withdrawing this common-sense and inexpensive data-gathering exercise at the behest of a few states simply because it takes climate change seriously is irresponsible and counterproductive," they wrote.
Pruitt's cancellation of the request came about a month after the House passed a resolution through the Congressional Review Act to wipe out the Bureau of Land Management's methane waste rule, which Democrats pushed to save (E&E Daily, Feb. 2).
Senate GOP leaders are working to bring the CRA resolution to the floor (E&E Daily, March 8).
http://www.eenews.net/eenewspm/2017/03/08/stories/1060051157
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(ACC Mentioned) Industry Asks Pruitt To 'Rescind' Obama EPA's RMP Rule Pending Litigation
Mar 8, 2017 | Inside EPA
By Dave Reynolds
A broad coalition of petrochemical, power and other industry groups is petitioning EPA Administrator Scott Pruitt to “reconsider and rescind” the Obama administration's final rule overhauling the agency's industrial facility accident prevention program even as the groups prepare to file litigation that they hope will lead to the rule's elimination.
The Feb. 28 petition to Pruitt comes even as Congress is considering a set of disapproval resolutions that would overturn the rule, though industry officials have said administrative and litigation efforts are needed to overturn the rule because Congress may not get to the disapproval resolutions.
Groups including the American Chemistry Council (ACC), American Petroleum Institute, National Association of Manufacturers and Utility Air Regulatory Group argue in their “Petition for Reconsideration and Stay” that EPA's Jan. 13 final rule overhauling its Risk Management Plan (RMP) facility accident prevention program contains numerous flaws and deficiencies.
“[T]he final rule undermines safety, creates significant security risks, and does nothing to further prevent criminal acts that threaten facilities, such as the sabotage that led to the tragedy in West, TX,” the groups say. “An administrative stay is appropriate and necessary while the Agency considers and addresses the numerous flaws in the Final Rule.”
In urging Pruitt to rescind the RMP rule, the industry groups say that they intend to file a petition for review of the regulation in the U.S. Court of Appeals for the District of Columbia Circuit, and are likely to prevail given the rule's “numerous procedural and substantive flaws.”
The groups are also seeking a stay of the current March 21 effective date.
EPA's Jan. 13 final rule overhauls its RMP facility accident prevention program with new requirements for auditing, hazard analysis and disclosure of facility data. EPA issued the rule under former President Barack Obama's August 2013 executive order (EO) on improving the safety and security of industrial plants.
Obama issued the order in response to an explosion at a fertilizer plant in West, TX, that killed 15 people, including first responders. While the explosion and subsequent EO triggered EPA's overhaul of its RMP accident prevention program, authorized under the Clean Air Act, investigators later blamed arson for the fire that led to the explosion.
Industry's Criticisms
Industry officials have criticized the RMP rule as imposing unnecessary new requirements without clear benefit. They have especially faulted as costly and unnecessary new requirements that certain facilities analyze whether safer technologies would improve safety, conduct independent audits, and release data to first responders and the public.
Industry officials are supporting the pending Congressional Review Act (CRA) resolution to undo the final rule, though they have also said they would press the Trump administration to curtail the rule. Industry expected to find a sympathetic ear in Pruitt given that as Oklahoma's attorney general he opposed the proposed rule's requirements for disclosure of facility data.
In petitioning Pruitt to rescind the rule, the industry coalition argues that EPA's underlying RMP rule reduced risks, noting that EPA data show a significant decline in the rate of accidental releases over the past 20 years. The groups also fault EPA for overhauling its accident prevention regulation in response to an explosion triggered by an intentionally set fire.
Additionally, they say that EPA failed to follow proper procedure in issuing the rule, arguing that the agency's final rule introduced new provisions and rationales that companies did not have an opportunity to comment on, and that were not a logical outgrowth of the proposed version.
The groups seek an administrative stay of the rule's effective date, noting that the Clean Air Act allows for a three month stay pending reconsideration, and that the Administrative Procedure Act allows for a longer stay pending the outcome of a petition for review that the groups plan to file in the D.C. Circuit. The groups ask for both stays.
“The Coalition is likely to prevail on the merits of its challenges to the Final Rule due to its numerous procedural and substantive flaws,” the groups say in the petition for reconsideration and stay. “Staying the Final Rule will prevent irreparable harm to the Coalition's member companies and will serve the public interest.”
ACC has already requested that EPA postpone the rule's effective date. In a Feb. 6 letter to former Acting EPA Administrator Catherine McCabe, ACC sought a delay of at least 60 days to allow time for consideration of industry concerns and to allow Congress time to weigh the pending CRA resolution.
https://insideepa.com/daily-news/industry-asks-pruitt-rescind-obama-epas-rmp-rule-pending-litigation
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New Suit Faults SoCalGas for Natural Gas Blowout
Mar 9, 2017 | BNA Daily Environment Report
By Steven M. Sellers
Dozens of California residents want damages from Southern California Gas Co. for a gas injection well blowout that released toxic gases for months, according to a suit filed March 6 (Sarkisyan v. S. Calif. Gas Co., Cal. Super. Ct., No. BC652788, filed 3/6/17).
Residents of Porter Ranch, Calif., say the vapors from the Aliso Canyon Natural Gas Facility caused them neurological and other ailments, according to the complaint filed in the California Superior Court, Los Angeles County.
The case is the latest against SoCalGas and Sempra Energy, its parent company, over the 2015 blowout. A spate of suits were filed after the incident, and SoCalGas agreed in February to an $8.5 million settlement of claims brought by a California air quality agency.
SoCalGas piped in natural gas and then injected it into the reservoir through more than 100 injection wells for later distribution, according to the complaint. The four-month-long leak from the massive underground natural gas storage facility—one of the largest in the nation—required evacuations of neighboring communities.
Nazeli Sarkisyan and other plaintiffs contend the blowout was caused by the companies’ negligence, and they also assert public nuisance, trespass, strict liability and other claims.
They say that as many as 115 wells are near two of California's “most active fault lines,” and some had been subject to major earthquakes, increasing the likelihood of leaks.
The companies’ failure to plan for a catastrophic well failure contributed to the prolonged release of gas, leaving residents with diminished property values and a “cloud of uncertainty and fear,” the plaintiffs say.
SoCalGas didn't immediately respond to a request for comment March 8.
The law offices of McNicholas & McNicholas represent the plaintiffs.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=106790583&vname=dennotallissues&fn=106790583&jd=106790583
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National U.S. Carbon Price Inevitable: CERAWeek Panel
Mar 9, 2017 | BNA Daily Environment Report
By Nushin Huq
The U.S. will eventually need a national carbon-pricing policy—though it may be a long, bumpy road to get there.
That was the consensus of a group of panelists March 8 at CERAWeek by IHS Markit, the energy industry's yearly get-together in Houston. The panelists noted that robust carbon-pricing activity is occurring globally and in some states, even as President Donald Trump has spoken out against a carbon tax.
Carbon pricing “may start on the state level and expand,” said Richard Newell, president and chief executive officer of Resources for the Future. “It might be a regulatory thread that leads to it. How it unfolds is unclear.”
China will announce its carbon-trading plan later this year and will probably become the world's largest emissions trading program, said Dirk Forrister, president and chief executive officer of the International Emissions Trading Association. At the same time, the European Union is working on reforms to its emissions-trading system. Within the United States, California and New England continue to run their own markets, while other states are debating whether to price carbon.
“There are carbon taxes, mostly in smaller jurisdictions, but that is definitely taking hold as well,” Forrister said. “[Carbon pricing] is definitely showing forward progression this year.”
Why Price Carbon?
Carbon pricing is the best way to reduce emissions while incentivizing technology and innovation, said Arlene Strom, vice president of sustainability and communications at Suncorp Energy Inc. in Canada.
Canada initiated a carbon tax this year. While collected on the federal level, the money has been allocated back to individual provinces. For oil-rich Alberta, that could equal billions of dollars in revenue, Strom said.
“A properly-designed carbon price can be designed to protect for competitiveness,” she said. “So it shouldn't be a barrier to be implementing a carbon price.”
Emissions-trading programs—often called “cap and trade"—and carbon taxes are two ways regulators can price carbon, but each has its own limitations, Newell said. A carbon tax sets a clear price on carbon, but it's unclear on the amount of the emissions reductions that will occur at that price. In cap-and-trade programs, the emission cap or target is set, but the clearing price is unknown. This results in price uncertainty, something important for investments.
But he said that each problem can be addressed. “The question is, can we design a cap-and-trade system that happens to have the price stability of a carbon tax, or design a carbon tax to have the emissions certainty of a cap-and-trade?” Newell said. “If you want price stability in the cap-and-trade system, you can set up a mechanism to add or take out allowances.”
The European Union is working to create a reserve that will allow it to take allocations out of the system or put them back in to prevent price shocks.
United States’ Experience
A group of prominent Republicans and business leaders, including former Treasury Secretaries Hank Paulson and James Baker, met with some of Trump's top advisers last month to push a plan to tax carbon dioxide in exchange for lifting a slew of environmental regulations. Both Trump and a majority of the House of Representatives have come out against a carbon tax in the past year, and Trump has pledged to do away with environmental regulations limiting emissions of carbon dioxide and other greenhouse gases that exacerbate climate change.
Opponents of the Paulson-Baker proposal contend it would shrink economic productivity and subvert consumer choice while increasing the deficit.
In the meantime, emissions-trading markets in the U.S. have been regional, with one In California and one in New England. In Massachusetts, state lawmakers have debated making it the first state with a carbon tax in the U.S. Nearby Rhode Island and New Hampshire also are floating the idea, and after a ballot initiative failed in November, Washington state is still considering a tax.
Panelists at the CERAWeek conference concluded that a national U.S. carbon-pricing mechanism is the only cost-effective way for companies to reduce emissions.
“We're spending hundreds of dollars per ton on certain types of emission reductions, and we're not spending anything on other very cost-effective emission reductions,” Newell said. “This is not a recipe for long-term cost effectiveness dealing with this problem in a way that is cost-effective and economically consistent.”
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=106790582&vname=dennotallissues&fn=106790582&jd=106790582
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EAB Suit Claims Unlawful EPA 'Rewriting' Of Waste Combustor MACT Rule
Mar 8, 2017 | Inside EPA
By Stuart Parker
A waste disposal company's pending Environmental Appeals Board (EAB) suit accuses EPA Region 5 of unlawfully “rewriting” the agency's hazardous waste combustor (HWC) maximum achievable control technology (MACT) air toxics rule, saying an air permit the region issued sets stricter monitoring mandates than the MACT requires.
The waste company warns that the stricter requirements in the permit could set an adverse precedent requiring other HWCs to meet more onerous mandates than the MACT if EAB upholds it.
EPA is due to file a substantive response March 21 to the lawsuit filed Feb. 15 by Veolia ES Technical Solutions, LLC, which challenges a Jan. 18 Clean Air Act Title V operating permit issued for its three Sauget, IL, incinerators by EPA Region 5.
The region, which covers Illinois and five other Midwest states, took over issuance of air permits for the company following decades of litigation from environmentalists who said the Illinois Environmental Protection Agency failed to use its delegated Clean Air Act authority to issue the necessary permits. But Veolia now claims that the permit that the Obama administration issued in its final days is flawed because it imposes substantially stricter monitoring requirements than the MACT.
Veolia says the permit does this by requiring continuous emissions monitoring (CEM) for emissions of some metals from the facility's HWCs, in effect redefining the rule in contravention of procedures established under administrative law. The permit “rewrites the HWC MACT without proper rulemaking.” Veolia says.
EPA's MACT, which applies nationwide, does not require CEM for metals, the company argues. Instead, it says that companies operating HWCs only need to run “comprehensive performance tests” (CPTs) and other confirmatory tests to ensure they are complying with the air toxics rule. The company wants the board to declare that Region 5's permit is unlawful, and is seeking a stay of the permit pending resolution of the case.
Instead of CEM, Veolia says that the MACT sets operating parameter limits (OPLs), which are technical specifications that govern the operation of HWCs to assure compliance with emissions limits -- but do not actually measure emissions. The rule requires that regulated units use CPTs to establish these limits, according to the lawsuit.
'Bedrock Principle'
“Notwithstanding this bedrock principle of the HWC MACT, Region 5 has significantly undercut the core methodology of developing and complying with OPLs by forcing Veolia to install costly (over $2 million) and unverified multi-metals monitors on all three of its incineration units in an after-the-fact effort to modify Veolia’s OPLs for metals,” Veolia says, arguing that this is at odds with the MACT's requirements.
The company claims that the region lacks the legal power or factual basis to require CEM because neither the MACT nor Clean Air Act Title V -- which requires industrial sources of pollution to obtain an air permit to operate -- give the region any authority to force Veolia to buy and install the monitors. “Region 5’s permitting decision to require them is based on unproven, unfounded and erroneous allegations of non-compliance by Veolia,” the company claims.
Signaling the potential broader precedent that the case could set, Veolia warns that the permit if upheld by EAB could allow other permit writers to impose stricter terms than the MACT requires.
“[B]y undermining and then redefining how the core compliance mechanism of the HWC MACT functions, Region 5 is impermissibly seeking to create new substantive requirements that would affect all HWCs,” according to the company. “This is far beyond the scope of Region 5’s case-by-case authority” under the Clean Air Act, and “can only be done through broader rulemaking by EPA” under the air law's section 112 air toxics program.
EPA Region 5 in a March 3 response to the petition says it opposes any blanket stay of the entire permit, when only stay of specific provisions at issue would be required.
The region says, “only those few sections of the permit” relating to Veolia's complaints are automatically stayed during EAB review. “Even if the alleged notice and comment defects are proven true (and the Region strongly believes that they will not be proven true), those defects do not automatically 'infect' the entire Title V permitting decision, as Petitioner asserts,” according to the response.
https://insideepa.com/daily-news/eab-suit-claims-unlawful-epa-rewriting-waste-combustor-mact-rule
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D.C. Circuit Rejects Brick MACT Suit Briefing Extension
Mar 8, 2017 | Inside EPA
The U.S. Court of Appeals for the District of Columbia Circuit has rejected brick producers' motion to extend briefing deadlines in their suit over what they say is EPA's excessively stringent air toxics rule setting maximum achievable control technology (MACT) for brick and tile manufacturing facilities.
In a March 6 per curiam order, the court without explanation denied the request by industry petitioners the Brick Industry Association, Kohler Co. and the Tile Council of North America, Inc. to extend by about 60 days the remaining briefing deadlines in consolidated litigation over the MACT rule.
The original briefing schedule will now apply, with respondent-intervenor briefs due March 17, reply briefs from both sides due April 7 and final briefs due from all parties April 28.
The suit, Sierra Club, et al. v. EPA, at al., consolidates environmentalists' suit charging that the brick MACT is too weak, while industry suits are challenging various aspects of the rule as too tough.
Environmentalists charge that EPA's first-time use of “health-based” emissions limits in lieu of tougher MACT limits in the rule violated the Clean Air Act's toxics provisions.
Industry petitioners in a Feb. 15 motion urged the court to delay briefing to allow for possible resolution of the case with the Trump administration, which may take a different approach than the Obama EPA. Environmentalists opposed the motion and the EPA took no position.
https://insideepa.com/daily-feed/dc-circuit-rejects-brick-mact-suit-briefing-extension
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EPA Science Advisers Favor Keeping Nitrogen Air Standards
Mar 9, 2017 | BNA Daily Environment Report
By Andrew Childers
Existing federal air quality standards for nitrogen dioxide are sufficient, the EPA's science advisers said, affirming the agency's preliminary determination that no changes are needed to the current requirements.
The Environmental Protection Agency's current national ambient air quality standards for nitrogen dioxide exposure are 53 parts per billion measured annually and 100 parts per billion measured hourly. The Clean Air Scientific Advisory Committee, which aids the EPA in setting the air quality standards, said exposure to nitrogen dioxide pollution below those concentrations has not been scientifically linked to additional adverse health impacts such as asthma and other respiratory diseases.
“Therefore, the CASAC recommends retaining, and not changing the existing suite of standards,” the group said in its March 7 letter to Administrator Scott Pruitt.
The EPA had recommended retaining the current standards, which must be reviewed every five years, in a draft policy assessment prepared as part of the periodic review process.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=106790575&vname=dennotallissues&fn=106790575&jd=106790575
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Environmentalists Vow Strong Opposition To Trump Bid To End CPP Suit
Mar 8, 2017 | Inside EPA
By Dawn Reeves
Environmental groups say they intend to oppose any Trump administration request for the U.S. Court of Appeals for the District of Columbia Circuit to remand or place in abeyance litigation over EPA's power plant greenhouse gas rule, saying it is important for the court to rule on many issues in the case regardless of whether the Trump EPA intends to scale back the rule.
David Doniger of the Natural Resources Defense Council (NRDC) told a March 7 press call, “Yes we could and yes we would” oppose a request by the administration to have the court end or pause the litigation, West Virginia, et al. v. EPA, et al., ahead of an anticipated executive order that President Donald Trump could sign in the coming days.
The order is expected to be similar to one signed last week on the Clean Water Act jurisdiction rule, telling EPA Administrator Scott Pruitt to rewrite the Clean Power Plan (CPP). The rule requires the power sector to cut GHGs by 32 percent in 2030, with the targets based in part on coal-fired plants shifting to cleaner generation.
The full D.C. Circuit heard day-long oral arguments in September but has yet to issue a ruling.
“This case is all but at the finish line,” Dongier said. “And questions have been put in this case that would be clearly relevant no matter how the agency might try to recast the rule. So it would be our intention to oppose any effort to shortcut the process and urge the court to continue on to reach its decision.”
One key issue the court could rule on in the case is whether EPA can define the “best system of emission reduction” (BSER) as one that goes beyond actions at a single facility. Here, EPA defined BSER to include actions through throughout the electricity system. Related to that is the issue of whether EPA can require in a rule issued under section 111(d) of the Clean Air Act a power plant to use a cleaner fuel than it is already using.
Other issues include whether the CPP violated the Constitution, whether it was barred by the so-called “section 112 exclusion” and whether the proposal was so different from the final rule it violated the Administrative Procedure Act.
Industry opponents of the rule have said that they expect the court to defer to the administration, noting that judges are unlikely to want to issue a ruling on a regulation that will be scaled back.
Despite the fact that many states are already on a course to comply with the CPP's targets, state and industry opponents want the rule scrapped or at least scaled back to targets that are based on actions taken within the fenceline of a facility.
But environmentalists also intend to challenge any rollback of the rule that fails to achieve meaningful GHG reductions.
Sean Donahue, who represents Environmental Defense Fund in the case, said the expected CPP and other GHG rule executive orders -- which could also require rewriting companion new power plant GHG standards, methane limits for new oil and gas drilling equipment, and EPA and Transportation Department clean car standards -- are “in line with Steve Bannon's . . . effort to deconstruct the administrative state,” referring to remarks Trump's chief strategist made last month during the Conservative Political Action Conference.
“Part of that effort is selecting agency heads with a proven track record of attacking and seeking to greatly weaken the very agencies they have been chosen to lead,” Donahue said, referring to Pruitt, who as Oklahoma attorney general sued EPA more than a dozen times.
Donahue also noted that the CPP order may come alongside a request for the court to remand the rule back to the agency for reconsideration. “Our groups are going to fight hard to protect these vital protections for public health and in particular to oppose efforts to take the Clean Power Plan . . . away from the judicial review process.”
'Face The Music'
In addition to the efforts in the CPP litigation, NRDC's Doniger said environmentalists are also considering options to challenge Pruitt's decision last week to grant a request by Republican states to halt an information request on methane emissions from existing oil and gas operations.
Ann Weeks of the Clean Air Task Force noted that removing the information request does not relieve EPA of its Clean Air Act duty to issue such a methane rule. Instead, it would only mean the rule would be promulgated without accurate information on the current state of emissions. “It's better if it is robust and scientifically grounded,” she said.
Doniger and others on the call stressed that any executive order would not change any rules' requirements or existence, and that tearing down the regulations will require going through the same arduous process as “building them up, and we will make them face the music at every step and in the courts.”
Also, Sierra Club's Joanne Spalding said that the agency “will be hard pressed to develop an adequate legal justification for repealing the Clean Power Plan unless it replaces it with strong standards. If it does not, we will challenge the agency's action in court.”
She noted that the pending executive order “is only the first stage of an attempt to roll [the rule] back,” and that environmentalists will “fight this backward-looking administration in the courts and in the streets and at the state and local level across America.”
Earthjustice's Howard Fox cited examples of where courts have rejected weak EPA rules in the past, including the Bush administration's Clean Air Mercury Rule, which sought to remove mercury from a list of regulated air toxics and instead create a cap-and-trade program for the pollutant under section 111(d).
He also cited the Supreme Court's landmark 2007 Massachusetts v. EPA ruling that rejected Bush administration claims that the air law barred it from regulating GHGs.
“We've been here before,” Weeks added, citing Massachusetts, which led to the Obama EPA issuing its finding that GHGs endanger public health and the environment.
And she urged the Trump administration to pay attention to public opinion on the issue, citing a post-election Yale/George Mason poll that found 70 percent of voters support efforts to address climate change, including six in 10 Trump voters.
Finally, Donahue sought to downplay the Supreme Court February 2016 stay of implementing the CPP during the litigation, calling it “an interim remedy pending litigation on the merits.” Opponents of the rule have cited the stay as an indication that courts would ultimately find the rule unlawful.
Pruitt “has made this very argument, and that's just wrong. . . . If he's relying on what courts have done, he should allow the court to reach a merits decision after months and months of consideration,” he said.
He added that the high court granted the stay based on the argument that the CPP would be “extreme and onerous,” but said that claim was largely debunked during the D.C. Circuit oral arguments. “It is very hard to argue that the kinds of claims that animated the stay motions are factually founded, are truthful,” he said.
https://insideepa.com/daily-news/environmentalists-vow-strong-opposition-trump-bid-end-cpp-suit
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