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ACC PM 4/3/2017

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LCSA News

EPA Memo Details Proposed Trump Budget Cuts
Apr 3, 2017 | Politico Pro - Whiteboard
By Alex Guillen

An internal EPA memo obtained by POLITICO details a wide swath of proposed budget cuts to the agency, reflecting the White House’s effort to slash its spending by 31 percent next year.

Chemical Management News

(ACC Mentioned) US Senate Creates Chemistry Caucus
Apr 3, 2017 | Chemistry World
By Rebecca Trager

The US Senate has established a new chemistry caucus that will provide a bipartisan forum for senators to address topics related to chemistry, and to safeguard the country’s chemical industry.
(ACC Mentioned) U.S. Senate Forms Chemistry Caucus
Apr 3, 2017 | Chemical & Engineering News
By Jessica Morrison

Lawmakers in the U.S. Senate last week launched a new caucus dedicated to spotlighting the role of the chemistry enterprise in the U.S. economy.
(ACC Mentioned) California Spray Polyurethane Foam Safety Proposal Slammed
Apr 3, 2017 | Plastics News
By Urethanes Technology International

The proposal by California’s Department of Toxic Substances Control to list spray polyurethane foam that contain unreacted MDI as priority products under the state’s Safer Consumer Products Program has caused consternation among industry bodies.
Tracking Exposure to Endocrine Disrupters Through Signals in the Sewer
Apr 3, 2017 | Chemical & Engineering News
By Deirdre Lockwood

Our plastics are rubbing off on us. Endocrine-disrupting compounds called phthalates, used to make polymer resins softer and more flexible, leach from many plastics and cosmetic products.

Energy News

(ACC Mentioned) A Pillar of The Anti-Fracking Movement Takes a Hit. The Implications?
Apr 3, 2017 | Forbes
By Ken Silverstein

A pillar of the anti-fracking movement has fallen now that a federal judge has set aside a lucrative jury award and has ordered a new trial.
Pruitt Dodges on Health Impacts of Killing Carbon Rule
Apr 3, 2017 | E&E Interactive
By Rod Kuckro

You can't blame "Fox News Sunday" moderator Chris Wallace for trying. Several times on yesterday's broadcast, Wallace tried to get U.S. EPA Administrator Scott Pruitt to respond to the adverse health effects of withdrawing the Obama-era Clean Power Plan.
Regulators Still Planning for CO2 Cuts, Despite Trump's Order
Apr 3, 2017 | E&E Climatewire
By Emily Holden and Daniel Cusick

The electricity sector won't just rest easy now that President Trump is trying to wipe the Clean Power Plan off the books, opponents of the regulation agree.
What You Should Know About This Little-Noticed Trump Order on Methane Pollution
Apr 3, 2017 | Environmental Defense Fund
By Felice Stadler

Buried in the sweeping executive order President Trump signed this week to undo critical climate and public health protections was a provision seeking to overturn limits on methane pollution from the oil and gas industry.
Trans-Pecos Pipeline Ready; Protest Camp to Close
Apr 3, 2017 | Fuel Fix
By David Hunn

West Texas pipeline protests have faded over the past month, and now, with the Trans-Pecos Pipeline complete, organizers say they’re closing down the largest of the camps.

Chemical Security News

Nixed Verdict Revives Pa. Contamination Battle
Apr 3, 2017 | E&E Energywire
By Ellen M. Gilmer

Years of conflict may still lie ahead for an already epic legal clash over water contamination in the Marcellus Shale town of Dimock, Pa.
Repeated Fires at Calif. Refinery Cause Public Outcry
Apr 3, 2017 | E&E Greenwire

California's Torrance Refining Co. should stop using a hazardous chemical after the facility's repeated fires and explosions in recent years, according to elected officials and activists.
After Major N.D. Oil Spill, Feds Retain Corrective Measures
Apr 3, 2017 | E&E Energywire

After one of the biggest oil spills in North Dakota's history, federal officials have decided to keep in place many of the corrective measures they ordered in December.

Transportation News

Transporters Push DOT to Override Oregon Waste Rule Interpretation
Apr 3, 2017 | Inside EPA
By Suzanne Yohannan

Groups representing recyclers and transporters of hazardous materials are pushing the Department of Transportation's (DOT) Pipeline and Hazardous Materials Safety Administration (PHMSA) to override Oregon regulators' interpretation of the state's EPA-delegated hazardous waste rules that hold transporters strictly liable for hazardous waste violations.

Environment News

Supreme Court to Hear WOTUS Litigation
Apr 3, 2017 | E&E Greenwire
By Amanda Reilly

In a rebuke to the Trump administration, the Supreme Court today decided to continue hearing litigation over the Obama administration's Clean Water Rule.
Justices to Resolve WOTUS Jurisdiction Over Trump's Wishes
Apr 3, 2017 | E&E Greenwire
By Amanda Reilly

The Supreme Court's decision this morning to continue hearing litigation over the Clean Water Rule could mean justices see the case as relevant no matter what President Trump decides to do with the regulation.
Pruitt Faces Tough Questions on Plans to Roll Back Climate Rules
Apr 3, 2017 | Inside EPA

EPA Administrator Scott Pruitt faced some tough questions from Fox News host Chris Wallace, who challenged him several times on the potential rollback of the Obama administration’s power plant greenhouse gas rule, the Paris climate agreement and his personal beliefs on climate science.
Scientific Integrity Head Investigating Pruitt's CO2 Comment
Apr 3, 2017 | E&E Climatewire
By Niina Heikkinen

U.S. EPA's scientific integrity official is reviewing whether EPA Administrator Scott Pruitt violated agency policy over his comments on carbon dioxide emissions last month.
EPA Chief Says Paris Climate Agreement 'Bad Deal' for U.S.
Apr 3, 2017 | Reuters (in Real Clear Energy)
By Valerie Volcovici

The United States should continue to be "engaged" in international climate change discussions but the Paris climate change agreement is a "bad deal" for the country, the head of the Environmental Protection Agency said Sunday.

Industry and Association News - There are no clips to report at this time.

LCSA News

EPA Memo Details Proposed Trump Budget Cuts

Apr 3, 2017 | Politico Pro - Whiteboard

By Alex Guillen

An internal EPA memo obtained by POLITICO details a wide swath of proposed budget cuts to the agency, reflecting the White House’s effort to slash its spending by 31 percent next year.
The 64-page document, dated March 21, includes details on spending priorities and includes some newly revealed targets, including the Science Advisory Board, the independent panel that advises EPA on scientific issues. SAB would see its $646,000 budget cut by 84 percent, or $542,000, "to reflect an anticipated lower number of peer reviews."
One of the programs that would see a budget increase is chemical safety reviews related to the reformed Toxic Substances Control Act. That program would get almost $14 million for that work, while more than 50 jobs will be shifted to be funded by fees collected from the industry under a rulemaking EPA says it will expedite. The budget also suggests boosting spending on NEPA implementation by $188,000 in order to expedite project reviews.
“The agency's work will center on our core legal requirements. federal-only and national efforts, providing support to states in implementing environmental laws, and easing regulatory burden," acting Chief Financial Officer David Bloom writes. That means eliminating voluntary programs, cutting "locally-focused" efforts like the Great Lakes clean-up and the Alaska Native Villages program, and reducing "non-core international efforts," Bloom adds.
The details in the memo were first reported by The Washington Post.
WHAT’S NEXT: The White House will release its final budget in May. Congressional appropriators have appeared skeptical of many of the cuts suggested for EPA, particularly on popular grant programs and clean-up initiatives.
https://www.politicopro.com/energy/whiteboard

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Chemical Management News

(ACC Mentioned) US Senate Creates Chemistry Caucus

Apr 3, 2017 | Chemistry World

By Rebecca Trager

The US Senate has established a new chemistry caucus that will provide a bipartisan forum for senators to address topics related to chemistry, and to safeguard the country’s chemical industry. Major goals of the new forum include highlighting the importance of science in policymaking, promoting efforts to encourage chemical manufacturing and further developing the pipeline of new chemists in the US.
The House of Representatives launched its own chemistry caucus in September 2016, and its expansion to the Senate was made public on 28 March. Senator Chris Coons – a chemistry major in college – said the new caucus will enable the Senate to ‘promote science in policymaking and encourage businesses to take the scientific advancements chemistry yields and bring them to the marketplace’. Another leader of the chemistry caucus is Senator Steve Daines, who is the only chemical engineer in Congress.
‘Establishment of this bicameral caucus will serve as an important forum for pro-innovation, pro-chemistry lawmakers to advance the chemistry enterprise,’ said Thomas Connelly, the American Chemical Society’s executive director and CEO. ‘Never have policies and legislation focused on investments in research and development, job creation, economic growth, and US global competitiveness been more crucial to the success of the country.’
Calvin Dooley, the American Chemistry Council’s president and CEO, saidthese House and Senate caucuses have come at a very critical time or American chemical manufacturing. ‘Reversing a long trend, our industry is experiencing historic growth here in the US that is having a very positive effect on domestic investment and adding jobs to our economy,’ he stated.
https://www.chemistryworld.com/news/us-senate-creates-chemistry-caucus/3007064.article

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(ACC Mentioned) U.S. Senate Forms Chemistry Caucus

Apr 3, 2017 | Chemical & Engineering News

By Jessica Morrison

Lawmakers in the U.S. Senate last week launched a new caucus dedicated to spotlighting the role of the chemistry enterprise in the U.S. economy. Sens. Shelley Moore Capito (R-W.Va.), Christopher A. Coons (D-Del.), Steve Daines (R-Mont.), and Gary C. Peters (D-Mich.) cosponsored the caucus. Lending support for the caucus are the American Chemical Society, which publishes C&EN, and two industry groups: the American Chemistry Council and the National Association of Chemical Distributors. In addition to . . .
Full Article Found Here: http://cen.acs.org/articles/95/i14/US-Senate-forms-chemistry-caucus.html?type=paidArticleContent

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(ACC Mentioned) California Spray Polyurethane Foam Safety Proposal Slammed

Apr 3, 2017 | Plastics News

By Urethanes Technology International

The proposal by California’s Department of Toxic Substances Control to list spray polyurethane foam that contain unreacted MDI as priority products under the state’s Safer Consumer Products Program has caused consternation among industry bodies.
“We are deeply disappointed by DTSC’s decision,” said the American Chemistry Council in a statement. “In the more than three years since SPF was first suggested for this program, industry has provided extensive data and science to DTSC that clearly illustrates SPF does not meet the minimum listing criteria set by the department’s own regulations.”
The SPF chemical/product combination is well studied and controlled, ACC added, and multiple regulatory controls are already in place to address the risk of worker exposure to unreacted MDI. Furthermore, ACC claimed that the state’s own public health monitoring programme reports no incidence of workplace asthma related to SPF or MDI in the past decade.
The Spray Polyurethane Foam Alliance also expressed disappointment. “While SPFA understands and emphasizes that the recent DTSC announcement is not a ban of spray polyurethane foam (or the use of diisocyanates found in a multitude of consumer products), it considers the announcement unfortunate as it undermines the desire among California private and professional customers’ for a safe and effective building product that delivers on performance,” SPFA said in a statement.
“There are several aspects of this DTSC announcement in California that the industry finds troubling, including department references and comparisons to specific isocyanates material in SPF that are not actually in SPF, unqualified references to asthma rates among workers in the polyurethanes industry, unproven statements as to ‘suspected’ medical consequences of exposure, and the assertion by DTSC that they have reached out to stakeholders including manufacturers and contractors in advance of this development,” said Kurt Riesenberg, SPFA’s executive director. “Our members in California did not receive contact from the DTSC prior to the announcement.”
http://www.plasticsnews.com/article/20170403/NEWS/170409990/california-spray-polyurethane-foam-safety-proposal-slammed

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Tracking Exposure to Endocrine Disrupters Through Signals in the Sewer

Apr 3, 2017 | Chemical & Engineering News

By Deirdre Lockwood

Our plastics are rubbing off on us. Endocrine-disrupting compounds called phthalates, used to make polymer resins softer and more flexible, leach from many plastics and cosmetic products. The compounds end up in our bodies when they are consumed, absorbed through the skin, or inhaled. Now researchers are trying to estimate phthalate exposure on a community level by sampling wastewater for metabolites of the compounds excreted in people’s urine (Environ. Sci. Technol. 2017, DOI: 10.1021/acs.est.6b05612). The application is still in its early stages and needs refinement before it can be used with accuracy, scientists say.
The new study is part of the growing field of wastewater-based epidemiology—measuring concentrations of drugs or contaminants in sewage to evaluate population-level exposure to these compounds, and how they change over time and vary by location. This technique allows researchers to gauge these trends without the laborious, expensive work of gathering urine samples from enough people to represent a community. For example, scientists used the method to detect a spike in use of antipsychotics and antidepressants in Greece after the country’s economic crisis.
Iria González-Mariño and José Benito Quintana of the University of Santiago de Compostela and their colleagues thought the technique could be used to assess phthalate exposure, which, in addition to influencing puberty onset and childhood obesity, has been linked to respiratory problems, type 2 diabetes, and pregnancy-induced hypertension. So they sampled wastewater in six treatment plants in northwestern Spain that primarily treat household wastewater. With an automated system, they sampled each plant on an hourly basis over a day. Then they pooled the day’s samples and analyzed them for eight metabolites of six commonly used phthalates using solid-phase extraction and liquid chromatography with tandem mass spectrometry.
Based on the measured levels, researchers estimated average metabolite concentrations in the urine of city residents represented at each treatment plant, and found that the values were generally of the same order of magnitude as those found in individual urine samples in two small studies in Spain.
Using those numbers, the researchers then predicted individual exposure to the phthalates for adults and toddlers, taking into account information from previous studies on typical human body weights and the average percentage of each metabolite excreted in urine. The estimated exposure levels for four phthalates—dimethyl phthalate (DMP),
di-iso-butyl phthalate, di-n-butyl phthalate, and di(2-ethylhexyl) phthalate—exceeded safe thresholds recommended by the Environmental Protection Agency and the European Food Safety Authority for toddlers in several locations. In the town of Nigrán, the estimated DMP exposure also exceeded the safe threshold for adults.
To get their estimates, the researchers assumed that all metabolites were excreted by people. One complication of this assumption is that soil bacteria can convert phthalates into some of the monoesters the researchers tracked, so some of what’s measured may represent bacterial activity in the sewer system before wastewater reaches the treatment plant, not human exposure, says environmental engineer James A. Nicell of McGill University. These bacteria could even be acting on industrial inputs of phthalates that didn’t contact humans, he says.
In lab experiments to check for this, the researchers found that wastewater spiked with the phthalates showed negligible production of two of the metabolites, and none of the others. However, this test did not rule out the possible effect of bacterial biofilms in sewer pipes, González-Mariño says, which can have different microbial profiles. Nicell says further studies could correct for the possible influence of bacteria by identifying metabolites unique to humans or determining the amount of microbial metabolic activity in a sewer system.
He says the approach has the potential to be an excellent early warning system for hotspots or sudden spikes in phthalate exposure, signaling a need for more focused monitoring studies, especially for vulnerable populations like children and pregnant women.
https://cen.acs.org/articles/95/web/2017/04/Tracking-exposure-endocrine-disrupters-through.html

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Energy News

(ACC Mentioned) A Pillar of The Anti-Fracking Movement Takes a Hit. The Implications?

Apr 3, 2017 | Forbes

By Ken Silverstein

A pillar of the anti-fracking movement has fallen now that a federal judge has set aside a lucrative jury award and has ordered a new trial. It involves the Dimock case that was spotlighted by the 2010 documentary “Gasland,” which sought to portray drilling as harmful to drinking water supplies.
Hydraulic fracturing, of course, is the technique used to break the shale oil and natural gas from rocks deep below the earth’s surface — a process that uses chemicals, sand and water. Critics complain of not just the potential for fouled drinking water but also of increased carbon emissions.
However, the drilling tack is the reason that the United States has become a global leader in oil and gas production and why natural gas is supplanting coal as the leading fuel used to generate electricity. And safe exploration has bipartisan support as a result, albeit the Democrats favor tighter restrictions and greater transparency in terms of the chemicals used to flesh out the fuels.
To that end, the differences became increasingly apparent when President Trump signed an executive order last week that reverses a rule put in place by President Obama to curb methane releases from oil and gas drilling. Methane, which is 72 times more potent than carbon dioxide when it comes to trapping heat, had been the alleged culprit in the Dimock case.
With that, Judge Martin Carlson took the rare step last week of setting aside the $4.24 million jury award in that trial for two families who had alleged that Cabot Oil & Gas Corp. despoiled the ground water in their township of Dimock, Pa. The jury, he said, disregarded flawed testimony, although the judge nonetheless ruled that the case could be retried.
“(T)he weaknesses in the plaintiffs’ case and proof, coupled with serious and troubling irregularities in the testimony and presentation of the plaintiffs’ case – including repeated and regrettable missteps by counsel in the jury’s presence – combined so thoroughly to undermine faith in the jury’s verdict that it must be vacated and a new trial ordered,” Judge Carlson wrote.
“Moreover, the jury’s award of more than $4 million in damages for private nuisance bore no discernible relationship to the evidence, which was at best limited …,” he added, in his ruling.
The Environmental Protection Agency has found that fracking can impact drinking water in some circumstances such as when there are declining ground water resources and when there would be any spillage of the chemicals used to extract the oil or natural gas. Also, wells that are too shallow may prove unsafe.
Generally, though, EPA found that there is no “widespread, systemic impact” on drinking water. That position is also supported by a Yale University study.
A Stanford University analysis, however, concluded that fracking can in some cases harm drinking water supplies. It looked at drilling operations in Wyoming and found that if chemicals are dumped in unlined pits or if cement barriers are non-existent, then water resources could be at risk.
“This is a wake-up call,” said lead author Dominic DiGiulio, a visiting scholar at Stanford School of Earth, Energy & Environmental Sciences, in a release. “It’s perfectly legal to inject stimulation fluids into underground drinking water resources. This may be causing widespread impacts on drinking water resources.”
The Dimock case, which was filed in 2009 and which claimed that Cabot’s fracking activities allowed methane to seep into its water supplies, sought to highlight the potential risks. Forty-two plaintiffs in this case settled early on with Cabot, which has remained steadfast that it did nothing wrong.
The natural gas producers, generally, say that they have the most to lose if their exploration techniques are anything less than fail-proof. Chesapeake Energy Corp., for example, has told this writer that the drilling goes a mile-and-a-half deep and that “nothing gets out,” referring to chemicals or tainted water. The potential?
There’s at least 2,515 trillion cubic feet of proven natural gas reserves, amounting to a century’s worth, according to the Potential Gas Committee. Prices are now $3 per million Btus – much less than what the Europeans or Asians are paying.
The American manufacturing and chemical industries are thriving as a result, while their foreign counterparts are investing billions here as well. Witness the rebirth of petrochemical plants all over this country — the equivalent of $258 billion in new manufacturing output by 2020 and $328 billion by 2025, says the American Chemistry Council.
The ramifications of this judge’s decision to set aside the award in the Dimock case are thus huge, impacting both corporations and communities. Freeport, Texas, for example, is now home to new ethylene and ammonia plants, which rely on a steady flow of natural gas, launched by two of the largest global chemical producers: America’s Dow Chemical Co. and Germany’s BASF.
“Cabot presented uncontradicted evidence that undermined the plaintiffs’ very theory of liability in this case …,” the judge wrote. “The plaintiffs had no explanation for this scientific evidence.”
While natural gas producers won this round, they should now take the opportunity to inform the communities where they operate of their best-practices while also going as far to reveal the chemicals they use to drill. That would create goodwill among all stakeholders and perhaps lessen the opposition's intensity.
https://www.forbes.com/sites/kensilverstein/2017/04/03/a-pillar-of-the-anti-fracking-movement-takes-a-hit-the-implications/#4f3ae8a03e04

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Pruitt Dodges on Health Impacts of Killing Carbon Rule

Apr 3, 2017 | E&E Interactive

By Rod Kuckro

You can't blame "Fox News Sunday" moderator Chris Wallace for trying.
Several times on yesterday's broadcast, Wallace tried to get U.S. EPA Administrator Scott Pruitt to respond to the adverse health effects of withdrawing the Obama-era Clean Power Plan.
Pruitt repeated the Trump administration's argument that the plan, which aimed to reduce the rate of carbon emissions from power plants, was "regulatory overreach" and that President Trump was keeping a campaign promise to kill the plan.
"We have nothing to be apologetic about," he said.
"You're not giving me a health answer. You're giving me a political answer," Wallace replied, citing data that 166 million people in the United States live in places where the air is "unclean."
"One of the key priorities of the administration is to improve air quality," Pruitt said.
"The past administration just made it up. They reimagined authority under the [Clean Air Act]" when they developed the Clean Power Plan, he said.
As for the Paris climate agreement, Pruitt did not directly endorse continued U.S. involvement.
"Engagement internationally is very important. Those discussions should ensue. What Paris represents is a bad deal for this country. We front-loaded our costs; China and India backloaded theirs," he said.
The distinction is that unlike China and India, "we can burn coal in a clean fashion. We shouldn't have this commitment by the U.S. government to say that fossil fuels are bad, renewables are good," Pruitt said. "The U.S. EPA and the U.S. government should not pick winners and losers."
Wallace played a clip of a recent interview of Pruitt in which he said he did not agree that carbon dioxide is a "primary contributor" to climate change.
"There's a warming trend, the climate is changing and human activity contributes to that change in some measure," Pruitt said. "The real issue is how much we contribute to it and measuring that with precision."
What if you're wrong? Wallace asked.
No more federal implementation plan
EPA today will publish in the Federal Register its withdrawal of proposed rules issued Oct. 23, 2015, addressing a federal implantation plan if states failed to develop their own approach on how to comply with the Clean Power Plan.
The withdrawal is in direct response to the executive order on energy independence that President Trump signed on March 28.
The Federal Register notice also withdraws EPA's proposed model carbon trading rules and rules addressing the design of the Clean Energy Incentive Program that would have rewarded states that wanted to comply early with the CPP.
The notice said EPA plans to "use this time to re-evaluate these CPP-related proposals and, if appropriate, put out re-proposals or new proposals to ensure that the public is commenting on EPA's most up-to-date thinking on these issues."
In case you missed it
Pruitt told governors that they "have no obligation to spend resources to comply with a rule that has been stayed" (Climatewire, March 31).
Supporters of the Clean Power Plan are expected to file their formal opposition to the Justice Department's request to halt the litigation this week, while others are planning public protests (E&E News PM, March 29).
Neither Trump nor Pruitt mentioned climate change when unveiling the executive order to gut EPA's carbon rule. So what's next? (Climatewire, March 29).
Trump's sweeping renunciation of the Obama administration's environmental policies reduced the world's largest economy to one idea: Coal, burned cheaply and cleanly, will fuel American prosperity this century. There's ample evidence to the contrary (Energywire, March 29).
Trump's executive order aimed at scrapping Obama-era climate actions scrambles existing litigation and sets the stage for high-stakes courtroom battles to come (Energywire, March 29).
The attorneys general of 16 states and the District of Columbia signaled they will mount a court challenge to EPA's move to reverse the Clean Power Plan (E&E News PM, March 28).
http://www.eenews.net/interactive/clean_power_plan/column_posts/1060052477

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Regulators Still Planning for CO2 Cuts, Despite Trump's Order

Apr 3, 2017 | E&E Climatewire

By Emily Holden and Daniel Cusick

The electricity sector won't just rest easy now that President Trump is trying to wipe the Clean Power Plan off the books, opponents of the regulation agree.
Power companies will continue to expect and plan for restrictions on their carbon emissions, whether from a future administration, customer expectations or market shifts.
Some may even brace for much tougher carbon cuts than they would have seen under the Obama administration's rules. A Democratic president four years from now could be under pressure to quickly ratchet down emissions to catch up with international climate talks.
"To me, the carbon risk hasn't changed all that much in the intermediate term with the elections. ... If Congress and the administration keep at it the way they've been at it, that risk goes up," said Ted Thomas, the Republican-appointed chairman of the Arkansas Public Service Commission.
GOP Rep. Kevin Cramer, a former North Dakota regulator who has advised Trump, agrees.
"The worst thing that could happen would be if North Dakota as a state and industry in general was to view Donald Trump's signature the other day as 'OK, the war on coal is now over, let's build some new coal plants,'" Cramer said.
Cramer said no one is naive enough to believe that, but he thinks that with the president's recent order, "perhaps the bleeding has stopped."
North Dakota is still set on finding a way forward for coal. Cramer argues the president should try to spend money on research into capturing emissions from fossil fuel plants if he stays in the Paris climate deal (see related story). State lawmakers have looked at moving money from county and school construction to clean coal technology. Some have unsuccessfully floated taxing or penalizing wind power to make it easier for coal to compete.
Meanwhile, Basin Electric Power Cooperative, a Bismarck-based co-op that operates in nine states, will still keep moving toward renewable power, but likely at a slower pace than under the Clean Power Plan.
"From our perspective, really not a lot changes," said Dale Niezwaag, director of government relations. "The mindset we've gotten from our members is that with the new administration, yes, there will be a break, or release, reducing of the pressure to move to a carbon-constrained future. But they don't see this going away."
EPA Administrator Scott Pruitt last week sent a letter to governors reminding them that they don't have to prepare for the Clean Power Plan, and it's true that they won't return to that process.
At the same time, power companies start making their plans decades in advance. While Trump's order may allow some coal plants to stay online a bit longer, utilities will keep shifting toward clean energy and keeping an eye out for future restrictions on emissions.
'It makes sense to plan'
Most utility executives and management professionals don't think the next four years under Trump will change the fuel mix for them, according to a January survey by Utility Dive. Nearly half have a "more positive outlook" for coal now, but few expect to deploy more coal at their own utilities.
More than a third of respondents said they want more wind and solar energy because of consumer sentiment or low or declining prices. Seventeen percent cited state renewable targets or mandates as their reason, and only 5 percent said emissions standards are the most compelling reason to invest in renewable power.
All of those considerations factor into how power companies make plans to meet demand.
Utilities also consider which direction the world is moving, what their states and neighboring ones might require, and what existing air pollution rules mean for coal, said David Farnsworth, a senior associate with the Regulatory Assistance Project, which uses computers to sketch out tons of possible scenarios and weigh which ones are likely.
"You're not looking at this quarter or this year. It's 2017. You're looking out to 2025, 2030," Farnsworth said.
American Electric Power, which gets slightly less than half of its generating capacity from coal, has factored a cost of carbon into its plans for the last eight years, "based on the assumption that there would be CO2 regulations at some point," said spokeswoman Tammy Ridout.
AEP has already cut carbon emissions 44 percent between 2000 and 2016 by moving toward natural gas and renewable resources.
"We still think it makes sense to plan for some form of CO2 regulation in the future, even though there is a lot of uncertainty about how and when a regulatory program would be put in place," she said.
The wild card: The courts
While politics may cloud the issue, even Republican state lawmakers stress that Trump's order won't halt that shift away from coal.
Tom Sloan, a Republican legislator in Kansas, explained that "economics, prior judicial decisions and public opinion will continue to adversely impact the coal industry and utility coal-fired generation units."
Small and inefficient coal plants will continue to close because they cost more than the alternatives. Larger plants will face the same fate when they require major maintenance or retrofits that make them more expensive to run.
Plus, EPA in the future may be required by the courts to act on greenhouse gas emissions, Sloan noted.
The Supreme Court in 2007 ruled that EPA has the authority to regulate greenhouse gas emissions from stationary sources. EPA then came to the conclusion that carbon must be restricted because it is a danger to public health.
"To change those decisions, the Administration will need to propose new emission rules based on scientific modeling, go through the public hearing process, and withstand the lawsuits that will follow any reduction in emission limits," Sloan said via email. "While the Administration may ultimately be successful, this will be a multi-year process and utilities will have to make operational decisions in the interim. Those decisions will be based on economics, public preferences, and their expectation of whether the Administration will ultimately be successful in their efforts."
That's where state regulators like Thomas come in. They are tasked with making sure power companies that have a monopoly over their customers provide electricity that is as cheap as possible while still being reliable and safe. How they consider potential environmental costs varies state to state, but most assume more carbon cuts are coming.
Arkansas was largely on track to comply with its Clean Power Plan goals, but Thomas believes the requirements will be stricter the next time around. He's been frustrated by recent Republican losses, including a failure to repeal President Obama's health care law. So he added his name to a list of experts available to chat with reporters that was distributed by Climate Nexus.
"They had five months to get ready for health care and didn't get it done," he said. "If they don't get on the same page, there's going to be different people setting energy policy."
Supporters of the Clean Power Plan are also expecting to revisit the issue.
At a final stakeholders meeting in St. Paul on Friday, Minnesota regulators offered "funeral brownies" for the Clean Power Plan to mark five years of unfulfilled planning efforts, but said they would continue to monitor activities in Washington, including the pending federal court challenge.
"It's very clear that EPA does not intend for anyone to do anything with the version of the Clean Power Plan that's out there right now," said David Thornton, assistant commissioner for the Minnesota Pollution Control Agency.
Even so, officials said they expect Minnesota's utility-sector emissions will continue to trend downward, regardless of what happens with EPA. Minnesota's utilities have achieved a 17 percent reduction in emissions under the 10-year-old Next Generation Energy Act. Those gains are expected to continue with the retirement of more coal-fired power plants and the adoption of significantly more renewables.
"We're seeing market forces take over the emission reduction strategy on the electric utility side with prices falling so rapidly, particularly for wind and solar," said Bill Grant, deputy commissioner for energy and telecommunications at the Minnesota Department of Commerce.
Nick Martin, manager of environmental policy at Minneapolis-based Xcel Energy Inc., said the state's Clean Power Plan compliance effort has helped the utility chart a path to lower carbon emissions. But he cautioned that other sectors — including industrial, commercial and residential — must do more if the state is to achieve its long-term carbon reduction goals.
http://www.eenews.net/climatewire/2017/04/03/stories/1060052460

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What You Should Know About This Little-Noticed Trump Order on Methane Pollution

Apr 3, 2017 | Environmental Defense Fund

By Felice Stadler

Buried in the sweeping executive order President Trump signed this week to undo critical climate and public health protections was a provision seeking to overturn limits on methane pollution from the oil and gas industry.
As Trump launches an all-out assault on his predecessor’s climate initiatives, this little-noticed methane provision may seem like a side note. Unfortunately, it could have major implications for our nation.
Rules benefit taxpayers and industry
The U.S. Environmental Protection Agency finalized common-sense clean air standards for new and modified oil and gas operations in May 2016 after a multi-year public and technical review. The Bureau of Land Management followed with a similar rule late last year that addresses methane pollution on federal and public lands.
The EPA’s nationwide safeguards, now targeted by the Trump administration, were modeled after methane initiatives already implemented in Colorado and Ohio – programs that have been popular with the public and proven cost-effective for the industry. California followed suit in late March 2017 when it adopted strong rules to cut methane from the state’s oil and gas sector.
The main ingredient in natural gas, methane is a potent greenhouse gas with 84 times the warming power of carbon dioxide over the first 20 years after it is emitted. America’s oil and gas industry currently releases nearly 10 million metric tons of methane a year, enough to cover the gas needs of more than 7 million homes.
In addition to mitigating a potent climate pollutant, methane protections would capture and reduce smog-forming and toxic air pollution that is released along with methane.
Unsurprisingly, efforts to weaken these rules have run into public and political resistance, also from constituents in key energy-producing states.
America’s oil and gas industry currently releases nearly 10 million metric tons of methane a year.
According to a national poll conducted just last month, 73 percent of Americans support state and federal action requiring the oil and gas industry to reduce gas leaks.
In light of such public sentiment it’s especially troubling that Trump’s executive order would roll back BLM limits on methane waste and pollution on our nation’s federal and tribal lands. Oil and gas development in these areas is widespread and natural gas waste is mounting.
Such waste contributes not just to climate and public health risks, but also to millions of dollars in lost royalties that could benefit states, tribes and federal taxpayers.
Congress has even taken the attack against the BLM methane standards a step further. Industry allies in the U.S. Senate are trying to use a blunt, arcane law called the Congressional Review Act to completely kill these protections – potentially blocking future administrations from addressing methane waste on public lands.
These efforts all share a common theme: Favoring the oil and gas polluter lobby at the expense of citizens and our environment. This, surely, is not what America is about.
https://www.edf.org/blog/2017/03/31/what-you-should-know-about-little-noticed-trump-order-methane-pollution

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Trans-Pecos Pipeline Ready; Protest Camp to Close

Apr 3, 2017 | Fuel Fix

By David Hunn

West Texas pipeline protests have faded over the past month, and now, with the Trans-Pecos Pipeline complete, organizers say they’re closing down the largest of the camps.
“Yeah, we’re in transition mode,” said Frankie Orona, executive director of the San Antonio-based Society of Native Nations and a camp leader. “The pipeline is pretty much in the ground.”
Activists completed 13 “direct actions” — civil disobedience aimed at slowing the progress of Dallas-based Energy Transfer Partners, the pipeline’s main builder. Many involved protesters chaining or locking themselves to heavy machinery in the early morning, forcing the company to wait for police before starting work.
But the most recent arrest was almost three weeks ago, the Presidio County Sheriff’s Office said. Deputies found 21-year-old Greeley, Colo., resident Anna Joy Kruger, her arms wrapped around an excavator and then affixed together with a homemade cast of PVC pipe, chicken wire, concrete, tar and duct tape — far harder and more time-consuming to remove than the chains protesters used earlier in the year. Deputies had to get a grinder to cut through the concrete and metal. They arrested her on suspicion of trespassing, a misdemeanor, and criminal mischief, a felony.
The Trans-Pecos pipeline received federal approval Thursday to run gas across the border. The pipeline, a spokeswoman said, is “operationally ready for service.”
Less than 10 are now left at the camp, called Two Rivers, a mix of tents, teepees and at least one yurt on private land near Big Bend Ranch State Park, 40 miles south of Marfa and 25 miles north of the Mexican border. Orona said he’ll close it in the next few weeks and begin looking for a new target.
Other activists have gathered near West Texas’s Balmorhea State Park, home to the famous spring-fed swimming pool, to protest fracking operations conducted by Houston-based Apache Corp. Orona said camp leaders are equally interested in targeting Calgary-based Enbridge’s Valley Crossing Pipeline, set to run from near Corpus Christi to the southern tip of Texas.
That pipeline is still setting its course, and activists would have a much better ability to affect the outcome.
But Orona worries he won’t get much traction. Activists blocked the Dakota Access Pipeline and the Keystone XL Pipeline, and now the Trump Administration has greenlighted both.
“I think the movement’s dying down a lot throughout the country,” he said. “I think people are discouraged.”
In the meantime, however, campers at Two Rivers could use a hand. They need gas money to cover their coming move.
http://fuelfix.com/blog/2017/04/03/trans-pecos-pipeline-ready-protest-camp-to-close/

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Chemical Security News

Nixed Verdict Revives Pa. Contamination Battle

Apr 3, 2017 | E&E Energywire

By Ellen M. Gilmer

Years of conflict may still lie ahead for an already epic legal clash over water contamination in the Marcellus Shale town of Dimock, Pa.
A federal court Friday scrapped a verdict against Cabot Oil & Gas Corp. and ordered a new trial, ruling that evidence in the case simply did not support the jury's $4.2 million finding last year in favor of two Dimock families that complained of fouled drinking water.
Chief Magistrate Judge Martin Carlson of the U.S. District Court for the Middle District of Pennsylvania wrote that weaknesses in the plaintiffs' arguments and "regrettable missteps" by their attorney undermined the verdict (E&E News PM, March 31).
Carlson's decision shocked the Dimock families and their supporters, many of whom have used the case as a platform for opposition to expansive oil and gas development in Pennsylvania and elsewhere.
"The judge heard the same case that the jury heard and the jury was unanimous," plaintiff Scott Ely said in a statement. "How can he take it upon himself to set aside their verdict? It's outrageous."
"Gasland" filmmaker Josh Fox, whose hit anti-drilling documentary put a nationwide spotlight on Dimock, called the decision unbelievable.
"I know the evidence in this case very well," he told E&E News. "It's an open-and-shut case as far as oil and gas contamination goes. And unfortunately the folks in Dimock are going to have to withstand another round."
Carlson's decision rested in large part on a critical element of the plaintiffs' testimony: that they experienced problems with their water wells at least a month before Cabot started drilling operations nearby. He concluded that the "jury's verdict is against the clear weight of the evidence."
Industry supporters were elated, seeing Friday's decision as vindication after last year's $4.2 million hit to Cabot's reputation.
"Cabot felt confident that once a thorough review of the overwhelming scientific evidence and a full legal analysis of the conduct of the plaintiff's counsel was conducted, the flaws in the verdict would be understood," spokesman George Stark said in an email.
Industry advocate Tom Shepstone called it "a wonderful day in northeastern Pennsylvania," while Nicole Jacobs, spokeswoman for the industry group Energy in Depth, said the court's decision underscores holes in activists' arguments against drilling.
"The federal judge has confirmed what has long been apparent: there are 'substantial and varied weaknesses' and 'serious and troubling irregularities in testimony' in the plaintiffs' case," she said in an email.
Setting aside a verdict
Dimock, Pa., plaintiffs and their supporters cried foul last week when the district court scrapped the $4.2 million verdict against Cabot Oil & Gas Corp.
Plaintiff Scott Ely expressed surprise that the judge would "take it upon himself" to toss the jury's conclusion. Anti-fracking filmmaker Josh Fox alleged judicial corruption.
In fact, the judge's move was rare but permissible under court rules. The standards vary slightly by jurisdiction, but federal judges generally can set aside jury verdicts and order a new trial in any of these circumstances:
The verdict contradicts the "clear weight" of the evidence.
Newly discovered evidence arises that could change the likely outcome.
Improper conduct from an attorney or the court unfairly influenced the verdict.
The verdict is inconsistent.
"We do not take this step lightly, and we recognize the significance of voiding the judgment of a panel of jurors who sat through nearly three weeks of trial and reached a unanimous verdict," Chief Magistrate Judge Martin Carlson said in his opinion.
"Nevertheless, upon consideration of the trial record, and following reflection on the substantial and varied weaknesses in the plaintiffs' case together with the myriad examples of inappropriate conduct that repeatedly occurred in the jury's presence and may have colored the outcome of this case," he said, "the Court is constrained to find that a new trial is not only justified, but required."
'Forbidden territory'
Friday's decision is yet another twist in a legal saga that began nearly a decade ago when many Dimock residents began complaining of water problems.
In November 2009, 44 plaintiffs filed a lawsuit against Cabot arguing that the company's new natural gas wells were to blame for tainted water wells in the area.
While the litigation moved forward, state and federal regulators investigated the water wells — yielding limited and sometimes contested results. The Pennsylvania Department of Environmental Protection linked contamination to poorly constructed gas wells. U.S. EPA issued a narrow finding that hydraulic fracturing fluid, specifically, had not contaminated the water.
Most families eventually settled their claims against Cabot, leaving only two standing for trial last year: the Elys and the Huberts (Energywire, March 8, 2016).
The case narrowed further as the early 2016 trial approached, with Carlson tossing several claims against Cabot and barring the plaintiffs from presenting certain evidence that had not previously been produced during the many years of litigation.
The trial then focused on a limited question: Had Cabot negligently conducted drilling activities on two Dimock wells and created a nuisance for the families by interfering with the enjoyment of their property?
Carlson wrote Friday that plaintiffs attorney Leslie Lewis never accepted the narrowed nature of the case and continually strayed into "forbidden territory" outside the scope of the trial.
"This trespass into areas that had been excluded risked confusing the jury, was prejudicial to Cabot, and undermines confidence in the jury's verdict," he wrote.
Carlson added that he had to conduct 40 sidebars lasting a total of 3 ½ hours during the 10-day trial to address "inappropriate conduct" from the plaintiffs' side that "marred the trial from opening to close."
Lewis disputes the characterization, saying that Carlson's opinion does not "fairly reflect the record or the totality of what transpired in the courtroom."
Next steps
Now, it's back to court for the high-stakes case.
Carlson's order requires the two sides to consider settlement options under the supervision of a new judge. He stressed that a settlement could be in everyone's best interest considering the steep costs of ongoing litigation.
"At this point, the litigative risks and the costs to all parties associated with trying the remaining claims are obvious," he wrote. "Given the time, money, and effort that has been put into this litigation to date, the Court will require that the parties undertake an effort to determine whether settlement of the plaintiffs' remaining claims is possible."
If the settlement discussions fail, the parties will move on to a new trial at the district court.
Carlson rejected Cabot's request to simply resolve the litigation in the company's favor. The judge noted that some testimony from plaintiffs' witnesses could persuade a reasonable jury that even though the families complained of water problems before Cabot started drilling, the company could have contributed to issues in the area.
Lewis said her clients were also considering challenging Carlson's decision at the 3rd U.S. Circuit Court of Appeals. However, it's unclear whether the order is appealable because it is not a final judgment from the district court.
http://www.eenews.net/energywire/2017/04/03/stories/1060052480

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Repeated Fires at Calif. Refinery Cause Public Outcry

Apr 3, 2017 | E&E Greenwire

California's Torrance Refining Co. should stop using a hazardous chemical after the facility's repeated fires and explosions in recent years, according to elected officials and activists.
A news conference on Saturday took place shortly before an investigative hearing on the refinery by the South Coast Air Quality Management District. The hearing was called to look into the air quality effects of the facility's "repeated breakdowns and associated flaring."
In February, the facility, now owned by PBF Energy Inc., caught fire on the second anniversary of a major explosion that halted almost all of the refinery's operations for over a year.
The U.S. Chemical Safety Board found through an investigation that equipment nearly crashed into a tank with tens of thousands of pounds of modified hydrofluoric acid inside. The agency said the chemical's toxic clouds could have resulted in "serious injury or death to many community members."
"The dangers this chemical poses to the public are clear and real," said Los Angeles County Supervisor Janice Hahn. She and others called for the phaseout of the chemical at the refinery.
http://www.eenews.net/greenwire/2017/04/03/stories/1060052500

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After Major N.D. Oil Spill, Feds Retain Corrective Measures

Apr 3, 2017 | E&E Energywire

After one of the biggest oil spills in North Dakota's history, federal officials have decided to keep in place many of the corrective measures they ordered in December.
The Pipeline and Hazardous Materials Safety Administration's Office of Pipeline Safety decided last week to retain several of the corrective measures it had previously handed to Wyoming-based pipeline operator True Cos.
This means True Cos. must now take several steps, including digging up the failed section of the Belle Fourche pipeline and conducting additional analysis of the pipe and terrain.
True Cos. maintains that the spill was an "isolated, unpredictable event."
But the Office of Pipeline Safety disagreed in its decision, saying the pipeline remains vulnerable to future spills.
"The facility is or would be hazardous to life, property or the environment without corrective measures," Alan Mayberry, associate administrator for pipeline safety, wrote in his decision (AP/Billings Gazette, March 30).
http://www.eenews.net/energywire/2017/04/03/stories/1060052442

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Transportation News

Transporters Push DOT to Override Oregon Waste Rule Interpretation

Apr 3, 2017 | Inside EPA

By Suzanne Yohannan

Groups representing recyclers and transporters of hazardous materials are pushing the Department of Transportation's (DOT) Pipeline and Hazardous Materials Safety Administration (PHMSA) to override Oregon regulators' interpretation of the state's EPA-delegated hazardous waste rules that hold transporters strictly liable for hazardous waste violations.
The industry groups say the state's stance conflicts with federal transportation law and is expected to cause carrier disruptions nationally.
The groups argue transporters currently follow a federal transportation rule that requires them to rely on information provided through manifests by the generators of hazardous waste, unless the carrier -- exercising reasonable care -- would know of information indicating the generator is providing inaccurate information in the manifest.
Oregon's interpretation of its hazardous waste rule would remove the federal transportation rule's "reasonable care" standard and impose strict liability on transporters, an industry attorney says.
Carrier groups fear nationwide disruptions from Oregon's interpretation of its Resource Conservation & Recovery Act (RCRA)-delegated rules -- arguing it will impede rail operations by requiring testing and certifying of shipments and will trap transporters in general "in a Kafkaesque version of Catch-22," according to comments from the groups.
"If the Oregon rule is not preempted, . . . the transporter, despite exercising reasonable care, would be liable for any omission, mistake, or mischaracterization made by the generator because the transporter's reliance on the generator's representations is no longer allowed," says the group "NORA, An Association of Responsible Recyclers" in March 10 comments it submitted to PHMSA. NORA -- a trade association that formerly was the National Oil Recyclers Association but has since broadened out to also represent recyclers of spent antifreeze, wastewaters and other materials -- has taken the lead in opposing Oregon's interpretation of its regulation.
NORA says Oregon's interpretation "will have a highly disruptive impact nationwide." It notes the interpretation affects all shipments of waste that the generator has declared are non-hazardous when in fact they are not, and also impacts "hidden shipments" of hazardous waste that despite exercising reasonable care, a transporter is unaware of, the group says. This could lead transporters to refusing to carry wastes, leading to generators stockpiling or illegally dumping wastes, it says.
If Oregon's interpretation is not preempted, every shipment through Oregon would have to be tested by railroads to verify contents, delaying shipments, creating major logistical obstacles, and increasing costs and the need for additional training, the Association of American Railroads (AAR), which represents railroads across North America, says in March 10 comments to PHMSA.
NORA petitioned PHMSA to issue a determination finding that federal hazardous material transportation law preempts the state of Oregon's Administrative Rule 340-100-0002(1) as it applies to transporters.
PHMAS Proposal
In response, PHMSA in the Jan. 24 Federal Register issued a notice of proposed rulemaking to decide whether to make such a determination. PHMSA accepted comments until March 10 on the petition, and is now accepting rebuttal comments until April 24, before its chief counsel makes a decision, the Register notice says. PHMSA notes that federal transportation regulations contain express preemption measures that are relevant to this situation.
At issue is the Oregon Environmental Quality Commission's (OEQC) interpretation of its hazardous waste regulations. While the regulations are identical to RCRA, the OEQC in a separate case, which recently came before the state supreme court, pursued a transporter of hazardous waste, applying strict liability for hazardous waste violations, according to the industry attorney.
Asked whether EPA plans to weigh in on the issue, an EPA spokeswoman says the agency will not be submitting comments on the proposed rulemaking notice but "may engage informally with DOT during the rule development process."
The state's Department of Justice filed comments on behalf of the Oregon Department of Environmental Quality (ODEQ) March 9 saying the state's interpretation of its regulations are consistent with EPA's RCRA program, and points to the state supreme court's Feb. 9 opinion in State v. Oil Re-Refining Company, which addresses the standard of liability for violations of Oregon's hazardous waste rules.
In the ruling, the state says, the court "upheld the EQC's determination that Oregon's hazardous waste regulations and statutes provided for strict liability for civil hazardous waste violations."
The court found that DOT's authority only extends to parties who "knowingly" violate hazardous materials rules, but that DOT "does not assess liability on transporters who unknowingly accept hazardous waste without a manifest because [DOT] has no authority to do so."
The court went on to say, "The manifest requirements imposed by the commission, the EPA, and the [DOT] are consistent. They each prohibit a transporter from transporting hazardous waste without a manifest." A transporter carrying hazardous waste without a manifest violates each of the three provisions, it says. "The difference is that the commission and the EPA have the authority to assess a penalty for such a violation, but [DOT] has the authority to assess such a penalty only if the violation was knowing."
ODEQ argues in its comments to PHSMA that the state high court's reasoning and the federal court precedents it cites "conclusively establish that the federal standard for liability under RCRA is strict liability.
"Therefore, Oregon's interpretation of the federal regulations it adopted by reference is the same as the federal RCRA requirement," it continues. "Any other standard would render Oregon's program less stringent than the federal requirements and not meet minimum RCRA requirements."
The state argues that as its regulation is authorized by RCRA and not preempted by federal transportation rules, "NORA's petition should be rejected."
Carriers' Contention
But carriers decry the state's interpretation and point to other case law they say supports their contention that strict liability does not apply where a transporter does not know that a material is a hazardous waste. For instance, NORA points to the 1985 ruling in Crockett v. Uniroyal, Inc., in which the U.S. Court of Appeals for the 11th Circuit stated that it agrees with a lower court "that EPA and DOT regulations do not impose upon a transporter a duty to determine if a hazardous waste is present when the generator states that it is not."
In its comments submitted March 10 to PHMSA, NORA points to agreement between Congress, EPA and DOT that "EPA's regulations governing transportation of hazardous waste are required to be, and are, consistent with DOT's hazardous materials regulations governing transporters," referring to RCRA and the Hazardous Materials Transportation Act (HMTA). It also cites case law that supports that DOT has primary jurisdiction over such rules. NORA says this means that HMTA preempts any inconsistent state law.
The group notes that DOT in its recent Federal Register notice points out that non-federal requirements are preempted when they are not "'substantively the same as'" a measure in federal hazardous material transportation law or a regulation prescribed by that law.
The group says though that "a state's strict liability interpretation -- which deletes DOT's reasonable care standard -- cannot be reconciled with the federal requirement. The DOT rule imposes a standard of reasonable care on transporters and the Oregon rule removes it.
"Clearly, the Oregon rule does not conform 'in every significant respect' to the federal requirement. Consequently, they are not substantively the same."
Further, it says Oregon's interpretation makes it "impossible to comply with both the Oregon rule" and the federal DOT requirement. Transporters under the latter would need to exercise reasonable care to avoid liability, but under the Oregon rule, to avoid liability, they would have to second-guess generators on waste determinations despite transporters' lack of expertise, it says.
NORA argues, "Oregon's position distorts the concept of strict liability by imposing such liability on entities that lack the ability and knowledge to assure compliance."
NORA also contends that Oregon's interpretation undermines DOT's authority to regulate hazardous waste transports.
AAR, in its comments in support of PHMSA asserting preemption authority, notes that under RCRA, generators of hazardous waste have "a non-delegable duty to accurately characterize the materials it tenders for transportation." And federal rules permit transporters to rely on information given to them by generators regarding shipments.
https://insideepa.com/daily-news/transporters-push-dot-override-oregon-waste-rule-interpretation

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Environment News

Supreme Court to Hear WOTUS Litigation

Apr 3, 2017 | E&E Greenwire

By Amanda Reilly

In a rebuke to the Trump administration, the Supreme Court today decided to continue hearing litigation over the Obama administration's Clean Water Rule.
The high court rejected the Justice Department's motion to halt the case while the Trump administration reconsiders and changes or rescinds the rule. The Clean Water Rule, though, remains stayed nationwide.
The Obama administration's rule clarified which streams and wetlands receive automatic protection under the Clean Water Act. The Supreme Court case centered on whether legal challenges belong in federal district or appeals courts.
Petitioners filed 18 lawsuits in district courts and 22 petitions for review in federal appeals courts over the rule, which is also known as Waters of the U.S., or WOTUS. In February 2016, the 6th U.S. Circuit Court of Appeals found that it had jurisdiction to hear challenges.
The National Association of Manufacturers wanted to keep the case in local district courts and asked the Supreme Court to review the 6th Circuit's decision.
The Supreme Court decided to take up the case in January shortly before Inauguration Day, but the Trump administration this month asked the court to pause the case following an executive order compelling U.S. EPA and the Army Corps of Engineers to take another look at the joint rule (Greenwire, March 9).
State supporters of the rule, trade groups and environmental organizations had urged justices to continue hearing the case.
Environmentalists argued that the questions over the correct legal venue would continue to be relevant given that they would likely sue over whatever replacement rule the Trump administration issues (Greenwire, March 16).
The choice of court affects the resources needed to litigate the merits of challenges, sets the statute of limitations for filing lawsuits, and helps determine whether actions can be challenged in subsequent civil or criminal proceedings.
http://www.eenews.net/greenwire/stories/1060052490

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Justices to Resolve WOTUS Jurisdiction Over Trump's Wishes

Apr 3, 2017 | E&E Greenwire

By Amanda Reilly

The Supreme Court's decision this morning to continue hearing litigation over the Clean Water Rule could mean justices see the case as relevant no matter what President Trump decides to do with the regulation.
The high court this morning denied the Trump administration's motion to pause the litigation in light of Trump's recent executive order compelling U.S. EPA and the Army Corps of Engineers to review and revise or rescind the rule (Greenwire, April 3).
The case centers on the question of which court has jurisdiction to hear challenges to the Obama administration's Clean Water Rule — also known as Waters of the United States, or WOTUS — which clarified which wetlands and streams receive automatic protection under the Clean Water Act.
Justices may have seen the case as presenting a "potentially recurring jurisdictional issue" under the Clean Water Act "that is worth resolution," said Jonathan Adler, a law professor at Case Western University.
"Given that I suspect the court took the case in the first place because of its interest in this issue," Adler said, "it should not be surprising that the court is not going to let go of the case right now."
The National Association of Manufacturers brought the case, arguing that the 6th U.S. Circuit Court of Appeals erred in February 2016 when it decided in a 2-1 decision to hear challenges.
The choice of court affects the resources needed to litigate the merits of challenges, sets the statute of limitations for filing lawsuits and helps determine whether actions can be challenged in subsequent civil or criminal proceedings.
Environmentalists had asked the Supreme Court to continue hearing the litigation and cheered today's decision.
"The Court saw through the Trump administration's maneuver," said Jon Devine, a senior attorney in the Natural Resources Defense Council's water program. "The administration brazenly attempted to postpone the Clean Water Rule's implementation indefinitely, while it goes about gutting protections for water bodies that serve as drinking water supplies, natural flood buffers and pollution filters, and destinations for countless Americans who swim and fish."
As is typical with such motions, justices did not give any details of why they decided to go ahead with the case.
Larry Liebesman, a senior adviser with the Washington water resources firm Dawson & Associates, said justices might have been persuaded by the opposition to the Trump administration's motion to hold the case's briefing schedule in abeyance.
Along with environmentalists, several state supporters of the rule and industry entities asked the court to continue with the case and resolve the jurisdiction issue.
"Given the confusion about what court is supposed to hear the case and implications for future challenges to other regulations on the Clean Water Act," Liebesman said, "they may very well have concluded that it makes sense right well to address the ambiguity right now."
Pat Parenteau, a law professor at Vermont Law School, said justices might have also viewed the Trump administration's motion as "highhanded."
"What they were basically saying to the court was, we're going to engage in a rulemaking and we're going to make this whole thing go away," Parenteau said, "and in the meantime, we want the stay to remain in place — but there will never be an adjudication of whether the rule has in fact been valid."
According to the current case schedule, the first merits brief from the National Association of Manufacturers is due April 13.
The Supreme Court is expected to hear oral arguments in its fall term and could issue a decision by the end of the year.
As the litigation continues to play out in the Supreme Court, the Trump administration is continuing to review the Clean Water Rule. The president's executive order instructed the agencies to consider using a test outlined by the late Justice Antonin Scalia in the infamously muddled 2006 Rapanos Supreme Court decision.
Scalia argued that the Clean Water Act applied only to "navigable waters" connected by a surface flow at least part of the year.
The Obama administration, on the other hand, based its Clean Water Rule on Justice Anthony Kennedy's test that waters must have a "significant nexus" to navigable rivers and seas (Greenwire, March 7).
"Given that we don't know how quickly the Trump administration will act on WOTUS," Adler said, "it's possible courts will begin to rule on the merits of the current rule before a replacement is developed."
EPA Administrator Scott Pruitt has signaled that the agencies will fast-track their review of the Obama rule.
Parenteau said it will be "interesting" to see how the timelines for the Supreme Court litigation and reconsideration of the rule interact.
"It'll be interesting to see whether or not they can actually complete the rulemaking when the case is heard in the fall and walk into court and say, 'Here's a new rule,'" Parenteau said.
Jan Goldman-Carter, senior manager of wetlands and water resources at the National Wildlife Federation, said the Supreme Court's decision today to continue with the case should signal to the Trump administration that it can't "end-run either the formal rulemaking process or the courts."
The Trump administration needs to address the robust record that the Obama administration built up to defend the Clean Water Rule, she said.
"They pretty clearly have an intention to roll back these protections, and they'd like to be able to move forward with that without having to defend their actions," she said. "It sends that signal that they're going to have to defend their actions through this process."
Environmentalists would like to see the 6th Circuit continue to hear challenges over the Obama administration rule, Goldman-Carter said.
If the Supreme Court finds that district courts have jurisdiction, she argued, it would magnify the uncertainty and inconsistency about the application of the Clean Water Act.
"The cases challenging the rule are based on the same basic arguments and the same basic perceived flaws in the rule as they apply across the country," she said. "As a practical matter, it does not seem worth utilizing judicial resources to re-litigate that case at the district court level and then at the appellate court level."
Under the Obama administration, the federal government maintained that challenges belong in federal appellate courts. As Oklahoma attorney general, Pruitt argued that district courts should hear the cases.
Parenteau predicted that the Trump Justice Department would continue the Obama administration's argument that the challenges belong in federal appeals courts.
"I think DOJ is probably going to have the final word on that," he said, "and much prefer to defend these rules one time and not defend it all over the country."
http://www.eenews.net/greenwire/2017/04/03/stories/1060052505

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Pruitt Faces Tough Questions on Plans to Roll Back Climate Rules

Apr 3, 2017 | Inside EPA

EPA Administrator Scott Pruitt faced some tough questions from Fox News host Chris Wallace, who challenged him several times on the potential rollback of the Obama administration’s power plant greenhouse gas rule, the Paris climate agreement and his personal beliefs on climate science.
For much of the interview, Pruitt found himself on the defense.
Right out the gate, Wallace listed some of the public health benefits that EPA’s existing power plant GHG rule known as the Clean Power Plan (CPP) was projected to bring -- including 90,000 fewer asthma attacks per year, 300,000 fewer missed work and school days and 3,600 fewer premature deaths annually by 2030. “Without the Clean Power Plan, how are you going to prevent those terrible things?” Wallace asked.
In response, Pruitt launched into his familiar spiel about process and the rule of law, charging the CPP went beyond the bounds of EPA’s statutory authority. “The president is keeping his promise to deal with that overreach,” Pruitt said.
But Wallace pressed him several times about the health impacts. Pruitt regularly repeated that the United States is currently at “pre-1994” levels of carbon dioxide emissions and often pivoted to talking about criteria pollutants, even when the question was referring to GHG pollution.
“I think what you are referring to is, we have about 40 percent of the country in non-attainment right now, those key air pollutants under our ambient air quality standards, which are outside of the CO2 discussion. And I agree wholeheartedly that we need to focus our attention at making sure we make progress there,” Pruitt said at one point. “In fact, that’s one of the key priorities of the administration, is to improve air quality to be on the 60 percent attainment that we see.”
Pruitt also appeared to argue, when asked whether getting rid of the CPP would improve air quality, that progress was not currently occurring because EPA was being sued over its regulation because it is unlawful.
“We can’t continue that process because what happens, Chris, is clean air is not advanced because you have litigation such as the Clean Power Plan. You have stays of enforcement against that Clean Power Plan and there’s no progress being made with clean air and we are also spending money on litigation,” Pruitt said.
Wallace also questioned Pruitt on the Paris Agreement and China’s global leadership on climate change, in advance of Chinese President Xi Jinping’s visit with Trump this week. Pruitt largely dodged a question about whether he would remain committed to the Paris deal’s goals, calling the agreement a “bad deal,” though he did say international engagement should continue.
Wallace also returned to a controversial moment last month, where Pruitt told CNBC he did not agree that CO2 is a “primary contributor” to global warming. Wallace gave examples of “all kinds of studies that contradict you,” and when Pruitt answered by echoing a response from his confirmation process -- that humans contribute to climate change but debate remains about how much and what to do about it -- Wallace said he was “kind of sugarcoating” his prior comments.
Wallace then asked Pruitt: “What if you’re wrong?” And he pressed him on whether coal plants’ carbon emissions play a role.
“I think that we’ve done better than anybody in the world at burning coal clean, in a clean fashion,” Pruitt said, also touting innovations in natural gas production.
“We have nothing to be apologetic about. We’re going to operate within the framework of the Clean Air Act to deal with these issues and make sure that we advance clean air, clean water, not just with this respect to CO2, but with those key air pollutants under the ambient air quality standard program that we have,” Pruitt added.
The exchange did little to bolster Pruitt's standings with his most conservative critics, who are already concerned that the administrator is blocking an even greater rollback of climate programs than what the administration is seeking.
Breitbart columnist James Dellingpole called the interview “not only . . . an ugly and painful sight but . . . also a very dispiriting one.” He adds that Pruitt got “eaten alive” by Wallace.
https://insideepa.com/daily-feed/pruitt-faces-tough-questions-plans-roll-back-climate-rules

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Scientific Integrity Head Investigating Pruitt's CO2 Comment

Apr 3, 2017 | E&E Climatewire

By Niina Heikkinen

U.S. EPA's scientific integrity official is reviewing whether EPA Administrator Scott Pruitt violated agency policy over his comments on carbon dioxide emissions last month.
The review comes in response to a formal complaint the Sierra Club filed with EPA's Office of Inspector General after Pruitt stated on CNBC's "Squawk Box" that he does not consider CO2 a main contributor to climate change.
"I think that measuring with precision human activity on the climate is something very challenging to do, and there is tremendous disagreement about the degree of impact," Pruitt said.
Francesca Grifo, the agency's scientific integrity official, is now reviewing the complaint. In a letter to the Sierra Club last week, EPA said it was referring the complaint to Grifo after the Office of General Counsel and the inspector general discussed who had authority to respond to questions of scientific integrity outlined in the Sierra Club letter.
"If after the the SIO review, she concludes there is some aspect of the letter itself, or her finding or conclusions that she believes are appropriate for further consideration by the OIG, she will notify the OIG," the letter read.
In an emailed statement, an EPA spokeswoman said differing views and opinions on scientific matters are "consistent" with the agency's scientific integrity policy.
Part of the agency's scientific integrity policy reads that EPA will welcome "differing views and opinions on scientific and technical matters as a legitimate and necessary part of the scientific process."
"Administrator Pruitt makes no apologies for having a candid dialogue about climate science and commonsense regulations that will protect our environment, without creating unnecessary regulatory burdens that kill jobs," said spokeswoman Liz Bowman.
Elena Saxonhouse, a senior attorney at the Sierra Club who submitted the complaint, welcomed EPA's decision.
"We're glad the independent and professional staff at the EPA are apparently taking steps to consider this serious issue and we're hopeful that this process ultimately causes Pruitt to correct the record and stop falsifying science, or if he is incapable of accepting the scientific consensus on climate, to get out of the environmental protection business altogether," she said in a statement.
The Sierra Club has argued that Pruitt's comments on climate change are in direct violation of the agency's policy that staff and appointees cannot exaggerate scientific uncertainty. While Pruitt's comments suggested there is still significant debate on climate change, the vast majority of scientists agree that carbon dioxide emitted from human activity is the main contributor to rising average global temperatures (ClimateWire, March 16).
EPA's scientific integrity policy states that when communicating scientific findings, agency staff and appointees should "include a clear explication of underlying assumptions, accurate contextualization of uncertainties, and a description of the probabilities associated with both optimistic and pessimistic projections."
EPA employees also have to ensure that scientific work is "free from political interference and personal motivations."
Federal agencies significantly strengthened their scientific integrity policies under President Obama, who emphasized the need for "robust science" to guide the policies of federal agencies and departments. In 2012, EPA updated its scientific integrity policy and established an oversight committee, led by the scientific integrity official, to implement the changes, according to EPA's website.
http://www.eenews.net/climatewire/2017/04/03/stories/1060052489

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EPA Chief Says Paris Climate Agreement 'Bad Deal' for U.S.

Apr 3, 2017 | Reuters (in Real Clear Energy)

By Valerie Volcovici

The United States should continue to be "engaged" in international climate change discussions but the Paris climate change agreement is a "bad deal" for the country, the head of the Environmental Protection Agency said Sunday.
EPA Administrator Scott Pruitt did not confirm whether the United States would remain in the global climate change pact, under which nearly all countries agreed in 2015 to halt or curb their greenhouse gas emissions, even as the world's biggest emitter China reaffirmed its commitment to the agreement.
Chinese President Xi Jinping is due to have his first meeting with President Donald Trump on April 6-7. Xi and other Chinese officials have pledged to remain in the agreement.
"To demonstrate the leadership that we have shown on this issue with China and India and other nations is very important and discussions should ensue," Pruitt said on Fox News Sunday, "but what Paris represents is a bad deal for this country."
Last week, Trump signed an executive order rolling back former President Barack Obama's climate change policies, including the Clean Power Plan to slash carbon emissions from power plants -- a key factor in the United States' ability to meet its Paris commitments.
The executive order did not address the question of whether the United States would remain in the agreement but White House spokesman Sean Spicer said last week a decision would be made before the G7 summit in June.
Sources told Reuters that White House officials are getting feedback from fossil fuel companies about the pros and cons of staying in the agreement.
Chinese foreign ministry spokesman Lu Kang said last week all countries should "move with the times and "fulfill their promises and earnestly take proactive steps to jointly push the enforcement of this agreement."
Pruitt said China and India signed onto the agreement without being required to reduce emissions. Under the agreement each country has submitted a national strategy to meet its own emission reduction goals.
Asked on Sunday to clarify a statement he made last month that carbon dioxide -- emitted from fossil fuel power plants -- is not a primary contributor to climate change, Pruitt said "human activities contribute to that change in some measure."
"The real question is how much are we contributing to that and measuring that with precision," he said.
http://www.reuters.com/article/us-usa-climatechange-paris-idUSKBN1740NP?

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