Preview Newsletter
ACC PM 08/12/17
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Agencies' Shutdown Plans Would Send Thousands Home
Dec 8, 2017 | E&E Greenwire
By Kevin Bogardus
Several federal agencies this week readied contingency plans in case Congress wasn't able to avert a government shutdown. -
(ACC Mentioned) EPA Works With Industry to Streamline Chemical Reviews
Dec 8, 2017 | Chemical & Engineering News
By Britt E. Erickson
The U.S. Environmental Protection Agency is struggling to review the safety of new chemicals in an efficient yet still protective manner. -
EPA Won't Fight Moving TSCA Lawsuit to 9th Circuit
Dec 8, 2017 | PoliticoPro - Whiteboard
By Alex Guillen
EPA today said that it will not oppose environmental groups' effort to switch courts for a lawsuit over one of the two major implementation rules for the reformed Toxic Substances Control Act. -
EPA Withdraws Formaldehyde Air Rule Over Missing Test
Dec 8, 2017 | Inside EPA
EPA is withdrawing a direct final rule on formaldehyde emissions from wood products after manufacturers complained that the October rule omitted one type of testing method used by small testing entitites, potentially further hampering their efforts to have certified product in stock by the rule's deadlines. -
EPA to Withdraw Direct Final Rule to Update Voluntary Consensus Standards for Composite Wood Products
Dec 7, 2017 | Lexology
By Lynn L. Bergeson and Margaret R. Graham
On December 8, 2017, the U.S. Environmental Protection Agency (EPA) is scheduled to publish in the Federal Register a notice that it is withdrawing its direct final rule issued on October 25, 2017, to update the voluntary consensus standards that were originally published in the Toxics Substances Control Act (TSCA) Title VI formaldehyde emission standards for composite wood products final rule on December 12, 2016. -
CBS News Covers a Chemical's Tragic Impact; Points to Urgent Need to Ban High-Risk Uses of Methylene Chloride
Dec 7, 2017 | EDF Health Blog
By Lindsay McCormick
This morning, CBS News focused on the tragic story of Kevin Hartley—a young man who died at the age of 21 while working with a product that contains methylene chloride. -
Lawmakers Threaten to Cut WHO Funding Over Glyphosate Study
Dec 8, 2017 | E&E Greenwire
By Corbin Hiar
Republican leaders of the House Science, Space and Technology Committee today threatened to cut off millions of dollars of U.S. funding for the World Health Organization's closely scrutinized cancer agency. -
In First Act as FERC Chair, McIntyre Asks for NOPR Extension
Dec 8, 2017 | Natural Gas Intelligence
By Charlie Passut
Hours after being sworn in as FERC chair on Thursday, Kevin McIntyre sent a letter to Department of Energy (DOE) Secretary Rick Perry, asking for another month to study the controversial notice of proposed rulemaking (NOPR), which faces a Monday deadline. -
New York’s Heralded Fracking Ban Isn’t All It’s Cracked Up to Be
Dec 8, 2017 | StateImpact Pennsylvania
By Kristen Lombardi
In 2014, Gov. Andrew Cuomo made a bold statement by banning hydraulic fracturing in the Empire State, declaring alongside his health commissioner that “no child should live near” a shale-gas well because of its potential harm. -
Court Lets N.Y. Gas Project Proceed While Feds Sort It Out
Dec 8, 2017 | E&E Energywire
By Saqib Rahim
A federal court is letting construction of a controversial pipeline begin while state and federal authorities duke it out in court. -
Va. Advances Mountain Valley Project With Permit Vote
Dec 8, 2017 | E&E Energywire
By Jenny Mandel
The Virginia State Water Control Board voted yesterday to approve a water quality certification for the Mountain Valley pipeline project, clearing the last major regulatory hurdle for a project that has been fiercely opposed by environmental groups. -
PCA Contesting Penalties in DeRidder Explosion That Killed 3
Dec 8, 2017 | KATC News
By Lanie Lee Cook
Packaging Corporation of America is contesting the tens of thousands of dollars in penalties OSHA lodged against it for a February tank explosion that killed three people and injured seven. -
EPA Removes Climate Change References from Website, Report Says
Dec 8, 2017 | CNN
By Madison Park
References to climate change and the Environmental Protection Agency's use of renewable energy have been removed from several of its web pages, according to an analysis by the Environmental Data and Governance Initiative. -
Some Agency Advisers Reject Smog. Pruitt Contradicted Them
Dec 8, 2017 | E&E Climatewire
By Scott Waldman
U.S. EPA Administrator Scott Pruitt worried observers recently when he appointed science advisers who question established science on the dangers of air pollution. -
In Major Policy Shift, EPA Defers To Industry On Key NSR Permitting Test
Dec 8, 2017 | Inside EPA
By Dawn Reeves
In a major policy shift, EPA is dropping its long-running position that the agency can use its own projections of a facility's potential future emissions to trigger Clean Air Act new source review (NSR) permitting requirements and will now adopt industry's approach that will defer to companies to assess whether they believe NSR applies. -
Pruitt Backs Off Enforcement of Power Plant Program
Dec 8, 2017 | E&E Greenwire
By Sean Reilly
U.S. EPA Administrator Scott Pruitt is instructing agency officials to effectively drop enforcement of one key facet of the New Source Review program, in what could be a prelude to broad changes in the handling of air permits for both new plants and expansions of existing facilities. -
EPA Faults 3 States for Failing to File Ozone Cleanup Plans
Dec 8, 2017 | E&E Greenwire
By Sean Reilly
U.S. EPA is poised to formally fault three states for failing to submit revamped cleanup plans for meeting its 2008 ground-level ozone standard.
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Agencies' Shutdown Plans Would Send Thousands Home
Dec 8, 2017 | E&E Greenwire
By Kevin Bogardus
Several federal agencies this week readied contingency plans in case Congress wasn't able to avert a government shutdown.
Yesterday, the House and Senate passed a stopgap spending measure to keep the federal government's doors open for another two weeks, which President Trump signed into law today. Nevertheless, many agencies updated their shutdown plans, some for the first time in years.
The documents show which government functions would lie dormant and which would be kept running. Several of the plans also show which workers would have to go home as well as those who would be required to work as part of a skeleton crew manning the federal government.
Furloughed employees would go without pay as long as the government was shut down. Lawmakers would have to later pass legislation to authorize back pay for those workers, which Congress has done in the past.
During the last government shutdown in October 2013, 40 percent of the federal workforce, or 850,000 employees, was furloughed. That resulted in $2 billion in back pay — $2.5 billion including benefits — that had to be doled out once agencies were reopened.
Under its shutdown plan updated this week, U.S. EPA would furlough 95 percent of its roughly 14,400-person workforce. Only 781 of the agency's employees would be "excepted," considered necessary to protect life and property and thus called into work.
Some of EPA's "excepted activities" would be ensuring toxic-waste Superfund sites that could pose a threat to life would not be left unattended, keeping freezers in EPA's laboratories running while making sure lab animals and plants are not damaged, and keeping the agency's emergency response staff at the ready.
EPA employees would not pay contractors, would have to suspend their travel and would not hire new employees during a shutdown.
Other agencies would be dramatically limited and short-staffed during a government shutdown, as well.
The Interior Department would furlough 2,267 employees under its shutdown plan dated this September.
The Federal Energy Regulatory Commission would have 49 employees and 18 contractors out of its 1,465 workers perform "excepted activities" during a shutdown, according to its contingency plan updated this week. All five FERC commissioners would continue working during a lapse in appropriations.
Some agencies could take days to close.
The National Park Service would have two phases to shutting down operations, which would include closing campgrounds and park roads. The process would be completed within four days, according to its plan dated September.
Others would take little time to close up shop. Under its plan updated this week, the Chemical Safety Board estimates it would take four hours to complete its shutdown.
Last week, the Office of Management and Budget was guiding agencies on how to prepare for a shutdown. The agency held a call with federal officials on the afternoon of Dec. 1.
"OMB guidance requires that we convene a call with agencies one week prior to the expiration of appropriations, regardless of whether the enactment of appropriations appears imminent," OMB spokeswoman Meghan Burris said in a statement given before Congress passed funding legislation yesterday.
She noted that OMB has held similar calls with agencies in the past — including in 2013, in 2015 and three times for fiscal 2017.
While some agencies updated their shutdown plans this week, many others did not, including the Department of Energy.
According to a list of the plans maintained by OMB, several have not revised their plans since September 2015, when there was another threat of a government shutdown (Greenwire, Sept. 28, 2015).
https://www.eenews.net/greenwire/2017/12/08/stories/1060068527
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(ACC Mentioned) EPA Works With Industry to Streamline Chemical Reviews
Dec 8, 2017 | Chemical & Engineering News
By Britt E. Erickson
The U.S. Environmental Protection Agency is struggling to review the safety of new chemicals in an efficient yet still protective manner. The agency has been meeting with the chemical industry over the last few months to develop a framework for getting new chemicals onto the market faster. Environmental groups and other stakeholders are troubled that they were left out of the discussions.
A year ago, chemical manufacturers were grumbling about a backlog of new chemicals waiting to be reviewed for safety by EPA. The backlog was a consequence of amendments to the Toxic Substances Control Act that were passed by Congress in 2016. The updated law requires EPA to affirm the safety of chemicals before they enter the market.
EPA used its new authorities under the amended law to request additional toxicity data from chemical manufacturers when information was insufficient to evaluate the safety of a chemical. The agency also considered all uses of a chemical, including reasonably foreseen uses.
But that process came to a halt in January amid complaints about a growing backlog of new chemicals. Today, most of the backlog is gone because EPA put extra staff and resources on the problem and streamlined its review process.Rather than looking at all reasonably foreseeable uses of a chemical, EPA is now evaluating only the intended uses reported by a manufacturer. All other uses are being handled under a separate rule-making process, called a significant new use rule. Consequently, the agency is requesting much less toxicity data from industry than it did initially under the revised TSCA because the scope of use for each chemical is much narrower.
EPA held a meeting on Dec. 6 to get feedback from stakeholders about these changes.
Environmental groups are outraged that EPA made many of the changes at the request of industry without taking input from other stakeholders. They claim that EPA is reverting back to business as usual under the old TSCA.
“EPA is returning the new chemicals program to its dark ages under the old TSCA, making it again into a black box within which EPA acts as if its only stakeholder is the chemical industry,” says Richard Denison, lead senior scientist with the environmental group Environmental Defense Fund.
Linda Reinstein, cofounder of the Asbestos Disease Awareness Organization, agrees that EPA should have gotten input from a broader group of stakeholders, not just the chemical industry. She is particularly concerned about EPA’s recent move to limit its evaluation of chemicals to only the intended uses reported by a manufacturer. In doing so, EPA ignores exposures to legacy chemicals, such as asbestos, Reinstein says. “People will lose faith in the chemical industry if chemicals are not properly evaluated, but more importantly it will signal a failure of TSCA once again.”
Even with the new changes, the chemical industry is still complaining that EPA is taking too long to review new chemicals. “Progress has been made, but more needs to be done,” says Karyn Schmidt, senior director of chemical regulation and regulatory and technical affairs at the American Chemistry Council, the chemical industry’s major trade association. In particular, the chemical industry would like to see more predictability and certainty in EPA’s risk assessments and a less conservative approach, Schmidt adds.
https://cen.acs.org/articles/95/web/2017/12/EPA-works-industry-streamline-chemical.html
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EPA Won't Fight Moving TSCA Lawsuit to 9th Circuit
Dec 8, 2017 | PoliticoPro - Whiteboard
By Alex Guillen
EPA today said that it will not oppose environmental groups' effort to switch courts for a lawsuit over one of the two major implementation rules for the reformed Toxic Substances Control Act.
Several lawsuits over the evaluation rule were consolidated into the Richmond, Va.,-based 4th Circuit Court of Appeals, while suits over the prioritization rule were moved to the 9th Circuit, which is based in San Francisco.
Seeking to avoid connected rules being litigated in different courts, EPA asked the 9th Circuit to send its suit to the 4th Circuit. Environmentalists made a similar request of the 4th Circuit to transfer its suit to the 9th Circuit.
But the 9th Circuit last month said it would not release the suit over the prioritization rule, leaving open the possibility that the 4th Circuit could transfer the evaluation rule challenge to the 9th Circuit.
In a short filing today, EPA said that it still believes both challenges should be heard in the same court, and said it will drop its opposition to green groups’ request that the 4th Circuit move the case.
WHAT’S NEXT: It is unclear when the 4th Circuit will act, and it could still decide to keep the suit rather than transfer it.
https://www.politicopro.com/energy/whiteboard
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EPA Withdraws Formaldehyde Air Rule Over Missing Test
Dec 8, 2017 | Inside EPA
EPA is withdrawing a direct final rule on formaldehyde emissions from wood products after manufacturers complained that the October rule omitted one type of testing method used by small testing entitites, potentially further hampering their efforts to have certified product in stock by the rule's deadlines.
EPA will proceed instead with a proposed version of the rule that it published alongside the direct final rule in October, in case the agency received negative comments regarding the direct final rule.
“EPA will issue a final rule after considering all of the comments received during the proposed rule’s comment period,” the agency says in a Dec. 7 statement.
The October rule aimed to address concerns that the formaldehyde rule as published in the final days of the Obama administration included outdated references to testing standards and methods for assessing formaldehyde emissions from wood products. EPA said if it did not receive adverse comment the direct final rule would take effect as written, or if it received any push-back it would scrap the direct final rule and pursue the proposal.
But the direct final rule omitted one test method, known as ASTM D-6007, prompting push-back from manufacturers that led to EPA's withdrawal of the rule, slated for publication in the Dec. 8 Federal Register.
Trade groups warn that if the missing testing method is not added to the rule, they are concerned “there is not enough large chamber capacity to meet the ASTM E-1333 methodology to avoid significant disruption to world-wide supply of composite wood panels that are used in the manufacturing of furniture, kitchen cabinets, fixtures, flooring, and many other finished goods,” writes the International Wood Products Association in Nov. 9 comments.
The Composite Panel Association (CPA) in its Nov. 3 comments writes that the California Air Resources Board, which promulgated that state's formaldehyde emissions standards, “has estimated that . . . approximately 30% of certified production” are certified by third-party certifiers that do not have the kind of large testing chambers required to conduct the testing approach -- ASTM E-1333 -- included in the rule.
Instead, these smaller certifiers conduct the omitted ASTM D-6007 testing approach. CPA warns that larger certifiers won't be able to fill the gap if smaller certifiers cannot operate.
“CPA is a third-party certifier with three E-1333 chambers, and in order to service existing and expected clients, we would need to complete almost 2,000 large chamber tests over a span of 1.8-2.5 years running full time to meet demand for mills that would be forced to develop new correlations to replace those done using D-6007 'small' chambers. In the interim, clients without correlations would be ineligible for certification and thus prevented from selling certified panels into the marketplace.”
EPA says that the proposed rule corrects the direct final rule “by allowing the formaldehyde emissions mill quality control test methods to correlate to either the ASTM E1333-14 test method or, upon a showing of equivalence, the ASTM D6007-14 test method. This correlation was inadvertently omitted from the original final rule.”
EPA in September also issued a final rule extending the compliance dates for the emissions standards from Dec. 12 to December 2018. That extension was a source of controversy within industry, as some trade groups urged the Trump administration to delay the deadlines beyond the original date and others urged EPA to quickly put the emissions standards in place to protect American businesses from international competition.
https://insideepa.com/daily-feed/epa-withdraws-formaldehyde-air-rule-over-missing-test
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Dec 7, 2017 | Lexology
By Lynn L. Bergeson and Margaret R. Graham
On December 8, 2017, the U.S. Environmental Protection Agency (EPA) is scheduled to publish in the Federal Register a notice that it is withdrawing its direct final rule issued on October 25, 2017, to update the voluntary consensus standards that were originally published in the Toxics Substances Control Act (TSCA) Title VI formaldehyde emission standards for composite wood products final rule on December 12, 2016. EPA issued both a direct final rule and a proposed rule on October 25, 2017. EPA states that, due to its receipt of adverse comment on the rule, it must withdraw the direct final rule and proceed with issuing a final rule only after it has considered all of the comments received during the comment period which ended on November 9, 2017.
The proposed updates apply to emissions testing methods and regulated composite wood product construction characteristics. EPA states that several of those voluntary consensus standards (i.e., technical specifications for products or processes developed by standard-setting bodies) were updated, withdrawn, and/or superseded through the normal course of business by these bodies to take into account new information, technology, and methodologies.
As a reminder, EPA has extended the compliance dates for the formaldehyde emission standards for composite wood products final rule that was issued on December 12, 2016. The extensions for compliance are:Emission standards, recordkeeping, and labeling provisions -- from December 12, 2017, to December 12, 2018;Import certification provisions -- from December 12, 2018, to March 22, 2019;Laminated product producer provisions -- from December 12, 2023, to March 22, 2024; andThe conclusion of the transition period for California Air Resources Board (CARB) Third-Party Certifiers (TPC) -- from December 12, 2018, to March 22, 2019.
https://www.lexology.com/library/detail.aspx?g=8847efe3-c644-4e2e-af30-fbff049d0484
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Dec 7, 2017 | EDF Health Blog
By Lindsay McCormick
This morning, CBS News focused on the tragic story of Kevin Hartley—a young man who died at the age of 21 while working with a product that contains methylene chloride. Kevin’s story, powerfully relayed by his mother Wendy, illustrates the need to ban high-risk uses of this chemical.
As we have previously noted, in January, the Environmental Protection Agency (EPA) proposed to ban methylene chloride in paint and coating removal products. The agency based its proposal on an extensive assessment of the scientific literature, which demonstrated not only lethal risks from acute exposures to methylene chloride but also a host of other acute and chronic health impacts, like harm to the central nervous system, liver toxicity, and cancer.
Products containing this chemical can be readily found in most hardware stores in America and more tragedies are all but certain, if EPA does not promptly finalize its proposed ban.
The ongoing debates in Washington over the implementation of a new chemical safety law passed just last year are often dense and dry. In sharing her son Kevin’s story, Wendy Hartley reminds us that how these policies are applied has a very real human impact. That is why EDF continues to demand EPA better protect American families from toxic chemicals like the one highlighted by CBS News today.
http://blogs.edf.org/health/?_ga=2.104616265.811355118.1512753117-897839998.1511453412
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Lawmakers Threaten to Cut WHO Funding Over Glyphosate Study
Dec 8, 2017 | E&E Greenwire
By Corbin Hiar
Republican leaders of the House Science, Space and Technology Committee today threatened to cut off millions of dollars of U.S. funding for the World Health Organization's closely scrutinized cancer agency.
The warning was prompted by the International Agency for Research on Cancer's response to a letter the lawmakers sent last month requesting the names and contact information of IARC-affiliated individuals responsible for editing its controversial glyphosate study, which is known as a monograph (E&E Daily, Nov. 2).
Chairman Lamar Smith (R-Texas), Vice Chairman Frank Lucas (R-Okla.) and Arizona Republican Rep. Andy Biggs, the chairman of the Environment Subcommittee, weren't satisfied with the agency's reply, which "failed to provide the Committee with a potential witness for a hearing and did not adequately address our concerns regarding the scientific integrity of the IARC Monograph Programme," they wrote in a follow-up letter.
"If IARC does not provide a full response to the request for potential witnesses, the Committee will consider whether the values of scientific integrity and transparency are reflected in IARC Monographs and if future expenditures of federal taxpayer dollars to this end need to continue," the lawmakers said. They gave IARC until Dec. 15 to comply with their request.
Since 1985, IARC has received more than $48 million from the U.S., $22 million of which has gone to its Monograph Programme, the lawmakers noted.
Smith's panel is one of two House committees actively investigating IARC's 2015 determination that the widely used herbicide glyphosate is "probably carcinogenic." Agribusiness giant Monsanto Co., which uses glyphosate in its popular Roundup weed killers, has pushed back strongly on the finding (E&E News PM, March 24, 2015).
https://www.eenews.net/greenwire/2017/12/08/stories/1060068529
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In First Act as FERC Chair, McIntyre Asks for NOPR Extension
Dec 8, 2017 | Natural Gas Intelligence
By Charlie Passut
Hours after being sworn in as FERC chair on Thursday, Kevin McIntyre sent a letter to Department of Energy (DOE) Secretary Rick Perry, asking for another month to study the controversial notice of proposed rulemaking (NOPR), which faces a Monday deadline.
"To date, the Commission has received over 1,500 submissions" from the public about the NOPR, McIntyre wrote in a letter, which was sent following his swearing in. "In addition, the Commission has sworn in two new members within the last two weeks. The proposed extension is critical to afford adequate time for the new Commissioners to consider the voluminous record and engage fully in deliberations."
There was no immediate response from DOE. Perry was in Saudi Arabia last Monday to attend a conference and meet with energy ministers.
The Federal Energy Regulatory Commission faces a Dec. 11 deadline to take action on the NOPR [RM18-1]. The provision calls for FERC to impose rules on independent system operators and regional transmission organizations "to ensure that certain reliability and resilience attributes of electric generation resources are fully valued."
The rule would allow "for the recovery of costs of fuel-secure generation units that make our grid reliable and resilient," according to Perry. Eligible units would have to "be able to provide essential energy and ancillary reliability service and have a 90-day fuel supply on site in the event of supply disruptions caused by emergencies, extreme weather, or natural or man-made disasters."
Coal and some electricity organizations have shown support for the NOPR, while natural gas industry groups have vehemently opposed it. It has also been criticized by several former FERC commissioners and chairmen, and by members of a House Committee on Energy and Commerce subcommittee.
One recent analysis concluded that subsidies included in the NOPR would cost as much as $10.6 billion a year, with most of the funds going to a handful of coal and nuclear companies.
http://www.naturalgasintel.com/articles/112687-in-first-act-as-ferc-chair-mcintyre-asks-for-nopr-extension
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New York’s Heralded Fracking Ban Isn’t All It’s Cracked Up to Be
Dec 8, 2017 | StateImpact Pennsylvania
By Kristen Lombardi
In 2014, Gov. Andrew Cuomo made a bold statement by banning hydraulic fracturing in the Empire State, declaring alongside his health commissioner that “no child should live near” a shale-gas well because of its potential harm.
The governor’s proclamation made him a hero among environmentalists and persona non grata in the oil and gas industry. Energy in Depth, an industry-funded website, criticized Cuomo for basing the moratorium on dubious science “to kowtow to Yoko Ono, Mark Ruffalo, and all of the environmental pressure groups in New York.”
In truth, though, the picture is murkier, and Cuomo’s ban is less than absolute. Moratorium notwithstanding, New York is still reaping the rewards of fracking, importing shale gas from neighboring Pennsylvania and preparing to process it in a mammoth power plant under construction 65 miles northwest of New York City.Listen: New York bans fracking but gobbles up Pennsylvania’s shale gas, Susan Phillips, StateImpact Pennsylvania.
“It goes to the heart of the apparent irony that New York State would say, ‘No shale gas coming out,’ but we’re allowing any amount of shale gas into the state,” said Anthony Ingraffea, an engineer at Cornell University whose work has tied fracking to various environmental ills, including climate change. By his calculations, drillers outside the state would have to tap 130 wells each year, on average, to supply the plant with enough gas to operate. That translates into thousands of fracked wells over the 40-year lifetime typical for such a facility.
“I’m using the polite word ‘irony,’” Ingraffea said. “I could also use the impolite word ‘hypocrisy.’”
A mass of panels and tanks, the 650-megawatt CPV Valley Energy Center is rising in this town of 7,000 people in the wooded hills of Orange County. Its 275-foot stacks tower above apple orchards and dairy farms.
The plant, a $900 million project of the Maryland energy company Competitive Power Ventures, stands at a nexus of new and expanding gas infrastructure here — much of it fed by fracking. Seven miles south, a compressor station that pumps gas to keep it moving squats amid houses. To the west, a pipeline stretches toward the Marcellus Shale fields in Pennsylvania. Construction on another one could begin soon pending a court order.
CPV's Valley Energy Center in Wawayanda, NY sits on 122 acres and would generate 650 megawatts of power. It will rely on Marcellus Shale gas from Pennsylvania.
The CPV plant, scheduled to go into service in early 2018, represents the leading edge of a broader trend in New York. It’s the first of two gas-fired power plants approved in the Hudson Valley. These plants, and 11 more that may come online across the state by 2020, collectively would add 5,708 megawatts of capacity to an electricity gridalready fueled 57 percent by gas. New York has a surplus of gas-generated capacity. Statewide, the demand for electric power has grown, on average, only .23 percent per year since 2004.
The gas boom comes at a time when the Cuomo administration is undertaking a major clean-energy initiative. The governor unveiled the plan in 2015, calling it a roadmap for “a clean, resilient, and affordable energy system.” His administration has vowed to double the amount of electricity generated by solar, wind and other renewable sources — to 50 percent, from the current 24 percent — while reducing greenhouse-gas emissions 40 percent below 1990 levels by 2030 — an aggressive target. Last year, a Cuomo press release described climate change as “a very real threat that continues to grow by the day.”
New gas plants would work against the state’s clean-energy goals, said Eleanor Stein, a former administrative law judge at the New York Public Service Commission who managed the initiative from 2014 to 2015. That plan may not prohibit new gas plants, she said, but building them will lock in fossil-fuel use for decades, boosting greenhouse gases as officials strive to cut them.
“We are in a state of emergency,” said Stein, now a climate law professor at Albany Law School. “Every year we don’t act is lost forever.”
Cuomo’s top energy advisers didn’t respond to multiple interview requests by the Center for Public Integrity and StateImpact Pennsylvania over the past month. A spokesman for the New York Public Service Commission declined to make senior officials available for an interview. Instead, he pointed to an agency order, issued in 2016, adopting a series of “deliberate and mandatory actions” to implement Cuomo’s energy plan. In the order, the commission recommends preserving New York’s carbon-free nuclear power plants as a bridge to clean energy, and recognizes that “significantly increased air emissions due to . . . the construction of new gas plants” would complicate the ability to meet carbon limits.
A CPV spokesman declined to comment and didn’t respond to a list of written questions. In a 2015 press release, the company touted its Wawayanda project’s “low emissions profile.” The highly efficient gas plant will replace older, less efficient facilities in New York, lowering carbon emissions by approximately 494,000 tons per year for its first 15 years, CPV says. “We are delighted to be bringing this project into construction at a time when the region is in need of new, clean electric generating capacity,” then-CEO Doug Egan is quoted as saying in the release.
Neither the company nor its Valley Energy Center has been a stranger to controversy. Last year, federal prosecutors brought criminal charges against a former CPV executive and a former Cuomo adviser for allegedly participating in a scheme involving bribery, extortion and fraud. The executive, according to the 36-page indictment, paid “hundreds of thousands of dollars in bribes” to the aide for help trying to secure a contract with the Cuomo administration for it to buy electricity produced by the plant, to no avail.
The case has yet to go to trial, casting a shadow over the project.
The plant has also been the focus of an escalating regulatory skirmish over a 7.8-mile pipeline planned to deliver gas to the facility. In September, state environmental regulators denied a permit needed for construction of the pipeline, setting off a chain of legal appeals. Last month, a federal court halted construction until a hearing could be held, threatening to leave the plant without a viable gas supply.
“It’s one of the most amazing infrastructure debacles, and nobody is paying attention,” said Stephen Metts of The New School, whose work includes mapping new gas plants and pipelines in New York.
Unusual vetting process
What little attention the Valley Energy Center is attracting today dwarfs the virtual silence that greeted its unveiling. In 2008, CPV, a developer primarily of gas-fired electricity in the Northeast, came to Wawayanda, pitching a state-of-the-art facility that would generate enough “clean, low emissions electricity” to power more than 600,000 New York homes. The town was conveniently located near a transmission line.
In New York, state regulators typically review power plants proposed by private developers. At the time, though, the committee that would have evaluated such infrastructure wasn’t in place because the law authorizing it had expired. CPV sought an environmental assessment of its proposal from the Town of Wawayanda Planning Board, a rare request for a part-time body that mostly considers subdivisions, strip malls and car washes, people involved in the process say. Some believed a board composed of residents didn’t have the expertise to examine a utility-scale project, but most of the board’s members – enticed by CPV’s promises of economic rewards — were eager to move ahead.
CPV offered the town tax and benefit payments for hosting its facility totaling $11 million over 20 years. Millions more would go toward local schools and fire districts, the company promised. All told, CPV said, the plant would infuse more than $52 million into the county over this period.
In 2009, the planning board’s review stalled after consultants hired by the town flaggedpotential problems with the site, such as designated wetlands and endangered-species habitat. CPV got around the roadblock by agreeing to do additional studies after the board had approved a draft of the plant’s environmental assessment. The town then fired the consultants who had raised concerns, replacing them with a team that would find no major environmental impacts.
“The town wanted the project,” said Karen McDonald, one of the consultants who lost her job. “They never did an assessment of the true costs.”
Planning board chair Barbara Parsons declined to comment on the process, as did the town’s attorney, David Bavoso. In regulatory filings, the town has said the CPV plant “completed a comprehensive review costing hundreds of thousands of dollars,” which resulted in design modifications that will limit environmental harm.
By the time most residents learned about the plant, it had already been approved. Community opposition didn’t gain momentum until 2014, when fracking became a contentious issue in New York and the moratorium was imposed. Feeling duped by what they considered a disingenuous fracking ban, the plant’s critics traveled to rallies in Albany and petitioned Cuomo.
In 2015, some residents sued the town of Wawayanda, claiming its planning board had carelessly assessed the plant’s environmental impacts — a claim the town has disputed in court hearings.
“People want to operate this facility, with all its environmental and climate implications, without studying it,” said plaintiff’s lawyer Michael Sussman.
At a state appellate court hearing in October, Sussman argued that New York had “radically changed its energy policy” since the plant was approved — grounds for a new environmental assessment. A lawyer for CPV responded that Cuomo’s fracking moratorium had no bearing on gas plants, like the one taking shape in Wawayanda, which would draw their fuel from other states. A decision is expected any day.
‘Red flags’
To its opponents, the CPV gas plant is the illegitimate progeny of pay-to-play dealings implicating a company executive and Cuomo’s “right-hand man,” in the words of federal prosecutors. In 2016, they secured indictments against Peter Galbraith Kelly, CPV’s former head of external affairs, and Joseph Percoco, Cuomo’s former executive deputy secretary, on six counts of bribery, extortion and fraud. The complaint charges that Kelly arranged for CPV to pay $287,000 in bribes to Percoco from 2012 to 2016 “in exchange for Percoco’s official assistance to benefit the company.”
According to the complaint, Kelly lobbied Percoco in an attempt to influence regulatory approvals and financing for the Wawayanda plant. Over the years, it’s alleged, the executive relied on legal perks to woo the aide — a $279 steakhouse lunch, a $2,748 fishing trip — before turning to bribes. Kelly is accused of creating what prosecutors call a “low-show” job for Percoco’s wife, who was paid $7,500 a month for doing little work.
In return, Percoco is accused of trying to help CPV land a lucrative agreement with the Cuomo administration, under which the state would buy power produced by the plant for 15 years. CPV valued such a contract at $100 million, according to the complaint.
Whether the alleged corruption enabled the plant’s approval is impossible to say. The federal complaint doesn’t answer that question, and prosecutors declined to discuss the criminal case, slated for trial in January.
CPV and Cuomo have said little since the indictments were announced last year. At the time, the governor called the charges against Percoco, a family friend, “a profoundly sad situation,” and said “those found guilty of abusing the public’s trust should and will be punished.” Governor’s Counsel Alphonso David ordered state agencies to suspend communications with CPV, including any final state regulatory approvals for its Wawayanda plant.
In a written statement, CPV described Kelly’s alleged conduct as “inconsistent with who we are,” and vowed to “continue our work in accordance with the high level of excellence our communities and partners have come to expect of us.” The indictment doesn’t link CPV itself to the alleged corruption. According to the government’s complaint, an unnamed former president for the firm told prosecutors its former CEO had “expressed concern about hiring the wife of a senior member of the Governor’s staff while the energy company was seeking extensive regulatory review of its power plant,” and had directed Kelly to get an ethics opinion from Cuomo’s office. That opinion never came, prosecutors allege.
The scandal has made plant critics deeply suspicious. Many can’t help but notice that the alleged bribery occurred while CPV was seeking critical state approvals such as air-pollution permits. Could that explain how state agencies let a project of this magnitude be handled by a town board? Or why state environmental regulators have seemed willing to excuse potential wetlands and endangered-species problems?
“There are big red flags that have no explanation other than corruption and big-money influence,” said Pramilla Malick, of Protect Orange County, whose house sits a quarter-mile from the compressor station. She and others have urged state officials to re-examine the gas plant and have voiced objections during the permitting of the Valley Lateral Project, a 16-inch pipeline planned to deliver 130 million cubic feet of gas a day to it. The pipeline, proposed in 2015 by Millennium Pipeline Company, sparked a protracted review by the New York State Department of Environmental Conservation over its possible impacts on wetlands and streams, culminating last summer in a six-hour public hearing and 6,000 written comments.
By September, state environmental regulators had denied the pipeline a permit on a conditional basis, pointing to what they called an “inadequate and deficient” climate analysis conducted by the Federal Energy Regulatory Commission, the regulator that approves new interstate gas pipelines.
FERC, which has long refused to take a comprehensive look at the climate effects of gas pipelines, said it simply relied on the town of Wawayanda’s environmental review – a position Cornell’s Ingraffea described as “absurd.”
Ingraffea, having pored over that review and the permit applications, said the company’s emissions calculations understate the plant’s climate footprint. CPV’s estimates have the facility pumping out 2.2 million tons of carbon dioxide annually, accounting for 7 percent of the New York power sector’s emissions, he said. This number doesn’t take into account the latest science on methane, a short-lived but exceptionally potent greenhouse gas released during drilling and transport of natural gas. Factoring in methane leaks, Ingraffea calculated that the plant would spew at least 3.3 million tons of greenhouse gases per year.
FERC has since overturned the state Department of Environmental Conservation’s permit denial for Millennium’s Valley Lateral pipeline. The department, whose appeal of FERC’s decision could be heard in federal court as early as January, said in a statement that it is “committed to ensuring the protection of New York’s natural resources, and will continue to vigorously defend its right to do so.” A spokeswoman for Millennium blamed the dispute on opposition to the CPV plant. The pipeline, she said, is “really the only thing standing between that plant running and not.”
Many plant opponents are preparing for defeat. Naomi Miller, a social worker from neighboring Middletown, fought CPV passionately for three years. In 2015, she and five others, including the actor James Cromwell, sat on crates outside the plant site and chained themselves together with bike locks, halting construction. The so-called Wawayanda Six were arrested for disorderly conduct. Last June, a county judge fined them each $375.
Construction has continued nonetheless. Miller – put off by what she called “the ambiguity of not allowing fracking in your state but allowing a plant burning fracked gas” — has moved to Vermont.
https://stateimpact.npr.org/pennsylvania/2017/12/08/new-yorks-heralded-fracking-ban-isnt-all-its-cracked-up-to-be/
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Court Lets N.Y. Gas Project Proceed While Feds Sort It Out
Dec 8, 2017 | E&E Energywire
By Saqib Rahim
A federal court is letting construction of a controversial pipeline begin while state and federal authorities duke it out in court.
A three-judge panel at the 2nd U.S. Circuit Circuit Court of Appeals yesterday said Millennium Pipeline Co. can immediately start work on the Valley Lateral Project, a natural gas pipeline in upstate New York, even though the state hasn't yet granted it a water permit.
The question before the court is whether Millennium needs it. New York denied the permit this year, as was its right under the Clean Water Act. But the Federal Energy Regulatory Commission overruled the state, saying its denial took too long and was thus invalid. That prompted New York to sue in federal court.
The case is expected to have far-reaching implications, as it'll clarify the balance of power between state and federal authorities on gas pipelines.
But the more immediate issue, this week, had to do with a bald eagle's nest close to the pipeline route.
New York's attorney general had asked the court to suspend construction for the duration of the case, saying the work would cause "irreparable harm" to the environment.
But this week Millennium argued to the court that it has to start immediately, because the eagle's official breeding season starts Jan. 1. FERC supported Millennium, saying any environmental impacts have been accounted for in the federal regulatory process.
The three-judge panel agreed and said Millennium can go ahead for now. The judges want to begin hearing the larger case as soon as Jan. 24.
U.S. Fish and Wildlife Service guidelines recommend a 660-foot buffer for a construction activity that's visible from an in-use nest. That's recommended for the breeding season, which is broadly defined in New York as Jan. 1 to Sept. 30.
Companies can build within that distance and during that time period, a FWS spokeswoman clarified. But the FWS recommends they get a permit to do so, to avoid liability later.
Millennium spokeswoman Michelle Hook said the company's taking precautions.
"We are NOT cutting any tree that has an eagle's nest. That tree will be off our right of way and will be untouched," Hook said by email. "We've had an eagle monitor out there for a few weeks checking the status of this unoccupied nest and will have an eagle expert out there during tree clearing as well."
The pipeline's opponents are hoping to show the nest is active and occupied. They say that would give them another legal tool in their efforts to get the pipeline canceled.
"Because the eagle has landed, it means Millennium can't construct the pipeline, stay or not," Richard Webster, legal director for Riverkeeper, said this week.
https://www.eenews.net/energywire/2017/12/08/stories/1060068473
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Va. Advances Mountain Valley Project With Permit Vote
Dec 8, 2017 | E&E Energywire
By Jenny Mandel
The Virginia State Water Control Board voted yesterday to approve a water quality certification for the Mountain Valley pipeline project, clearing the last major regulatory hurdle for a project that has been fiercely opposed by environmental groups.
The approval likely signals smooth sailing for the competing Atlantic Coast pipeline project, scheduled for a vote by the same body next week.
Project opponents were quick to condemn the decision yesterday, promising they would continue to fight the pipeline on a range of legal fronts.
In a 5-2 vote, Virginia's water board approved the Mountain Valley project late yesterday afternoon, hours after Virginia's Department of Environmental Quality issued a recommendation that the members vote in favor of the project. The board is charged with determining whether there is a "reasonable assurance" that water quality along the pipeline route would not be harmed during construction and pipeline operation.
The Mountain Valley pipeline, a $3.5 billion project being developed by Pittsburgh-based EQT Midstream Partners LP and a handful of other companies, is proposed to run 303 miles from northern West Virginia to southern Virginia carrying natural gas from the Marcellus and Utica shale formations.
The Federal Energy Regulatory Commission approved the project in October, greenlighting it at the same time as they approved the Atlantic Coast pipeline, a proposal for a 600-mile large-diameter pipeline to run along a largely similar route and serve markets in Virginia and North Carolina.
FERC's certificate approval for the two projects triggered a rare dissent on the then-three-member board. Commissioner Cheryl LaFleur wrote that the two projects potentially overlapped and federal regulators should have considered whether their total environmental impacts could have been reduced by combining them into a single project (Energywire, Oct. 16).
Since then, the West Virginia Department of Environmental Protection has waived its right to conduct water quality reviews for the two projects, opting not to use the authority available to them under Section 401 of the Water Quality Act (Energywire, Dec. 7).
With Virginia's Section 401 decision yesterday, the Mountain Valley pipeline project has cleared its last major regulatory step.
Environmental groups were quick to express their disappointment.
"Thousands voiced their opposition to this pipeline based on evidence that it cannot be built without violating the federal Clean Water Act and the board's obligation under Virginia law," said Tom Cormons, executive director of Appalachian Voices, following the vote. "DEQ created a rushed, haphazard process, limited the scope of the board's review and abdicated the state's authority to the Corps of Engineers for oversight of pipeline construction at almost 400 water crossings."
Cormons added, "The record demonstrates this project would ultimately violate the law. We are considering all options and expect the outcome will be determined in the courts."
Lorne Stockman, a senior research analyst with Oil Change International, said some 300 landowners along the proposed pipeline route have not signed easements that would allow the developers to build on their property and said those and other fights will continue.
The project is at the center of several lawsuits, including a challenge to the constitutionality of FERC's use of eminent domain authority for pipeline construction, and challenges on environmental and procedural grounds.
Cormons said yesterday that if the developer breaks ground on the project, "citizens along the entire route are prepared to watchdog every action, along every mile, every day of construction and afterwards, and compel agencies to act when violations inevitably occur."
https://www.eenews.net/energywire/2017/12/08/stories/1060068477
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PCA Contesting Penalties in DeRidder Explosion That Killed 3
Dec 8, 2017 | KATC News
By Lanie Lee Cook
Packaging Corporation of America is contesting the tens of thousands of dollars in penalties OSHA lodged against it for a February tank explosion that killed three people and injured seven.
The Occupational Safety and Health Administration penalized PCA with five "serious" safety violations and fines totaling $63,375 in the fatal accident, according to the agency's inspection database.
Three employees were climbing down from an elevated pipe rack when a tank exploded, "striking the employees and tossing their bodies 200 yards from the explosion," according to OSHA's narrative of the Feb. 8 incident. It happened during a shutdown of the facility, where corrugated cardboard boxes are produced.
OSHA noted PCA allowed workers to perform work on a gas system while methanol, turpentine and flammable vapors were present, according to its description of PCA's violations:
OSH ACT of 1970 Section (5)(a)(1): The employer did not furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees in that employees were exposed to fire and explosion hazards. On or about February 8, 2017 in the Pulp Mill at the Foul Condensate Tank (FCT), the employer allowed employees to perform shutdown (maintenance) work on all or part of the non-condensable gas (NCG) system where there was the presence of methanol and turpentine and flammable vapors, the employer did not isolate, drain and purge the tank.
Records related to the accident show PCA is contesting the fines — each worth $12,675 — and the case remains open and subject to change.
The federal Chemical Safety Board's investigation also remains open.
KATC Investigates found PCA has been repeatedly cited for safety violations at its facilities around the country — including at one plant that's seen five workers killed in the last decade. Read more on that here.
http://www.katc.com/story/37025340/pca-contesting-penalties-in-deridder-explosion-that-killed-3
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EPA Removes Climate Change References from Website, Report Says
Dec 8, 2017 | CNN
By Madison Park
References to climate change and the Environmental Protection Agency's use of renewable energy have been removed from several of its web pages, according to an analysis by the Environmental Data and Governance Initiative.
The group regularly monitors tens of thousands of federal environmental agency web pages to document what has been changed or scrubbed. It released a report Friday, noting changes to the website in the fall, including links to the EPA's climate change adaptation plan and policy that have been removed.Trump administration swaps 'climate change' for 'resilience' This is not the first time references to climate change have been cut from its website.
CNN reported previously that the Trump administration has been swapping out the phrase "climate change," while avoiding references to global warming. And in April, environmental groups were dismayed when climate change information was removed from the EPA site with a message that the page was being updated to "reflect the approach of new leadership"
EPA removes climate change information from website CNN has reached out to the EPA for comment.However, there are more than 5,000 results when the term "climate change" is searched on the EPA's website.Here are some of the changes reported by the Environmental Data and Governance Initiative: On the above page, several references to climate change have been removed. Previously, it had listed "climate change resilience" as one of the EPA's strategic plans in August. It had also contained two links to EPA's climate change adaptation plan and its policy statement on climate change adaptation, which are no longer there.
On another web page, the reference to how the EPA was the "first major federal agency to purchase renewable energy equal to 100% of its estimated annual electricity use nationwide" has been removed.That same statistic about how the EPA uses renewable energy equal to 100% of its estimated annual electricity use, has been edited out on another web page.
http://edition.cnn.com/2017/12/08/politics/epa-climate-change-references/index.html
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Some Agency Advisers Reject Smog. Pruitt Contradicted Them
Dec 8, 2017 | E&E Climatewire
By Scott Waldman
U.S. EPA Administrator Scott Pruitt worried observers recently when he appointed science advisers who question established science on the dangers of air pollution. But at a House hearing yesterday, he seemed to contradict those very researchers.
The agency has appointed to its influential advisory boards a variety of scientists who have downplayed the risks of fine particulate matter, or PM2.5, on human health.
In testimony yesterday to the House Energy and Commerce Committee, Pruitt seemed to acknowledge that even low levels of air pollution are harmful to human health and must be regulated under NAAQS, or the National Ambient Air Quality Standards.
"I agree with your position that it is a very important criteria pollutant that we need to regulate under the NAAQs in a very important way," Pruitt said to Rep. Raul Ruiz (D-Calif.).
That's supported by hundreds of studies, but at least five science advisers appointed by Pruitt dispute the credibility of federal air pollution levels. One of them said modern air is "too clean."
Ruiz pushed Pruitt on his rollback of the Clean Power Plan, which included some sections that assumed there were safe levels of fine particle pollutants.
"Do you believe it was appropriate to reverse the EPA's positions on the fine particle pollution because there is the assumption here that now the EPA is saying there is a threshold for that to happen?" Ruiz asked.
"We did not reverse it, congressman, and moreover, we are going to be introducing a replacement rule, too," Pruitt said.
Pruitt said his decision to roll back the Clean Power Plan was based on jurisdictional issues, not peer-reviewed science. However, when it comes to the science, Pruitt has tilted in the direction of those who question whether soot poses a grave risk to human health. Observers have compared EPA's focus on the alternative body of science around soot to its focus on the relatively small amount of doubt in mainstream climate science.
One study by two science advisers named by Pruitt received funding by the American Petroleum Institute. It was published in a journal called Regulatory Toxicology and Pharmacology, which some critics say is a favorable platform for the tobacco, fossil fuel and chemical industries.
Richard Smith, a statistician at the University of North Carolina, and S. Stanley Young, who is affiliated with the conservative Heartland Institute, are the authors, and they claim there's little evidence that air quality is connected with acute deaths. The research focuses on death data over about a decade in California. At a Heartland Institute gathering, Young claimed that his research "puts every other paper at risk for the claims that they have made." Smith told E&E News that EPA asked him to submit his name for consideration as a science adviser.
In the study, the authors claim their work disproves the need for Obama-era clean air regulations.
"The national benefits of recent tightening of the ozone and PM2.5 standards may have to be re-assessed," the authors write.
For many years, policymakers and public health experts have treated air pollution as a serious health concern. Under Obama, EPA said, "an extensive body of scientific evidence indicates that breathing in PM2.5 over the course of hours to days (short-term exposure) and months to years (long-term exposure) can cause serious public health effects that include premature death and adverse cardiovascular effects."
The paper by Smith and Young comes to a different conclusion. It asserts that there is no evidence that deaths were caused by air pollution in California.
"Neither PM2.5 nor ozone added appreciably to the prediction of daily deaths," the authors wrote. "These results call into question the widespread belief that association between air quality and acute deaths is causal/near-universal."
That assertion stands in contrast to a large body of research. Thousands of papers show that fine particle pollution is harmful to human health, said Arden Pope, a professor at Brigham Young University who has studied the environmental economics of air pollution. The overwhelming evidence is that fine particulate air pollution, especially from combustion sources, is harmful to humans. The evidence has grown over the last 10 or 15 years, he said.
"All of the respectable reviews of the literature find basically the same thing, and that is that fine particulate air pollution contributes to respiratory and cardiovascular disease, and the effect is certainly smaller than cigarette smoking, but it's real, it's observable, you can see it in the data and we're trying to understand it more as we go," Pope said.
Two science advisory boards at EPA are now chaired by researchers who question those findings. Michael Honeycutt, now leading the Science Advisory Board, has expressed doubt about the science behind ozone regulations. Robert Phalen, director of the Air Pollution Health Effects Laboratory at the University of California, Irvine, and a member of the agency's advisory board, has stated that the risks of particulate matter are small. He has also argued that today's air is "a little too clean for optimum health." Louis Anthony Cox Jr., who chairs the Clean Air Scientific Advisory Committee, has denied the negative health effects of smog.
The PM2.5 study by Smith and Young is the type of research that could be used to challenge Obama-era regulations. Other research that downplays the risk of soot was used by the Trump administration to reconfigure the economic effect of the Clean Power Plan, according to Steve Milloy, a former member of Trump's EPA transition team. In one chart, where the administration reconfigures the cost of the rule so that PM2.5 is not considered as harmful to human health, the economic benefits of the Clean Power Plan are reduced by $29 billion. The agency under Obama estimated that cleaner air would result in $55.5 billion under the Clean Power Plan.
Yesterday, Milloy seemed stunned that Pruitt had said that PM2.5 poses a health risk.
"He must have been confused," Milloy said. "With the Clean Power Plan, if you get rid of the assumption that particulate matter kills, then all of those benefits — alleged benefits — go away, and the costs exceeds the benefits by a substantial amount, and that's the end of the rule. That's the economic justification; I can't imagine he intended to back off that."
Pruitt's comments suggest he may not be willing to toss aside the science around smog, said John Walke, director of the clean air program at the Natural Resources Defense Council. It's a strange contrast to his science advisers, he said.
"Before today, there was a lot more reason to fear that the Steve Milloy view of the world, denying the harmfulness of PM2.5, had a very firm foothold at EPA," Walke said. "After today, I think you have to say that's wrong."
Pruitt claimed that science is "central and core" to the agency's function. He said researchers on the science advisory boards will be essential in creating a body of work that the agency could use in rulemaking.
"When we engage in rulemaking at the agency, we build a record, and scientists at the agency, whether it's in the chemical shop, the air program offices, it's important that we hear from our scientists internal to the agency but also those advisory committees in building the record; that's a point of emphasis," he said.
https://www.eenews.net/climatewire/2017/12/08/stories/1060068481
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In Major Policy Shift, EPA Defers To Industry On Key NSR Permitting Test
Dec 8, 2017 | Inside EPA
By Dawn Reeves
In a major policy shift, EPA is dropping its long-running position that the agency can use its own projections of a facility's potential future emissions to trigger Clean Air Act new source review (NSR) permitting requirements and will now adopt industry's approach that will defer to companies to assess whether they believe NSR applies.
The change, outlined in an eight-page memo that EPA quietly posted to its website Dec. 7, will have major regulatory and legal ramifications. Environmentalists have long warned that industry's position would mean far fewer facilities seeking NSR permits to reduce emissions, and the shift also makes it likely that the administration will now drop its defense of the prior long-running policy in a pending Supreme Court case.
EPA Administrator Scott Pruitt signed the memo and sent it to all 10 agency regional administrators, and says the decision is part of his ongoing effort to overhaul and streamline the NSR program.
Dropping years of policy precedent, Pruitt says the agency will no longer “substitute its judgement [sic] for that of the owner or operator by 'second guessing' the owner or operator's emissions projections.”
In a bid to shield the memo from potential lawsuits, he says it is “not a rule or regulation, and the guidance it contains may not apply to a particular situation based upon the individual facts and circumstances. This memorandum . . . is not legally enforcement. This memorandum is not final agency action.”
The memo, titled “New Source Review Preconstruction Permitting Requirements: Enforceability and Use of the Actual-to-Projected-Actual Applicability Test in Determining Major Modification Applicability,” is being issued “in accordance with presidential policies for streamlining regulatory permitting requirements,” Pruitt says.
It addresses EPA's policy on performing emissions modeling projections to determine whether NSR applies to new construction or modifications to an existing facility. NSR affects areas out of attainment with national ambient air quality standards and can require installation of strict, expensive air pollution control technology. Prevention of significant deterioration is the less-stringent NSR equivalent for attainment areas.
Under its prior long-running policy, EPA said it had authority to enforce NSR permits based on projected emissions increases before a facility seeking air permits begins construction, and not actual emissions levels after construction takes place, affirming what EPA says is a core principle of the NSR program. That meant the agency could require NSR for a facility it it projected a need for NSR, regardless of a company's projections.
Power companies have waged legal battles to challenge that policy as unfair, and Pruitt's memo acknowledges ongoing “disputes” on the so-called potential-to-emit in enforcement cases in the federal courts “that began before EPA initiated the current review of the NSR program. The United States is represented in those matters by the Department of Justice and the Office of Solicitor General. As those cases proceed toward resolution, the EPA continues to have implementation and oversight responsibilities for the NSR program.”
Litigation Shift
The memo may signal that EPA will shift is position in a high-profile NSR case brought by Detroit Edison (DTE), DTE, et al. v. United States, et al., that the Supreme Court is slated to consider at its Dec. 8 conference to determine whether it will hear it inits next term.
Until now, the agency has been opposing court review of the case that is challenging its NSR enforcement against the company, which has taken the same potential-to-emit position that EPA is now adopting, and goes against two appellate court victories for the agency.
Pruitt in the memo points in particular to the two appellate decisions issued in 2013 and 2017 from the U.S. Court of Appeals for the 6th Circuit in U.S. v. DTE Energy Co. -- decisions that are the subjects of the company's pending Supreme Court appeal. Those rulings “have created uncertainty regarding the applicability of NSR permitting requirements in circumstances where the owner or operator of an existing major stationary source projects that proposed construction will not cause an increase in actual emissions that triggers NSR,” Pruitt writes.
Pruitt says EPA will review the potential-to-emit and other aspects of the NSR program as part of its regulatory reform efforts and that decisions in ongoing enforcement matters will be made case-by-case.But in the meantime the agency will allow owner/operators to “actively manage emissions from the project on an ongoing basis to prevent a significant emissions increase or a significant net emissions increase from occurring.”
Environmentalists and the Obama EPA have long argued that such an approach effectively allows projects that would otherwise be subject to NSR to artificially deflate emissions for five years, and then run at full capacity, as a way to avoid the five-year statute of limitations for NSR.
The memo says that when an owner/operator estimates that its modification will not increase emissions enough to trigger NSR, “the EPA intends to focus on the level of actual emissions during the 5- or 10-year recordkeeping or reporting period after the project for purposes of determining whether to exercise its enforcement discretion and pursue and enforcement action. That is, the EPA does not presently intend to initiate enforcement in such future situations unless post-project actual emissions data indicate that a significant emissions increase or a significant net emissions increase did in fact occur.”
Referencing the 6th Circuit panel ruling in the first DTE decision, the memo says that although a majority of the court held that EPA can pursue enforcement of its projected potential emissions regardless of the actual post-project emissions “the court decision does not compel the EPA to pursue enforcement in such situations. The EPA has substantial discretion regarding prosecution of violations of the [Clean Air Act] and the first DTE opinion doe not limit the EPA's discretion. . . . Thus, pending review of these issues by the courts and the EPA, the agency does not intend to pursue new enforcement cases in circumstances such as those presented in the DTE matter.”
Pending Petition
In DTE's cert petition pending before the high court, the company is making nearly identical arguments to the shift in policy laid out in the memo.
One of the issues the company, represented by Hunton & Williams, argues in a Nov. 15 brief is that, “At bottom, the Government wants to punish DTE for accurately predicting that its 2010 projects at Monroe 2 would not cause a significant increase in emissions and thus would not require an NSR permit.”
Recently sworn-in EPA Office of Air & Radiation Assistant Administrator William Wehrum previously worked at Hunton & Williams before joining the agency last month.
EPA filed a Nov. 1 brief in the case urging the high court to reject DTE's cert petition and noted then it was conducting a review of the NSR program.
The Sierra Club also filed a Nov. 1 brief that continued to defend preconstruction mandates for obtaining NSR permits, based on projected emissions, arguing that DTE's plan to only use actual emissions allows them to avoid judicial review for violations since adequate data may not be available until after the five-year statute of limitations passes.
The appeal contests a Jan. 10 ruling from the 6th Circuit against DTE, which did not get an NSR permit for its Monroe plant boiler project even though it projected it would result in higher emissions. In reality, emissions fell due to lower demand than expected, and DTE says this means it did not need an NSR permit.
https://insideepa.com/daily-news/major-policy-shift-epa-defers-industry-key-nsr-permitting-test
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Pruitt Backs Off Enforcement of Power Plant Program
Dec 8, 2017 | E&E Greenwire
By Sean Reilly
U.S. EPA Administrator Scott Pruitt is instructing agency officials to effectively drop enforcement of one key facet of the New Source Review program, in what could be a prelude to broad changes in the handling of air permits for both new plants and expansions of existing facilities.
In a memo released last night, Pruitt told EPA regional administrators the agency is launching a review of NSR requirements. It will assess opportunities "to make improvements" by clarifying or revising the relevant regulations, provide technical support and oversight for states that administer the program, and evaluate enforcement efforts.
On that last score, Pruitt said EPA will no longer challenge companies' pre-construction forecasts of expected air pollution increases stemming from a particular project.
"The EPA does not intend to substitute its judgment for that of the owner or operator by 'second-guessing' the owner or operator's emissions projections," Pruitt wrote.
As the memo acknowledged, that issue has been at the crux of long-running litigation before the 6th U.S. Circuit Court of Appeals over DTE Energy Co.'s overhaul of a generating unit at its coal-fired Monroe power plant in southeastern Michigan.
The litigation, initially brought by the Detroit-based utility in 2010, has been closely watched in business circles. The appeals court has twice sided with EPA over whether the upgrades to the 3,300-megawatt plant count as a "major modification" that should have brought additional regulations.
DTE has argued the overhaul was routine maintenance that didn't warrant a pre-construction permit under the NSR program. In its second decision on the case this past January, however, a three-judge panel on the 6th Circuit ruled 2-1 that EPA had a right to question the company's pre-construction emissions forecast and that the actual emissions following the project's completion were irrelevant (Greenwire, Jan. 11).
As a rule, EPA will no longer make such challenges unless there is "clear error" or the companies don't follow procedural requirements, Pruitt wrote in yesterday's memo. DTE has since appealed the 6th Circuit's decision to the Supreme Court, which could announce as early as Monday whether it will take the case. In the meantime, EPA "does not intend to pursue new enforcement cases in circumstances such as those presented in the DTE matter," he added.
At the Natural Resources Defense Council, Clear Air Director John Walke termed Pruitt's position "outrageous."
"The practical implications are that coal-burning power plants get away with massive emission increases that they falsely project and the EPA ignores" because of Pruitt's directive against second-guessing, Walke said in an interview this morning.
Attempts to get comment from the Edison Electric Institute, which represents investor-owned utilities like DTE, were unsuccessful this morning.
In a recent report to the White House, Pruitt had called for a re-evaluation of the NSR program and announced formation of a task force to study the issue (E&E News PM, Oct. 25). He again alluded to the task force at a hearing yesterday before the House Energy and Commerce Subcommittee on Environment but volunteered little other information on its activities.
Employees in EPA's press office did not respond to emailed requests yesterday and today from E&E News for a list of the task force's members and an explanation of its exact purview.
https://www.eenews.net/greenwire/2017/12/08/stories/1060068533
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EPA Faults 3 States for Failing to File Ozone Cleanup Plans
Dec 8, 2017 | E&E Greenwire
By Sean Reilly
U.S. EPA is poised to formally fault three states for failing to submit revamped cleanup plans for meeting its 2008 ground-level ozone standard.
The "findings of failure" will apply to New Jersey, Illinois and California. The states failed to meet a January 2017 deadline for turning in revised implementation plans for five areas that were downgraded in May 2016 from "marginal nonattainment" to "moderate nonattainment" for the 75 parts per billion standard, according to a final rule set for publication in Monday's Federal Register.
On paper, at least, EPA's decision carries the threat of mandatory sanctions, such as a loss of federal transportation grants. If any of the three states is still falling short after another two years, EPA is also required to impose a federal cleanup plan.
The five areas in question: the New York City metro area, which includes northern New Jersey; the Chicago-Naperville area; and all or parts of Kern County, Mariposa County and Nevada County in California. Under the Clean Air Act, the three states will have 60 days to challenge EPA's decision before the U.S. Court of Appeals for the District of Columbia Circuit.
Ozone, the main ingredient in smog, irritates lungs and is linked to asthma attacks in children and added breathing difficulties for people with emphysema and other chronic respiratory problems.
EPA's continuing push to enforce the 2008 ozone limit overlaps with its halting start to implementation of the stricter 70-ppb standard put in place in October 2015 (Greenwire, Nov. 7).
The agency is being sued by 14 Democratic-led states and a coalition of public health and environmental groups for missing this October's deadline to make all attainment and nonattainment designations for that tighter limit. Both lawsuits were filed this week; attorneys for EPA have not yet responded in court (E&E News PM, Dec. 5).
https://www.eenews.net/greenwire/2017/12/08/stories/1060068519
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