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ACC AM 2/19/2018
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(ACC Mentioned) Jack Gerard To Step Down As Head Of Powerful American Petroleum Institute
Feb 19, 2018 | The Washington Post
By Steven Mufson
Jack Gerard announced Wednesday he would step down as head of the American Petroleum Institute, a powerful lobbying association representing a wide variety of oil and natural gas companies. -
(ACC Mentioned) The LyondellBasell-A. Schulman Merger Illustrates America's Shale-Gas-Driven Chemicals Boom
Feb 19, 2018 | Forbes
By David Blackmon
The announcement by LyondellBasell Industries that it is acquiring rival A. Schulman Inc. for $2.25 billion is another in a long line of positive indicators on how affordable prices for natural gas are helping to grow the U.S. economy. -
(ACC Mentioned) Senate Democrats Expand Probe Of Pruitt's EPA Advisory Panels Overhaul
Feb 16, 2018 | Inside EPA
By Maria Hegstad
Senate Democrats are expanding their probe of EPA Administrator Scott Pruitt's overhaul of the agency's advisory panels policies that critics say boosts industry influence on the committees, asking the Government Accountability Office (GAO) to weigh new information about whether some panel are consistent with legal requirements. -
US EPA : Highest Fees For Risk Evaluation Of Existing Chemicals
Feb 19, 2018 | Chemical Watch
By Julie A Miller
The US EPA has published a proposal for collecting industry fees to help pay the cost of chemical reviews under the revised TSCA. -
EPA Delay of Formaldehyde Limits for Wood Products Overturned
Feb 19, 2018 | BNA Daily Environment Report
By Steven Gibb
Lumber companies and other manufacturers using wood must immediately meet formaldehyde emissions limits for their products after a federal judge ruled Feb. 16 that the EPA's attempt to postpone the standards was illegal. -
Judge Rejects EPA Formaldehyde Rule Delay, Admonishing 'Waiver' Claim
Feb 16, 2018 | Inside EPA
By Dave Reynolds
A federal district court judge has strongly rejected the Trump administration's final rule delaying by one-year implementation of an Obama-era measure setting emissions standards for formaldehyde from wood products, finding that the delay exceeds EPA's authority under a 2010 law directing the agency to craft and expeditiously implement the standards. -
California Targets Fluorochemicals in Carpets, Rugs
Feb 19, 2018 | BNA Daily Environment Report
By Carolyn Whetzel
Carpet and rug manufacturers may need to rethink using per- and polyfluoroalkyl substances (PFAS) as stain and soil repellents to sell their products in California. -
Steelmakers Seek Stricter EPA Rule to Keep Mercury Out of Plants
Feb 19, 2018 | BNA Daily Environment Report
By Pat Rizzuto
U.S. steelmakers want the EPA to tighten a draft mercury reporting rule to help them keep the toxic metal out of their supply chains. -
Pair of U.S.-to-Mexico Gas Export Projects Receive U.S. FERC Greenlight
Feb 16, 2018 | Natural Gas Intelligence
By David Bradley
A pair of separate but related pipeline efforts intended to support natural gas exports to Mexico, the Texas Eastern Transmission (Tetco) South Texas Expansion Project (STEP) and Pomelo Connector LLC's Pomelo Connector Pipeline Project, were each granted certificate authorization for construction by FERC Thursday. -
Phillips 66 Mulls Another Cracker For CP Chem Joint Venture – CEO
Feb 16, 2018 | ICIS
By Al Greenwood
US-based Phillips 66 remains open to developing another ethane cracker for its Chevron Phillips Chemical (CP Chem) joint venture, the refiner's CEO said. -
EPA Can't Waive Air Pollution Control Requirements, Court Says (1)
Feb 19, 2018 | BNA Daily Environment Report
By Jennifer Lu
The EPA can't let areas with long-standing and severe ozone problems avoid their obligations to clean the air and relax pollution-reduction efforts required to meet air quality standards set in 1997, a federal appeals court said. -
Bipartisan Senate Group Offers EPA Path to Implement Coolant Deal (1)
Feb 19, 2018 | BNA Daily Environment Report
By Abby Smith
A bipartisan group of senators is aiming to give the EPA a pathway to implement a global deal limiting potent greenhouse gas refrigerants. The move could help tip the scales as the Trump administration weighs whether to support the deal. -
Backers Of HFC Amendment Hopeful Despite Exit Of White House Ally
Feb 16, 2018 | PoliticoPro
By Eric Wolff
The exit of a White House energy adviser this week may slow progress toward Senate ratification of a treaty to reduce emissions of hydrofluorocarbons, a potent climate change pollutant, but it doesn't mean the measure is dead, advocates say. -
D.C. Circuit Rejects Obama-Era Policy For Revoking Older Ozone NAAQS
Feb 16, 2018 | Inside EPA
By Stuart Parker
The U.S. Court of Appeals for the District of Columbia Circuit has largely ruled against the Obama EPA's policy for revoking outdated federal ozone standards, requiring changes to the agency's approach for removing old standards and setting new requirements for how the agency will implement the 2015 ozone limit. -
Utilities Seek Revised Ozone Designations Based On 'Exceptional Events'
Feb 16, 2018 | Inside EPA
By Stuart Parker
Electric utility groups are calling on EPA to revise several of its proposed designations of areas violating the agency's 2015 ozone national ambient air quality standard (NAAQS) and change them to attainment based on air pollution associated with “exceptional events” such as wildfires that increase ozone levels. -
Court Gives Greens Win On '08 Ozone Rule Implementation
Feb 19, 2018 | PoliticoPro - Whiteboard
By Alex Guillen
The Obama administration wrongly revoked the 1997 ozone standard when it wrote a 2015 rule to implement the 2008 ozone standard, a three-judge panel of the D.C. Circuit Court of Appeals ruled today in a win for environmentalists.
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Environment News
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(ACC Mentioned) Jack Gerard To Step Down As Head Of Powerful American Petroleum Institute
Feb 19, 2018 | The Washington Post
By Steven Mufson
Jack Gerard announced Wednesday he would step down as head of the American Petroleum Institute, a powerful lobbying association representing a wide variety of oil and natural gas companies.
Gerard has been running API for 10 years, a period in which crude oil prices have lurched from less than $30 a barrel to $140 a barrel and back down again. The period covered the entire presidency of Barack Obama, a frequent target of Gerard’s over policy differences, and the first year of the Trump presidency, during which he pressed for a tax bill favorable to the industry.
He has pushed successfully for lifting restrictions on crude oil exports, speeding permits for natural gas export facilities and rapidly restarting of offshore drilling in the Gulf of Mexico in the wake of the BP oil spill. He has also fought against higher taxes, the elimination of long-standing tax breaks for the industry, and the Dodd-Frank financial bill’s requirement that oil and mineral companies divulge overseas payments as part of an effort to foster transparency and discourage corruption.
Gerard is one of the highest paid association heads in Washington. In 2015 he earned $6.3 million from API and its affiliates in 2015, according to the Internal Revenue Service Form 990 for the group. He will remain until his contract ends in August.
“We have accomplished what few would have imagined: important public policy victories at all levels of government, and a revitalized association that has expanded globally and added significant strength to its advocacy capabilities,” Gerard said in a statement.
Yet many people both in and out of the oil industry have felt Gerard spent too much of the group’s money supporting Republicans. According to opensecrets.com, 85 percent of the money API gave to congressional candidates went to Republicans. Two prominent exceptions have been Sens. Heidi Heitkamp (D-N.D.), whose state is a leading fracking state, and Joe Manchin III (D-W.Va.), whose state produces large amounts of coal.
API has a budget of about $250 million, and it has spent lavishly on public advertising campaigns. Often it has sought to conceal or minimize its role. It has advertised under names like “Energy Nation,” “Energy Citizens,” “EnergyTomorrow” or “the People of America’s Oil and Natural Gas Industry.” In the ads, ties to API are duly noted, albeit usually in small print.
The strategy, Gerard said in a 2012 interview, was to influence lawmakers by mobilizing their constituents.
“If we’re concerned about a particular member [of Congress], we will educate that constituency and encourage people to weigh in with their elected official,” he said. “Congress is a lagging indicator. Congress is responsive to the American people. That’s why a well-educated electorate is a key to sound policy.”
Earlier this month, Gerard delivered his annual state of energy speech to an invited audience at the Ronald Reagan Building and International Trade Center on Pennsylvania Avenue, highlighting the slogan “energy is powering past impossible.” His prominent guests included Manchin, House Natural Resources Committee Chairman Rep. Rob Bishop (R-Utah), House Energy and Commerce Committee Chairman Rep. Greg Walden (R-Ore.), leaders of the Navajo Nation and three affiliated tribes of North Dakota, the president of the Iron Workers Union and the chief executive of the Noble Corp., a drilling company.
He has opposed many environmental regulations, though API issued its own guidelines for limiting methane emissions from fracking wells.
Raised in Mud Lake, Idaho, outside the 140-year-old Mormon stronghold of Idaho Falls, Gerard is the son of a John Deere salesman and a teacher. He graduated from George Washington University after finishing his mission work in Sydney. He worked for Idaho Republicans Rep. George Hansen and Sen. James A. McClure, the former chief of the Senate Energy and Natural Resources Committee, who pushed to privatize federal lands, promoted the Strategic Petroleum Reserve and was one of 11 senators to vote against the Clean Air Act of 1990.
After McClure retired, he and Gerard formed a lobbying firm. Gerard left that to run the National Mining Association and later the American Chemistry Council.
https://www.washingtonpost.com/news/energy-environment/wp/2018/01/17/jack-gerard-to-step-down-as-head-of-influential-american-petroleum-institute/?utm_term=.d5ad99f1dc3f
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Feb 19, 2018 | Forbes
By David Blackmon
The announcement by LyondellBasell Industries that it is acquiring rival A. Schulman Inc. for $2.25 billion is another in a long line of positive indicators on how affordable prices for natural gas are helping to grow the U.S. economy.
LyondellBasell has focused its business on the manufacture of polymers targeting the automotive industry, and now believes the acquisition of A. Schulman will allow it to diversify its business into what it calls "high-growth end markets" like agriculture, electronics and appliances, and building and construction. As the U.S. economy continues to grow at a rapid pace, LyondellBasell hopes to take advantage as a supplier to these high-growth sectors.
Few sectors of the U.S. economy have been on a growth trajectory higher than that of the chemicals and plastics industry over the last half-decade. This is an industry that saw a very high degree of flight of capital investment overseas during the 1990s and 2000s, as tight supplies and high prices for natural gas — the industry's major feed stock — made it far cheaper to invest in new plant and equipment in other countries. But with the discovery of massive natural gas shale plays like the Haynesville in Louisiana and the gigantic Marcellus in Pennsylvania/Ohio/West Virginia, the concerns about high prices or lack of adequate domestic supplies have dissipated.
In a December 2017 report titled "U.S. Chemical Investment Linked to Shale Gas: $185 Billion and Counting", the American Chemistry Council (ACC) reports that, as of December, it has identified 317 new projects that will either expand existing chemical plants or build new ones in the United States. Of those, 48 percent have been completed or are currently under construction, 44 percent are in the planning phase, and the status for the remaining 8 percent is currently unknown.
One of the most compelling findings in the ACC report is that "Fully 63 percent of the announced investment is by firms based outside the U.S." Thus, the sea change in U.S. natural gas supply and prices during this decade has completely transformed this major industry from one where U.S.-based companies were fleeing to invest billions in capital dollars overseas to one in which companies based overseas are competing with U.S.-based firms to invest in new plant and equipment in the United States.
The ACC makes clear that domestic public policy will play a major role in determining whether this rush to invest in the U.S. will become a sustaining feature of the American economy. It lists the following factors as being critical:
· Access to oil and natural gas reserves on federal, state, and private lands;
· Continuing state-based regulation of unconventional oil and gas production;
· Ensuring a timely, transparent, and efficient regulatory permitting process for manufacturing projects and investments, such as new plants and expansions;
· Expediting the building of infrastructure, such as pipelines, that links energy production to chemical facilities;
· Maintaining accelerated depreciation schedules for chemical industry investments in new plants/equipment;
· Expanding access to foreign markets for U.S. goods.
It is probably not coincidence that all of the factors listed above are featured objectives laid out in the Trump Administration's plans for energy policy and U.S. "Energy Dominance." It seems likely that the synergy between the needs of the chemical industry and the goals of the Trump Administration played a significant role in LyondellBasell's decision to expand its stake in the U.S. economy with its major acquisition, which basically doubles the company's revenues an asset base.
The merger is just one more example of how the abundance and affordability of U.S. shale natural gas, combined with pro-growth public policies, is making a real difference in the growth of America's economy.
https://www.forbes.com/sites/davidblackmon/2018/02/16/the-lyondellbassella-schulman-merger-illustrates-americas-shale-gas-driven-chemicals-boom/#1c64b71526fb
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(ACC Mentioned) Senate Democrats Expand Probe Of Pruitt's EPA Advisory Panels Overhaul
Feb 16, 2018 | Inside EPA
By Maria Hegstad
Senate Democrats are expanding their probe of EPA Administrator Scott Pruitt's overhaul of the agency's advisory panels policies that critics say boosts industry influence on the committees, asking the Government Accountability Office (GAO) to weigh new information about whether some panel are consistent with legal requirements.
Sens. Tom Carper (D-DE), the ranking member of the Senate Environment and Public Works Committee, and Sheldon Whitehouse (D-RI), in a Feb. 14 letter ask GAO to expand its ongoing review of EPA's advisory committee to consider whether past administrations ignored staff's advice on panel members, whether EPA's Science Advisory Board (SAB) has “adequate policies and procedures to vet nominees for compliance with the Federal Advisory Committee Act [FACA], the Ethics in Government Act, and other applicable rules”; and whether there is “increased risk that EPA will appoint representatives to its boards in violation of applicable law and regulations” when staff's advice is ignored.
They also ask GAO to assess whether Pruitt's advisory panel process and appointments are “consistent with the directive and” FACA. Pruitt in October announced the new policy that bars any advisory committee member from receiving an EPA grant, which has since been used to remove some advisors. Supporters say it provides more balance to advisory panels, but critics claim it makes it easier to appoint pro-industry figures to the committees.
The senators provide GAO with a series of briefing papers that EPA staff generated for Richard Yamada -- the top political appointee in the agency's research office -- regarding various options for renewing the terms of, or adding new members to EPA's Clean Air Scientific Advisory Committee (CASAC). In particular, the senators focus on two scientists that Pruitt appointed to CASAC last fall.
CASAC, an advisory committee created in the Clean Air Act, is required by statute to consist of exactly seven members, including a representative of state air agencies, a medical doctor and a member of the National Academy of Sciences (NAS). Before Pruitt's appointments, CASAC member Ana Diez Roux fulfilled both the medical doctor and NAS requirements, and her term expired last September 30. Hers was also the only term expiring at that point.
According to the briefing documents attached to the senator's letter, staff recommended that Trump EPA officials extend her term or appoint one person who could fulfill both roles, proposing several individuals.
Pruitt instead chose to remove two CASAC members before their terms expired and replace them and Diez Roux -- dean and distinguished professor of epidemiology of Drexel University's public health school -- with new appointments, including two individuals that staff, in later briefing documents, warned against.
“Staff concluded that one of these candidates, Dr. Tony Cox, a private consultant who had previously done work for ExxonMobil, the American Chemistry Council and the American Petroleum Institute, had a possible financial conflict of interest, a possible appearance of a lack of impartiality, and lacked scientific experience,” the senators write.
Senators' Concerns
The senators have previously raised concerns about Cox after receiving staff briefing documents. Last month, they sought answers from Pruitt on the selection process of Cox and a new SAB member, Stanley Young. The senators raised concerns in their January letter to Pruitt regarding Cox and Young's potential financial and ethical conflicts of interest, as well as their perceived lack of expertise.
In their latest letter to GAO, they focus on a second new CASAC appointee, Larry Wolk, who they write “was criticized for having 'no direct experience in health effects of air pollution,' among other things. Staff also warned that the appointment of both individuals would actually decrease geographic diversity on CASAC, undermining a stated goal” of Pruitt's new policy,” they say.
And staff warned against appointing a new member as CASAC's chairman, but Pruitt appointed Cox chairman against that advice as well.
Staff recommended in a Sept. 14, 2017, briefing paper for Yamada that Pruitt appoint one of two existing CASAC members as the committee's chair because “[t]here would be little to no learning curve, allowing CASAC to operate with minimal disruption,” as existing members are already aware of “FACA rules, how CASAC operates, and portfolio of ongoing CASAC work.”
In the same document, staff urged Pruitt not to remove anyone from CASAC, as would be needed to have two separate people fulfilling the statutory requirements that CASAC members include a medical doctor and NAS member. House science committee Republicans had questioned Diez Roux filling both roles, for unexplained reasons.
“Appointing two new members would require terminating an existing CASAC member's term early,” staff reminded Yamada in the briefing. “Negative reaction from the media and public could be severe. Ending a CASAC member's term early could be perceived as firing that member.”
The senators' latest request follows EPW Democrats' request last November that GAO expand its review of EPA's advisory committee policies and practices to include Pruitt's policy changes.
GAO originally accepted a general request from House and Senate Democrats into the policies and practices of EPA advisory committees under Pruitt last summer, in the wake of Pruitt's decisions to remove all members of EPA's Board of Scientific Counselors whose terms expired last spring, regardless of whether they were eligible to serve a second term, as had been long customary practice.
https://insideepa.com/daily-news/senate-democrats-expand-probe-pruitts-epa-advisory-panels-overhaul
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US EPA : Highest Fees For Risk Evaluation Of Existing Chemicals
Feb 19, 2018 | Chemical Watch
By Julie A Miller
The US EPA has published a proposal for collecting industry fees to help pay the cost of chemical reviews under the revised TSCA.
The law authorises the agency to set a fee schedule that will collect an amount equal to 25% of the estimated cost of assessing chemicals, up to an annual cap of $25m.
The EPA estimates it will collect $20.05m in fees annually. The proposal, published on 7 February, says it "is intended to fully recover the amount specified in the statute".
The EPA calculates its annual costs for its chemical review activities – including new chemical evaluation, prioritisation and risk assessment of existing chemicals, as well as evaluation of confidential business information (CBI) claims – at $80.2m. Had the agency calculated a higher estimate, it could have set fees higher, guaranteeing that it would collect the maximum $25m.
Who pays what
The original TSCA capped fees at $100 for small business entities and $2,500 for larger companies, and the EPA has charged that amount for each pre-manufacture notice (PMN), significant new use notice (SNUN), and certain exemption applications. The fees generated about $1.1m annually, which was returned to the treasury rather than going into the agency's budget as the new fees will.
The EPA now proposes charging:
· $10,000 for evaluating data submitted under a test order, $32,000 for a test rule and $25,000 for a consent agreement, accounting for 3.5% of estimated costs;
· $16,000 for each PMN, SNUN and microbial commercial activity notice (MCAN), covering 29% of estimated costs;
· $4,700 for evaluating requests for exemptions such as low-volume or test marketing exemptions, covering 89% of the cost; and
· $1.35m for reviewing a chemical the EPA selects for risk evaluation under section 6, which the agency estimates will cover 35% of the actual cost and "result in the bulk of the fees" collected. The cost would be divided between manufacturers, identified via chemical data reporting (CDR) submissions.
The EPA said it agreed with industry arguments that higher fees for new chemical reviews "could create an economic barrier to innovation."
Small businesses are to pay about 80% less, and the definition of a "small business" would change from annual sales under $50m to $91m.
The EPA proposes collecting fees from processors only when they submit a SNUN or when testing demands are tied to a processor’s SNUN. The agency said identifying processors would be burdensome and inevitably would miss some.
The proposal says the "EPA expects that manufacturers required to pay user fees will have a better sense of the universe of processors and will pass some of the costs on to them."
Industry initiated reviews
Fees for risk assessments requested by manufacturers are not included in the $25m cap or EPA's $20.05m collection estimate.
TSCA requires companies to pay the full cost of such reviews unless the subject is a high priority chemical listed on the EPA's 2014 TSCA Work Plan, for which they pay half. The EPA has set fees at $1.3m for industry-requested review of a Work Plan chemical and $2.6m for other substances.
The EPA estimates that its costs for industry-initiated reviews will be one third less than for reviews the agency initiates. The submitter will presumably provide data up front, the proposal says, and industry is likelier to request reviews of low-risk chemicals.
Once the proposed rule appears in the Federal Register, a 60-day public comment period will begin.
The EPA says it will begin collecting fees as soon as a final rule is published. The agency included fees in its budget for fiscal year 2019, which begins on 1 October. It plans to adjust the schedule for inflation and changing costs every three years.
https://chemicalwatch.com/64007/us-epa-highest-fees-for-risk-evaluation-of-existing-chemicals
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EPA Delay of Formaldehyde Limits for Wood Products Overturned
Feb 19, 2018 | BNA Daily Environment Report
By Steven Gibb
Lumber companies and other manufacturers using wood must immediately meet formaldehyde emissions limits for their products after a federal judge ruled Feb. 16 that the EPA's attempt to postpone the standards was illegal.
The Environmental Protection Agency, under the Formaldehyde Standards in Composite Wood Products Act, sets limits on the amounts of formaldehyde that can be released from manufactured wood products used in cabinets and furniture as well as for the travel trailers used by the Federal Emergency Management Agency to house families displaced by hurricanes.
The Trump administration had sought to push the compliance date for those standards back one year to December 2018.
The delay “fails to satisfy the stated purpose of the Act” which requires “the expeditious implementation of emission standards designed to protect both the public health of vulnerable populations,” Judge Jeffrey White of the U.S. District Court for the Northern District of California wrote in his decision.
Formaldehyde can lead to respiratory ailments and at sufficient levels of exposure, cancer.
The New Orleans-based group A Community Voice and the Sierra Club, represented by Earthjustice, had challenged the delay. The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg, the ultimate owner of Bloomberg Environment.
Bloomberg Environment emails to EPA's media office for comment were not returned.
The case is Sierra Club v. Pruitt, N.D. Cal., No. 4:17-cv-06293-JSW, 2/16/18.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=128331333&vname=dennotallissues&fn=128331333&jd=128331333
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Judge Rejects EPA Formaldehyde Rule Delay, Admonishing 'Waiver' Claim
Feb 16, 2018 | Inside EPA
By Dave Reynolds
A federal district court judge has strongly rejected the Trump administration's final rule delaying by one-year implementation of an Obama-era measure setting emissions standards for formaldehyde from wood products, finding that the delay exceeds EPA's authority under a 2010 law directing the agency to craft and expeditiously implement the standards.
“The EPA’s interpretation creates inconsistency within the full text of the Act, renders the 180-day compliance deadline superfluous, leads to the absurd result of permitting the perpetual delay of the effectiveness of the Formaldehyde Rule, and fails to satisfy the stated purpose of the Act,” Judge Jeffrey White of the U.S. District Court for the Northern District of California wrote in his Feb. 16 ruling in the case, Sierra Club et al v. Pruitt.
White also admonished EPA's argument that the case should be dismissed because the plaintiffs had waived their right to seek judicial review because they failed to oppose the extension during the delay rulemaking, saying that EPA should know its authority and not exceed it.
“Here, Plaintiffs did not challenge the EPA’s authority to extend the compliance deadline in the Delay Rule during the rule-making proceedings before the agency,” White says, adding that other parties did lodge the concern with the agency during the public comment period.
“Regardless, the Court also finds the EPA is separately tasked with the obligation to examine its own authority and not to promulgate implementing regulations in a way that exceeds its scope.”
While the ruling vacates the Trump administration's delay rule, White is staying his order to allow EPA and plaintiffs to discuss timely implementation of the compliance with the Obama-era rule.
The order gives the parties until March 9 to file additional documents to lift the stay and move forward with compliance with the rule.
Under the 2016 final rule, wood products had to comply with the new emissions limits by December 2017. But the Trump administration in a September rule extended the compliance deadline to December 2018. According to the ruling, EPA cited a provision in the law to accommodate the sale of the existing stocks in extending the compliance deadline for the broader rule.
Congress required that EPA issue the rule when it approved the 2010 Formaldehyde Standards in Composite Wood Products Act, which amended the Toxic Substances Control Act. Lawmakers enacted the legislation in response to health effects suffered by residents displaced by Hurricane Katrina and housed in government-issued trailers containing wood products with formaldehyde-containing adhesives.
The New Orleans-based group A Community Voice and the Sierra Club, represented by Earthjustice, filed a lawsuit Oct. 31 challenging the delay.
The litigation marks one of a host of lawsuits the Trump administration is facing over its efforts to delay Obama-era rules, including those governing methane standards for landfills, effluent guidelines for coal-fired power plants, facility safety standards for a host of industrial facilities and others.
Such suits are teeing up legal battles that pose major new tests for the limits of the Administrative Procedure Act's restrictions on how agencies make and undo their rules. Depending on how courts rule, it could set new precedents either expanding exemptions from the law or underscoring existing limits on agencies' discretion in its rulemaking efforts.
'Expeditious Emission Compliance Standard'
In the ruling, White focuses on the language of the 2010 law as requiring expeditious compliance with the final rule, and also notes that the efforts to limit formaldehyde emissions had already been significantly delayed as the final rule was not issued until six years later.
“The clear purpose of the Act and the plain meaning of its core provisions was to set expeditious emission compliance standards (not to exceed 180 days past the promulgation of implementing regulations) and to allow the sell off or use of preexisting noncompliant inventory but to prohibit stockpiling,” White says.
Environmentalist petitioners are hailing the decision as allowing protections from formaldehyde, a known carcinogen, to take effect. “At long last, the EPA will protect people from hazardous formaldehyde in everyday furnishings and building materials,” Earthjustice Attorney Patti Goldman said in a statement. “The Court enforced the law and put an end to EPA’s moves to delay complying with the deadline Congress set for banning formaldehyde emissions.”
EPA's final rule sets emissions standards for composite wood products manufactured, imported, or sold in the United States and establishes testing requirements to ensure compliance.
The Obama EPA touted the rule as setting a level the playing field for domestic manufacturers, many of whom are already complying with a 2008 California standard. The rule covers composite wood products including hardwood plywood and medium-density fiberboard, as well as household and other finished goods containing those products.
https://insideepa.com/daily-news/judge-rejects-epa-formaldehyde-rule-delay-admonishing-waiver-claim
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California Targets Fluorochemicals in Carpets, Rugs
Feb 19, 2018 | BNA Daily Environment Report
By Carolyn Whetzel
Carpet and rug manufacturers may need to rethink using per- and polyfluoroalkyl substances (PFAS) as stain and soil repellents to sell their products in California.
The state's Department of Toxic Substances Control is proposing to identify carpets and rugs treated with PFAS as a “priority product” under its Safer Consumer Product program.
PFAS chemicals are used in an estimated 90 percent of the carpets and rugs made in the United States due to their stain-resistant properties, state officials said in a draft document released Feb. 15.
Exposure to indoor dust from the use of the carpets and rugs pose health risks, especially to infants, children and other vulnerable populations, the state said.
Health Concerns
The chemicals have been linked to a variety adverse health effects including increased serum cholesterol, thyroid disease, immune system disruption, reproductive toxicity, and cancer, the document said.
Plus, wastes from the manufacture and disposal of the carpets and rugs pose an environmental threat to wildlife and aquatic life, the document said.
Manufacturers would have to conduct a lifecycle alternatives analysis to determine if the carpets can be made safer. But any such rulemaking is a long way off, the Department of Toxic Substances Control said.
Home Choices
“Frankly, this is going to be big shock to the home products industry,” Kathryn Richardson of Libeco Lagae Inc., a Belgium based textile company, told Bloomberg Environment Feb. 16.
California's move on PFAS is needed so industry and consumers can start making smarter choices, she said.
Officials at the Carpet and Rug Institute Inc. in Georgia didn't return Bloomberg Environment's request for comment.
The Department of Toxic Substances Control is seeking public comment on the document outlining why it believes the PFAS-treated carpets and rugs should be regulated under the Safer Consumer Products program, the state's landmark green chemistry initiative. Comments are due March 23.
A public workshop on the topic is scheduled for March 7 at California Environmental Protection Agency headquarters in Sacramento.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=128331342&vname=dennotallissues&fn=128331342&jd=128331342
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Steelmakers Seek Stricter EPA Rule to Keep Mercury Out of Plants
Feb 19, 2018 | BNA Daily Environment Report
By Pat Rizzuto
U.S. steelmakers want the EPA to tighten a draft mercury reporting rule to help them keep the toxic metal out of their supply chains.
An Environmental Protection Agency proposal would deprive steel makers of information they need to prevent mercury-containing switches, lamps, batteries, and other equipment from getting into their scrap recycling feedstocks, Eric Stuart, vice president for environment and energy at the Steel Manufacturers Association, told Bloomberg Environment.
Collecting more information could help steel makers prevent mercury from ending up in their manufacturing plants, where it can contaminate their products, have to be captured from smoke stacks, or be managed for recycling, Stuart said.
The EPA proposed rule would largely exempt manufacturers and importers of products with mercury-added components such as switches from reporting the volume of the metal in those goods and the distribution of those components in commerce, Stuart said. The EPA must finalize the rule by June 22.
The draft reporting rule (RIN:2070–AK22) would require mining companies, pharmaceutical manufacturers, and metal smelters not historically regulated by the nation's chemicals law to report to the EPA if they make or import mercury, add it to products, or intentionally use it in manufacturing processes.
The EPA would develop a mercury inventory and recommend what regulations or other actions should be taken to further reduce mercury exposures. Reducing mercury use is the primary goal of the Minamata Convention, a global treaty that the U.S. was the first nation to join in 2013.
When transformed into methylmercury in the environment, the metal becomes neurotoxic. Low doses can decrease motor skills, while high exposures can cause tremors, inability to walk, convulsions, birth defects, and even death, according to the EPA. Methylmercury also persists in the environment and accumulates up the food chain, where people are exposed through eating fish and shellfish.
Off-Ramps?
Semiconductor, automobile, and pharmaceutical firms said the EPA's proposed rule rightly exempts some manufacturers and importers from reporting. But environmental groups and states are urging a focus on importers as domestic manufacturers have already taken steps to reduce mercury use.
If the EPA exempts imported products containing batteries, lamps, switches, relays, or other components, the agency won't know what the U.S. supply, use, and trade of mercury and mercury compounds is, David Lennett, a senior attorney with the Natural Resources Defense Council, told Bloomberg Environment.
Without information on mercury volumes, products with mercury-containing switches might not be tracked through commerce, Terri Goldberg, executive director of the Northeast Waste Management Officials’ Association, told Bloomberg Environment.
Armed with information on switches starting in 2006, steel makers diverted more than 7.35 tons of mercury through a National Vehicle Switch Recovery Program designed to pull out a known type of mercury-containing switch automakers used, Stuart said.
But an industry coalition representative says the agency's proposal makes it hard to understand when reporting is required. It's hard to tell “who's in and who's out” when it comes to reporting, said Lawrence Culleen, an attorney in Washington with Arnold & Porter Kaye Scholer LLP, which represents the Chemical Users Coalition. The coalition includes electronic and aircraft manufacturers such as the Boeing Co., IBM Co., Intel Corp., and Lockheed Martin Corp.
Requiring companies that use equipment with mercury-containing components—but don't make the equipment—could lead to double counting mercury when the EPA crafts its inventory, Culleen said.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=128331340&vname=dennotallissues&fn=128331340&jd=128331340
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Pair of U.S.-to-Mexico Gas Export Projects Receive U.S. FERC Greenlight
Feb 16, 2018 | Natural Gas Intelligence
By David Bradley
A pair of separate but related pipeline efforts intended to support natural gas exports to Mexico, the Texas Eastern Transmission (Tetco) South Texas Expansion Project (STEP) and Pomelo Connector LLC's Pomelo Connector Pipeline Project, were each granted certificate authorization for construction by FERC Thursday.
Tetco first filed at FERC in mid-2015 for STEP, which through the addition of compression and other facilities would transform its existing Line 16 system to bidirectional service [CP15-499]. The project would allow Tetco to provide 400,000 Dth/d of incremental service for the project's anchor shipper and to increase the reliability and flexibility of service for all shippers on this portion of the Tetco system, the Spectra Energy Partners pipeline told FERC.
STEP includes installing an 8,400 hp compressor unit, a meter and regulating station, and appurtenant facilities on existing Tetco property in Nueces County, which is in South Texas. It also includes installing an 8,400 HP compressor unit, piping modifications, and appurtenant facilities at the existing Blessing Compressor Station in Matagorda County, TX, as well as modifying piping and other compression facilities at the Mont Belvieu Compressor Station in Chambers County, TX; Vidor Compressor Station in Orange County, TX; and Angleton Compressor Station in Brazoria County, TX.
In addition, modifications would be made to piping at existing pig launcher and receive sites along Tetco’s Line 16 in Brazoria, Chambers, and Orange counties.
Mexico's Comision Federal de Electricidad, the project's anchor customer, previously subscribed for incremental service on a transportation path extending from points near the Texas-Louisiana border to the new delivery point at the Petronila Compressor Station site.
In January 2017 Pomelo Connector filed at FERC for permission to construct its 14-mile-long, 30-inch diameter pipeline in Texas connecting Tetco with the proposed Valley Crossing Pipeline LLC in support of a system that would enable export of U.S. natural gas to Mexico [CP17-19]. The pipeline would run from Tetco's Petronila Station in Nueces County to its Valley Crossing interconnect near Agua Dulce, which is near Corpus Christi.
FERC issued a presidential permit and granted authorization in October for Valley Crossing Pipeline LLC to construct and operate a 2.6 Bcf/d cross-border natural gas pipeline between Texas and Mexico, where it would be used for power generation and industrial customers.
FERC's order authorized Valley Crossing, a subsidiary of Enbridge Inc., to build about 1,000 feet of 42-inch diameter pipeline from a point in Texas state waters about 30 miles east of Brownsville, to the international border with the Mexican state of Tamaulipas, in the Gulf of Mexico.
Natural gas transported through the pipeline is expected to fuel power plants owned by Mexico's Comision Federal de Electricidad. Enbridge expects to enter the pipeline into service by October.
Valley Crossing is currently building about 165 miles of 42- and 48-inch diameter of upstream, intrastate pipeline in Texas. The new pipeline would extend southwest from a header system in Nueces County, near the Agua Dulce Hub, to the proposed border-crossing facility, which would be subject to the jurisdiction of the Railroad Commission of Texas. Two compressor stations, multiple meter stations and ancillary facilities are also under construction.
FERC's order on Thursday also authorized Pomelo to abandon, and Tetco to acquire by lease, all the capacity of the Pomelo Connector Pipeline.
http://www.naturalgasintel.com/articles/113422-pair-of-us-to-mexico-gas-export-projects-receive-us-ferc-greenlight
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Phillips 66 Mulls Another Cracker For CP Chem Joint Venture – CEO
Feb 16, 2018 | ICIS
By Al Greenwood
HOUSTON (ICIS)--US-based Phillips 66 remains open to developing another ethane cracker for its Chevron Phillips Chemical (CP Chem) joint venture, the refiner's CEO said.
"We remain constructive on the second cracker at CP Chem," said Greg Garland, CEO. He made his comments during an investor presentation held by Credit Suisse.
"We're doing initial work around that today," he said.
The company will unlikely make a final investment decision (FID) until 2019, he said. "That probably means heavy lifting becomes 2020, 2021 for us in terms of the capital."
Global demand could support more petrochemical production, Garland said. Demand is growing faster than GDP, and billions of people are joining the middle class in India and China.
This growing middle class will adopt buying habits that will result in more plastic consumption.
At the same time, the US should have enough natural gas liquids (NGLs) to feed new crackers, he said.
Crude production in the US continues to increase. Oil wells also produce associated gas, which is rich in NGLs. Midstream companies are aggressively building the infrastructure to process this associated gas and ship it via pipeline to petrochemical plants on the Gulf Coast.
Other companies are also considering new plants in what is shaping out to be another wave of new projects in the US.
Meanwhile, Chevron Phillips Chemical is in the midst of commissioning a 1.5m tonne/year ethane cracker at Cedar Bayou, Texas, Garland said.
It should start receiving feedstock for the front end of the cracker this quarter, he said. By the second quarter, it should be fully operational.
Chevron Phillips Chemical did not have any comments immediately available on Friday.
The other joint venture partner in Chevron Phillips Chemical is the energy producer Chevron.
Image: Ethylene is used to make polyethylene (PE), a plastic found in plastic bags
https://www.icis.com/resources/news/2018/02/16/10194696/phillips-66-mulls-another-cracker-for-cp-chem-joint-venture-ceo/
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EPA Can't Waive Air Pollution Control Requirements, Court Says (1)
Feb 19, 2018 | BNA Daily Environment Report
By Jennifer Lu
The EPA can't let areas with long-standing and severe ozone problems avoid their obligations to clean the air and relax pollution-reduction efforts required to meet air quality standards set in 1997, a federal appeals court said.
The U.S. Court of Appeals for the District of Columbia Circuit's unanimous Feb. 16 decision struck down an Environmental Protection Agency waiver exempting states from meeting aspects of those ozone pollution standards.
The EPA “failed to introduce adequate anti-backsliding provisions” to ensure that pollution control requirements tied to the 1997 standards weren't relaxed in the process of attaining with the newer, stricter 2008 standards, the Senior Judge David Sentelle wrote in the opinion.
“The court ruled that the EPA was illegally weakening smog protections,” Seth Johnson, an Earthjustice attorney who represented environmental groups on the case, told Bloomberg Environment.
States Could Go Unpenalized
Under the Clean Air Act, areas that don't meet the EPA's national ozone standards must take steps to control emissions that contribute to the formation of smog. Industrial facilities, including power plants and manufacturing facilities, and vehicles are common emissions sources.
When areas fail to satisfy air quality standards by the legal deadline, they are penalized with fines and even stricter emissions control requirements.
However, when the EPA in 2015 revoked the 1997 ozone standards to make way for the newer standards, it eliminated the compliance deadlines for regions that had not yet met the requirements. This included a 2019 deadline for severe ozone problems in areas such Houston, Sacramento, and the Coachella Valley in California, and a 2024 deadline for extreme ozone pollution in the San Joaquin Valley and parts of Los Angeles.
“If the EPA were allowed to remove the deadlines that trigger those penalties, a state could go unpenalized without ever attaining” national air quality standards, the court said.
EPA Let States Off Hook
The court also ruled that the EPA had been allowing states that eventually showed they met revoked ozone standards to drop those anti-backsliding measures without demonstrating they had met all of the criteria set out in the Clean Air Act.
Environmental groups had argued that the EPA's process for redesignating those regions allowed industries to evade new source review permitting requirements. New source review requires industrial facilities that expand or make modifications that increase their emissions to install updated pollution controls.
The court's opinion reversing this practice “could have the effect of reimposing requirements that were no longer considered applicable to sources in Texas,” Jennifer Keane, partner at Baker Botts LLP's Austin office, told Bloomberg Environment.
California Loses Compliance Bid
The court also denied a request from the Southern California-based South Coast Air Quality Management District to allow it to claim emissions reductions from a larger region than the nonattainment area in order to show compliance.
“The court rejected EPA and South Coast's smog protections,” Johnson said. “And that's good for public health.”
The South Coast air district had a legitimate argument, Frank O'Donnell, president of Clean Air Watch, told Bloomberg Environment.
“I think in effect, the decision is going to put more pressure on South Coast to deal with sources of pollution from within the L.A. basin,” O'Donnell said.
The case is S. Coast Air Quality Mgmt. Dist. v. EPA, 2018 BL 52681, D.C. Cir., 15-1115 Consolidated with 15-1123, 2/16/18.
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=128331338&vname=dennotallissues&fn=128331338&jd=128331338
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Bipartisan Senate Group Offers EPA Path to Implement Coolant Deal (1)
Feb 19, 2018 | BNA Daily Environment Report
By Abby Smith
A bipartisan group of senators is aiming to give the EPA a pathway to implement a global deal limiting potent greenhouse gas refrigerants. The move could help tip the scales as the Trump administration weighs whether to support the deal.
Republican Sen. John Kennedy (La.) and Democratic Sen. Tom Carper (Del.) introduced legislation Feb. 15 that would direct the Environmental Protection Agency to establish a market-based system to meet the global requirements to limit hydrofluorocarbons (HFCs), potent greenhouse gas chemicals commonly used as refrigerants.
Joining Kennedy and Carper on the legislation are Republican Sens. Bill Cassidy (La.) and Susan Collins (Maine) and Democratic Sens. Chris Coons (Del.) and Jeff Merkley (Ore.).
The bipartisan legislation (S. 2448) would require the EPA to set up an “allowance allocation and trading program” to reduce HFCs by Dec. 31, 2018. That system must be consistent with the phasedown schedule established in the Kigali Amendment to the Montreal Protocol, a global deal to phase down ozone-depleting substances. The Kigali Amendment would also phase out use of HFCs, which replaced those ozone-depleting substances.
In addition, the legislation calls for the agency to issue rules advancing “environmentally friendly technologies, including new compounds, blends, and other substances.”
“This bill gives a $206 billion U.S. industry the clarity it needs to invest, transition, and protect American jobs,” Kennedy said in a statement announcing the legislation. “It's not often that Democrats, Republicans, industry, and environmental groups come together to agree on anything, but we are all in agreement on this one.”
Trump Still Undecided
The Trump administration has not yet decided whether it will support the global deal to phase down HFCs, which it would have to send to the Senate for ratification.
The Kigali agreement has strong support from the refrigeration and chemical industries, as well as environmental groups. The deal could limit global warming as much as half a degree Celsius by the end of the century, according to many scientific estimates.
But the legislation, if it passes, would allow the EPA to direct HFC reductions even absent Senate ratification of the Kigali deal, both environmental and industry experts say.
The bill “lets us get started on the timetable consistent with the Kigali [deal] without prejudging or presupposing Kigali ratification,” Kevin Fay, executive director of the industry coalition the Alliance for Responsible Atmospheric Policy, told Bloomberg Environment. The alliance represents major U.S. appliance manufacturing companies such as Johnson Controls, Ingersoll Rand, and Whirlpool, and chemical companies such as Honeywell and Chemours.
Resolving Legal Uncertainty
Fay said the legislation would resolve any uncertainty about the EPA's authority to regulate HFCs after a federal appeals court last summer struck down Obama-era limits on the chemicals.
The Obama administration had used a Clean Air Act program, known as the Significant New Alternatives Policy program, to ban certain uses of HFCs. Two chemical companies—Mexichem Fluor and Arkema—sued, and the U.S. Court of Appeals for the District of Columbia Circuit agreed the regulations exceeded EPA's air act authority.
But Fay, whose group includes Mexichem and Arkema, said industry is “all on board” with the approach laid out in Kennedy and Carper's legislation. He added that the bill wouldn't amend the Clean Air Act but would direct the EPA to set up a system consistent with the air law.
The EPA is no stranger to using an allocation-based trading system to implement requirements under the Montreal Protocol, David Doniger, director of the Natural Resources Defense Council's climate and clean energy program, told Bloomberg Environment.
According to Doniger, the agency has set up similar systems to phase out ozone-depleting chemicals. Under those systems the EPA gives companies allocations to produce and use the chemicals consistent with their share of the market in a chosen baseline year. Companies can then trade those allowances, and the number of available allowances decline consistent with global requirements to limit the chemicals.
Doniger said his group supports the new legislation but also continues to back the Obama-era regulations. Both approaches could be used to limit HFCs, he said.
The Natural Resources Defense Counsel, which intervened to support the EPA's HFC limits, will in the coming months ask the Supreme Court to review the D.C. Circuit's decision vacating the Obama EPA rules, Doniger said. Honeywell has also said it will appeal the ruling to the high court.
‘Positive Signals’
Industry has long been urging senators of both parties to back the Kigali deal, but having a “standalone bill” will now allow companies to engage lawmakers on a near-term action while waiting for the ratification process to reach the Senate, Fay said.
The legislation could face a bigger hurdle in the House if Republican opposition mounts. Fay said industry is just starting to work with House lawmakers, but there's a feeling “that we're getting very positive signals” from members on both sides of the aisle.
Doniger said the legislation should provide a “good signal to the marketplace” and to the White House “that this is an easy win for them. There's not very many areas of environmental policy where you have across the board support from both industry and the environmental community.”
But it's unclear when or whether the White House would decide to send the Kigali deal to the Senate for ratification. David Banks, who had served as White House energy adviser until he abruptly resigned Feb. 14, had previously said White House officials are working on an economic analysis of the amendment—as well as determining whether the EPA would have a path to implement the phasedown.
Fay said the new legislation could be helpful in swaying the White House. “We think there's a very strong, positive economic message here,” he said. “That's what the White House has indicated an interest in with is, and we continue to have that discussion with them.”
http://news.bna.com/deln/DELNWB/split_display.adp?fedfid=128331359&vname=dennotallissues&fn=128331359&jd=128331359
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Backers Of HFC Amendment Hopeful Despite Exit Of White House Ally
Feb 16, 2018 | PoliticoPro
By Eric Wolff
The exit of a White House energy adviser this week may slow progress toward Senate ratification of a treaty to reduce emissions of hydrofluorocarbons, a potent climate change pollutant, but it doesn't mean the measure is dead, advocates say.
The adviser, George David Banks, who served on the National Economic Council, had been a key proponent of the amendment to the Montreal Protocol agreed in Kigali, Rwanda that would phase down use of HFCs. U.S. companies are the biggest producers of the next-generation coolants that would replace HFCs, and they say they plan to continue to push President Donald Trump to submit the agreement for ratification.
The treaty has the backing of both industry and environmentalists, and it was touted by the Obama administration when it was struck in 2016 because it could hold back 0.5 degrees Celsius (0.8 Fahrenheit) of global warming by 2100. But greens have gone quiet on the treaty since the election of Trump out of concern that he would refuse to send the treaty to the Senate for ratification. A State Department official last year supported the aims and methods of the amendment, but the administration has not decided whether it will back the deal.
Banks told POLITICO he expected the White House to get behind the measure based on its benefits to the U.S. economy.
"The real issue here is the economic analysis. What does this mean from an economic perspective for the United States?" he said. "The president, as I've said before, he’s not ideological on these issues. The president is going to care if it's going to create jobs and create exports."
Industry groups are already at work on an analysis to make their case, and in the meantime they are continuing their discussions with the Departments of State, Commerce, and EPA, as well as the White House.
But the departure of Banks, who left after he was denied permanent security clearance and who worked on HFC issues in the Montreal Protocol under President George W. Bush, is a blow. Industry groups say ratifying the agreement won't be critical for a few years, but they had hoped to get it to the Senate this year.
"Banks was clearly a proponent. We are very sorry to see him go," said Francis Dietz, a spokesman for the Air-Conditioning, Refrigeration, and Heating Institute. "All we can do is do our due diligence and talk to people over there and make sure they see how important it is to our industry."
Dietz noted that John Thompson, who reported to Banks, is still at the White House and is an expert in the Montreal Protocol. But Thompson is on a one-year detail from the State Department, as is typical for this level of White House aide, and could exit in the fall.
"I’m certainly replaceable, but we have a light bench, and someone is going to need to be identified to take the lead," Banks said.
Kigali amendment backers did score a win on Thursday when a bipartisan group of six senators led by Sen. John Kennedy (R-La.) introduced a bill that would grant EPA the necessary authority to implement the amendment, if it is ratified by the Senate. The U.S. Court of Appeals for the D.C. Circuit struck down an EPA implementation rule last year, leaving observers uncertain how HFCs would be regulated.
"I’m feeling good because even though it’s a loss to lose Banks at this time, we got some pretty significant bipartisan support on the Senate side," said Kevin Fay, executive director of the Alliance for Responsible Atmospheric Policy, which is lobbying to advance the amendment. "We'll keep putting arguments out there and information and we’ll see where it takes us."
https://www.politicopro.com/energy/article/2018/02/backers-of-hfc-amendment-hopeful-despite-exit-of-white-house-ally-353863
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D.C. Circuit Rejects Obama-Era Policy For Revoking Older Ozone NAAQS
Feb 16, 2018 | Inside EPA
By Stuart Parker
The U.S. Court of Appeals for the District of Columbia Circuit has largely ruled against the Obama EPA's policy for revoking outdated federal ozone standards, requiring changes to the agency's approach for removing old standards and setting new requirements for how the agency will implement the 2015 ozone limit.
In its unanimous Feb. 16 ruling in the consolidated case South Coast Air Quality Management District, et al. v. EPA, et al., the court vacates numerous aspects of the Obama EPA's 2015 rule setting implementation requirements for the 2008 ozone national ambient air quality standard (NAAQS) of 75 parts per billion (ppb). But the court also rejects some other challenges, including over when to give credit to areas for certain ozone reductions.
The ruling therefore sets a significant precedent for how EPA will ultimately implement its tougher ozone NAAQS of 70 ppb set in 2015. The Trump EPA has yet to finalize an implementation rule for the tougher standard, and has indicated its desire to reconsider the 2015 NAAQS for being too stringent.
The Obama-era rule implementing the 2008 NAAQS contains several options for revoking the older 1997 NAAQS expressed as 84 ppb, and removes a series of pollution control requirements associated with the older standard. But the D.C. Circuit panel of Chief Judge Merrick Garland and Judges Judith Rogers and David Sentelle disagrees with several aspects of the agency's approach, in an opinion written for the court by Sentelle.
At Sept. 14 oral argument in the case, the judges expressed doubts over EPA's defense of several provisions of the 2008 ozone NAAQS implementation rule.
The bulk of the subsequent ruling addresses complaints brought by environmentalists over “anti-backsliding” measures that are designed to prevent loosening of existing pollution controls. A major finding in the ruling is the court's statement that statutory deadlines for areas that at one point have violated a NAAQS to comply are in themselves anti-backsliding control measures, and must be retained even where an area is designated attainment for a tougher new standard. The court rejects EPA's approach that the old requirements no longer apply.
The panel finds that because missing certain deadlines for attainment results in areas being “bumped up” to a more severe degree of ozone “nonattainment,” which requires tougher pollution controls, lifting the deadlines will result in higher levels of air pollution than would otherwise be the case. This, in the court's view, is unlawful backsliding.
The D.C. Circuit has previously held that Clean Air Act anti-backsliding provisions must remain in place even after an old NAAQS has been revoked. The measures aim to prevent any worsening of air quality when NAAQS are revised, but critics argue that this makes little sense when NAAQS are made tougher, not weaker.
Environmentalists counter that it is possible for areas designated “attainment” for a tougher standard to still increase their emissions and worsen pollution, contravening the Clean Air Act.
Sentelle writes that EPA's 2015 implementation rule “specifically waives the obligation 'to reclassify an area to a higher classification for the 1997 ozone NAAQS' based on a failure to meet the 1997 NAAQS attainment deadlines. As a result, the Final Rule allows areas that fail to timely attain to avoid being subject to more stringent emissions controls. Therefore, the Final Rule relaxed the controls applicable to areas designated nonattainment under the 1997 NAAQS in contravention of the anti-backsliding requirement.”
Court's Ruling
The court also rejects some compliance options that EPA offered to so-called “orphan” areas -- those still designated nonattainment for the 1997 NAAQS, yet designated attainment for the tougher 2008 standard. EPA allows these areas to drop requirements that otherwise apply to nonattainment areas.
These include Nonattainment New Source Review permitting, “transportation conformity,” -- which ensures transportation projects do not result in NAAQS violations -- and “contingency measures” to be taken in the event of a missed attainment deadline. EPA instead requires these areas to apply less-onerous Prevention of Significant Deterioration permit requirements that apply to attainment zones.
However, the court finds that measures that would allow reclassification to attainment for the 1997 NAAQS, or formal redesignation to attainment with the 2008 NAAQS, are prerequisites to lifting the older controls.
The air law also requires that states not only attain NAAQS but include measures in their state implementation plans (SIPs) to “maintain” their attainment if they have once been in nonattainment. But the court finds the law vague on this point, and finds that EPA has wrongly dropped some maintenance requirements, but also finds in favor of EPA that certain maintenance requirements need not apply once a NAAQS is revoked.
“The statute clearly requires 'maintenance' provisions to be included in SIPs, but the statute does not require a separate SIP component entitled 'maintenance plan.' In fact, the statute provides no guidance for what SIPs must include” on this point, Sentelle writes.
EPA also offered orphan areas a “redesignation substitute” that would have allowed these areas to drop some older requirements associated with the 1997 standard without first being formally redesignated to attainment, but Sentelle finds that this is inadequate because it falls short of the full criteria used for formal redesignation, and vacates the rule with respect to that option.
The court further finds EPA unlawfully offered states the option of using an “alternative” baseline year from which to measure “reasonable further progress” (RFP) in states' efforts to cut ozone, where such progress is measured by fixed percentages of pollution that states must reduce by certain deadlines. “EPA based its creation of the alternative baseline year option on the convenience of allowing nonattainment areas to receive credit for emissions reduction measures adopted prior to the baseline year,” Sentelle writes.
However, the court also finds that EPA's choice of 2011 as a base year is reasonable, and rejects environmentalists' arguments that the baseline year must be 2012, the year that NAAQS designations for the 2008 NAAQS were issued.
On one point of interest to the California South Coast air district in particular, the court rejects environmentalists' arguments that EPA cannot allow area-wide averaging of emissions reductions to satisfy “reasonably available control technology (RACT),” a level of emissions control that applies in nonattainment areas.
“EPA’s interpretation reasonably allows nonattainment areas to meet RACT-level emissions requirements through averaging within a nonattainment area,” Sentelle writes.
'Out Of Area' Reductions
The rest of the ruling addresses a specific complaint of the South Coast air district, the air regulator for the Los Angeles area, that EPA wrongly disallows “out of area” emissions reductions from being counted in demonstrations of RFP in state air plans. The court finds for EPA and against South Coast on this point.
The air district argued that EPA wrongly changed its legal interpretation to disallow emissions cuts from outside a nonattainment area from counting. This is important to some Southern California areas that would otherwise struggle to demonstrate the required emissions cuts without counting cuts in neighboring zones.
The court rejects South Coast's assertion that the air law's reference to emissions cuts “in the area” is ambiguous, and could apply to some other area -- deemed a “transport area” by South Coast -- than the nonattainment area.
Sentelle writes, “we hold . . . that 'in the area' unambiguously refers to baseline emissions within the nonattainment area. Accordingly, we deny South Coast’s petition.”
https://insideepa.com/daily-news/dc-circuit-rejects-obama-era-policy-revoking-older-ozone-naaqs
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Utilities Seek Revised Ozone Designations Based On 'Exceptional Events'
Feb 16, 2018 | Inside EPA
By Stuart Parker
Electric utility groups are calling on EPA to revise several of its proposed designations of areas violating the agency's 2015 ozone national ambient air quality standard (NAAQS) and change them to attainment based on air pollution associated with “exceptional events” such as wildfires that increase ozone levels.
Industry groups, states, environmentalists and others in public comments submitted ahead of a Feb. 5 deadline express wide-ranging criticisms of EPA's proposed nonattainment designations for the 2015 NAAQS, which the Obama EPA set at 70 parts per billion (ppb), tougher than the prior limit of 75 ppb set in 2008.
EPA missed an Oct. 1 deadline to issue final areas designations, and now says it intends to complete designations by April 30, except for San Antonio, for which EPA anticipates issuing final designations by Aug. 10. Environmentalists and states are suing EPA in federal district and appeals courts to force swift issuance of the designations.
While many commenters focus on individual area designations they disagree with, utility industry body the Midwest Ozone Group (MOG) recommends that EPA modify a slew of its designations for locations showing high ozone levels based on the “exceptional events” exemption. Under this waiver, states can ask EPA for the right to exclude for compliance purposes air quality readings taken during unusual occurrences such as dust storms or wildfires. EPA under the Obama administration indicated that the policy would be helpful to states in showing compliance with the standard.
Areas labeled nonattainment must craft implementation plans imposing tough pollution controls on industry or face the ultimate sanction of losing federal highway funding. In nonattainment zones, new or expanding industrial facilities must also ensure during the permitting process that they will not produce emissions that violate NAAQS, purchasing pollution “offsets” where necessary, so states aim to secure attainment status instead.
MOG in its Jan. 31 comments claims that large Canadian wildfires in the summer of 2016 inflated ozone readings at many locations, and that EPA should adjust downward the “design values,” or ozone readings used to designate areas for the NAAQS, for those locations.
MOG offers revised, lower design values for multiple air quality monitoring locations, after deducting what it says is the air pollution attributable to huge Canadian wildfires. MOG notes that some states have already submitted exceptional events demonstrations for Canadian fires that happened in May 2016, but says EPA should also take into account fires that happened in July of that year.
Further, EPA should adjust downward the design values of all affected air quality monitors, not just those that are reading above the level of the NAAQS, MOG says.
Making the adjustments MOG suggests would result in several areas moving from nonattainment to attainment, and would improve the ozone design values of other areas, making attainment easier. For example, Hunterdon County, NJ, would change its design value from 72 ppb to 70 ppb, attaining the NAAQS.
This also has implications for the pollution cuts that upwind states must achieve in order to meet their “good neighbor” obligations to curb interstate air emissions under the Clean Air Act. If fewer downwind areas are classified nonattainment, upwind areas' obligations to reduce pollution that affects those downwind areas will also be reduced.
EPA's Designations
The Edison Electric Institute (EEI), also representing electric utilities, in its Feb. 5 comments praises EPA's decision to designate El Paso County, TX, attainment because of an exceptional events claim related to wildfires in Arizona. “EPA' s decision to designate El Paso County as attaining the NAAQS is appropriate in this instance, and consistent with the state' s valid recommendation,” EEI says. “EPA should continue to utilize appropriate and well justified exceptional event demonstrations during the designations process.”
EPA Region 9 staffer Anna Mebust, meanwhile, in a Jan. 25 presentation to EPA's National Air Quality Conference in Austin noted that Washoe County, NV, has avoided a nonattainment designation for the 2015 ozone standard through an exceptional events demonstration based on wildfires that affected air quality readings.
The county's wildfire ozone demonstrations for 2015 and 2016 events “were the first demonstrations to be submitted, reviewed and concurred upon” under the exceptional events rule and guidance as revised under the Obama administration, according to Mebust. EPA further intends to revisit the exceptional events policy again to make it easier still for states to use, the agency says.
Meanwhile, the Wisconsin Institute for Law & Liberty (WILL), a free-market legal advocacy group, takes issue with Wisconsin, the state for which EPA has proposed the several nonattainment areas that differ from the state's recommendations. WILL in its comments alludes to the “Lake Michigan effect,” which causes air quality monitors near the lakeshore to register high ozone readings because of their proximity to open water. Ozone readings are often higher over water bodies.
Based on additional information the state supplied on this effect, WILL requests that “EPA reconsider and remove Racine, Washington and Waukesha Counties, along with western Milwaukee and Ozaukee Counties from the proposed nonattainment zone.”
Environmentalists' Comments
Environmental groups in their comments are warning EPA not to further delay its issuance of nonattainment designations. Law firm Earthjustice in Feb. 5 comments on behalf of a coalition of environmental groups warns EPA not to make the final designations effective at some point after their issuance.
“EPA will already have delayed making ozone nonattainment designations by seven months by the time it finalizes the designations in its responses, already resulting in delayed cleanup of ozone pollution and thus in avoidable human health harms like asthma attacks, hospitalizations, and deaths. Further delay through a delayed effective date would exacerbate and prolong those harms,” the group says.
Further, Earthjustice says that EPA's ozone designations will not fully satisfy its obligation to ensure attainment of the 2015 NAAQS, because the agency denies several states' request for designation of very large, multi-state nonattainment areas to curb interstate ozone.
EPA has rejected such approaches, citing the availability of other air law mechanisms that exist specifically to address interstate ozone pollution. Federal courts have so far endorsed this policy. The agency therefore sticks to its approach of designating areas on a county basis, including combining as one nonattainment area counties with air monitors reading nonattainment and adjacent counties that contribute to their air pollution.
“In its proposed designations, EPA once again refuses to take steps to comprehensively address the causes of ozone pollution. EPA rejects multiple states’ recommendations to establish large, multi-state nonattainment areas,” Earthjustice says. But EPA has either denied other approaches to curb interstate ozone requested by states, or has failed to respond to states' requests, the group says.
“It is unlawful and arbitrary for EPA to play this shell game of referring people suffering from high levels of ozone pollution to other statutory provisions, even though no statutory avenue is fully implemented,” Earthjustice says.
https://insideepa.com/daily-news/utilities-seek-revised-ozone-designations-based-exceptional-events
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Court Gives Greens Win On '08 Ozone Rule Implementation
Feb 19, 2018 | PoliticoPro - Whiteboard
By Alex Guillen
The Obama administration wrongly revoked the 1997 ozone standard when it wrote a 2015 rule to implement the 2008 ozone standard, a three-judge panel of the D.C. Circuit Court of Appeals ruled today in a win for environmentalists.
EPA argued that it can revoke previous air quality standards so long as it includes measures to prevent "backsliding" so areas that meet the standard do not see their air quality worsen.
But the court said EPA did not include "adequate" anti-backsliding measures. The 2015 rule waived any obligation for EPA to reclassify areas that might backslide as nonattainment, which would trigger stronger control requirements. Those relaxed controls are "in contravention of the anti-backsliding requirement," the court ruled.
The judges sided with environmentalists on eight other arguments over specific, often technical parts of the rule. Several other arguments advanced by environmentalists were rejected.
The court also tossed out separate arguments made by California's South Coast Air Quality Management District that EPA should have allowed states to count emissions reductions made outside nonattainment areas. The Clean Air Act clearly requires certain gains be made within the nonattainment area, the judges ruled.
The panel included Chief Judge Merrick Garland and Judge Judith Rogers, both Clinton appointees, and senior judge David B. Sentelle, a Reagan appointee.
WHAT’S NEXT: The court vacated the nine parts of the rule in which it sided with environmentalist challengers. EPA may have to revisit the matter and potentially re-write those segments.
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