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Watchdog Faults Administration for Cyber Implementation
Feb 11, 2015 | The Hill - Cybersecurity
By Cory Bennett
The administration is taking steps to shore up its cybersecurity, but has a long way to go, concluded a biennial government watchdog report. -
Utility CEO to EPA: A Few Tweaks Won't Kill You
Feb 11, 2015 | PoliticoPro (Morning Energy)
The CEO of Ameren Corp., a St. Louis-based utility, is out to make the case that a few extra years to comply with the EPA carbon rules coming down the pike wouldn’t upend the process. -
Coal-Heavy Utility Offers Support for EPA's Clean Power Plan in Exchange for Revisions
Feb 11, 2015 | E&E - Climatewire
By Emily Holden and Rod Kuckro
A coal-reliant electric utility, Ameren Corp., is laying out changes U.S. EPA could make to its proposed Clean Power Plan to earn the company's support for the proposed rule. -
Ameren Releases White Paper Offering Constructive Alternatives to EPA’s Clean Power Plan
Feb 11, 2015 | Ameren Press Release
By Joe Muehlenkamp
A white paper issued today by Ameren Corporation (NYSE: AEE) says that constructive and common-sense alterations to the Environmental Protection Agency’s Clean Power Plan (CPP) are needed to avoid imposing staggering costs on utility customers and significant risks to electric grid reliability. -
Inhofe, EPA Air Chief Spar Over Clean Power Plan
Feb 11, 2015 | E&E - Greenwire
By Jean Chemnick
One of the Senate's most powerful critics of U.S. EPA regulation today gave a preview of his strategy to go on offense against his chief oversight target for the new Congress -- the Clean Power Plan. -
GAO Lists Energy, Environment Programs on 'High Risk List'
Feb 11, 2015 | E&E - Greenwire
By Kevin Bogardus
The Government Accountability Office included several energy and environment government programs on its list of federal projects at high risk of waste and fraud. -
Energy Policy Insanity, From Both Sides
Feb 11, 2015 | The Hill - Pundits Blog
By Erik Molvar
I live in the resource colony of Wyoming, so when I woke up last week I heard Sen. Mike Enzi (R-Wyo.) and Rep. Cynthia Lummis (R-Wyo.) expounding on the nation's energy policy. Said Enzi of President Obama: "He has no energy policy. -
TransCanada Disagrees with U.S. EPA on Keystone Carbon Footprint
Feb 11, 2015 | Reuters
By Swetha Gopinath
TransCanada Corp said it rejected the U.S. Environmental Protection Agency's inference that its Keystone XL pipeline would increase the rate of oil sands production at lower oil prices, and raise greenhouse gas emissions. -
Keystone Developer Rebuts EPA
Feb 11, 2015 | The Hill - E2 Wire
By Timothy Cama
The company planning to build the Keystone XL oil pipeline said there’s no reason to reevaluate its environmental impacts. -
EPA's Wrong About Pipeline's Climate Impacts -- TransCanada
Feb 11, 2015 | E&E - Greenwire
By Manuel Quiñones
Keystone XL developer TransCanada Corp. rebuts U.S. EPA warnings about the hot-button project's potential climate impacts in a letter sent yesterday to the State Department. -
Scientists, Economists Press Obama to Reject Keystone
Feb 11, 2015 | The Hill - E2 Wire
By Laura Barron-Lopez
More than 90 scientists and economists on Wednesday urged President Obama to reject the Keystone XL pipeline. -
Boehner: Obama Siding with 'Extremists and Anarchists' on Keystone
Feb 11, 2015 | The Hill - E2 Wire
By Timothy Cama
Speaker John Boehner (R-Ohio) on Wednesday accused President Obama of pandering to the radical left with his threat to veto the Keystone XL bill. -
McConnell Urges Obama to Reconsider on Keystone
Feb 11, 2015 | The Hill - E2 Wire
By Laura Barron-Lopez
Senate Majority Leader Mitch McConnell urged President Obama on Wednesday to alter course and sign the bill approving construction of the Keystone XL oil sands pipeline, after the House votes on it. -
Smart, Bipartisan Energy Policy Lurks Beneath Keystone Debate
Feb 11, 2015 | The Hill - Congress Blog
By Jeff DeBoer
There’s no shortage of hyperbole from all sides regarding the inflated “pros” and “cons” of the Keystone XL pipeline. -
Mass. Town Challenges FERC's Right to Permit Pipelines Linked to Gas Exports
Feb 11, 2015 | E&E - Energywire
By Colin Sullivan and Hannah Northey
Federal energy regulators are facing an innovative constitutional challenge aimed at their ability to regulate natural gas pipeline developers that may have future export traffic in mind. -
High Levels of Benzene Found in Fracking Waste Water
Feb 11, 2015 | LA Times
By Julie Cart
Hoping to better understand the health effects of oil fracking, the state in 2013 ordered oil companies to test the chemical-laden waste water extracted from wells. -
U.S. Boom Has 'Changed the Rules' for World Market -- IEA
Feb 11, 2015 | E&E - Energywire
By Jenny Mandel
Last year's oil price crash shares some features with "sharp corrections" that have rocked crude markets roughly every 10 years since the 1970s, but the advent of U.S. light, tight oil has fundamentally shifted the world market, according to a new analysis by the International Energy Agency. -
Top Lawmakers Launch a Clean Energy 'Gold Rush' with Sweeping New Climate Change Proposals
Feb 11, 2015 | E&E - Climatewire
By Debra Kahn
State legislative leaders for California yesterday pitched an ambitious climate change agenda as a job-creating vehicle. -
Obama Proposes To Boost EPA's Air, Climate Policy Funds In FY16 Budget
Feb 11, 2015 | InsideEPA
By Stuart Parker
President Obama's proposed EPA budget for fiscal year 2016 calls for a $120 million boost in spending for its clean air and climate programs for a total of $1.112 billion compared to the current $992 million funding, signaling the priority Obama is placing on EPA implementing its power plant climate rules and major clean air regulations. -
Court Ruling Further Delays EPA's Years-Old PM Air Rule Review
Feb 11, 2015 | InsideEPA
EPA says that a U.S. Court of Appeals for the District of Columbia Circuit ruling that backed environmentalists in finding that the agency issued an unlawfully lax rule for implementing its particulate matter (PM) air standards is causing further delay in its years-old review of whether to revise part of the rule challenged by the livestock sector. -
Potential Air Toxics Rule Review Suit Could Add To EPA Program Burdens
Feb 11, 2015 | InsideEPA
By Stuart Parker
Environmentalists' threat to sue EPA to force reviews and potential updates to dozens of air toxics rules for a host of industrial sectors could further add to the burdens facing the agency's air toxics program, which is already using limited funding to revise various air toxics rules to update them and to remove certain enforcement provisions. -
EPA's FY16 Air Toxics Budget Remains Tight Despite Risk Review Backlog
Feb 11, 2015 | InsideEPA
By Stuart Parker
EPA faces a tight fiscal year 2016 funding proposal for its air toxics program despite a backlog of Clean Air Act-mandated residual risk reviews for potential updates to existing air toxics regulations, delays that have prompted a legal threat from environmentalists to try and force court-ordered deadlines for conducting the reviews.
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Watchdog Faults Administration for Cyber Implementation
Feb 11, 2015 | The Hill - Cybersecurity
By Cory Bennett
The administration is taking steps to shore up its cybersecurity, but has a long way to go, concluded a biennial government watchdog report.
“The federal government continues to face challenges in effectively implementing cybersecurity policies,” said the Government Accountability Office (GAO) in its 2015 High-Risk List, which spotlights vulnerable programs and areas, released Wednesday.
Nearly every major agency has significant information security weaknesses, GAO said, leaving the federal government’s networks vulnerable to a range of cyber threats.
The cyber menace is so great the GAO expanded its cyber focus in this year’s report, adding an assessment of the government’s ability to protect its workers’ personally identifiable information (PII).
In the last five years, the number of federal breaches exposing PII have more than doubled, to over 27,000, “and that’s just reports by the federal agencies,” said Comptroller General of the United States Gene Dodaro during a Wednesday press conference.
“It’s clear that we have to address this issue,” added Rep. Elijah Cummings (D-Md.), ranking member on the House Oversight and Government Reform Committee. “Cybersecurity affects our constituents on a day-to-day basis. If it does not affect them directly, it makes them feel vulnerable."
While the report gave credit to the government for putting in place plans to address many of its cyber challenges, GAO said many agencies had not yet taken the steps needed to implement their strategy.
“Shortcomings persist in assessing risks, developing and implementing security controls and monitoring results at federal agencies,” the GAO said.
The White House and Congress have moved in recent months to codify key agencies’ cyber roles and bolster their ability to hire and retain a cyber workforce.
Lawmakers passed a series of five small cyber bills in December that clarified the cyber jurisdiction of the Department of Homeland Security (DHS) and the Office of Management and Budget (OMB).
The White House has followed that up by creating a new federal agency to coordinate cyber threat data analysis across the government. On Friday, President Obama will sign an executive order that is expected to reshape how the DHS exchanges cyber information with the private sector.
The GAO gave lawmakers and the White House credit for their initiative, but pressed them to go further and deliver more tangible results.
“Progress will need to be demonstrated by agencies fully implementing their information security programs and by critical infrastructure sectors improving their cybersecurity,” the report said.
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Utility CEO to EPA: A Few Tweaks Won't Kill You
Feb 11, 2015 | PoliticoPro (Morning Energy)
The CEO of Ameren Corp., a St. Louis-based utility, is out to make the case that a few extra years to comply with the EPA carbon rules coming down the pike wouldn’t upend the process. Warner Baxter is out with a white paper today arguing that there are four changes to the draft rules that would go a long way for the power sector, including the flexibility to breach the suggested 2030 compliance deadline “if a clear path to meaningful reductions is evident in a reasonable time frame.” Baxter doesn’t call for a wholesale scrapping of the carbon proposals, but he’s also made it clear that he’s not a fan of the EPA. He writes, “The EPA’s plan reflects scant interest — if any — in the actual ability of utilities to achieve the EPA’s aims without sparking severe repercussions to American homes and businesses in the form of higher costs and reliability risks.” The EPA has long disputed this sort of allegation, saying it has analyzed emissions-cutting strategies already in use and that the agency has been working with grid operators, and federal and state commissions, to ensure electric reliability. The white paper: http://bit.ly/1IQ0p0X https://www.ameren.com/-/media/Corporate-Site/Files/aboutameren/amerens-alternative-ghg-white-paper.pdf?la=en
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Coal-Heavy Utility Offers Support for EPA's Clean Power Plan in Exchange for Revisions
Feb 11, 2015 | E&E - Climatewire
By Emily Holden and Rod Kuckro
A coal-reliant electric utility, Ameren Corp., is laying out changes U.S. EPA could make to its proposed Clean Power Plan to earn the company's support for the proposed rule.
In a white paper released today, the utility -- which produces 70 percent of its power from coal-fired plants -- doesn't hold back any criticism but is overall conciliatory, asking for revisions that mirror requests from both defenders and opponents of the power plant regulations.
Ameren is the first coal-dependent utility to refine its position on paper and to make a formal move toward developing consensus on the controversial rule.
EPA's rule would reduce power-sector carbon emissions 30 percent below 2005 levels over the next 15 years by asking states to cut their emissions rates by varying amounts.
Ameren wants EPA to replace interim goals that would begin in 2020 with a more flexible glide path and let states extend their final 2030 deadline if a "clear path to meaningful reductions is evident within a reasonable timeframe."
The utility also wants states to get clearer credit for shutting down coal-fired power plants. As the rule is written, the company is concerned that a state could shut down a coal plant and not see a reduction in its emissions rate because both the emissions and the amount of power produced would decline.
The Missouri-based utility says its own plan could meet EPA's carbon emissions goals by 2035 and save $4 billion in costs while avoiding grid reliability problems related to early closures of coal plants.
Ameren is framing the white paper as offering "constructive alternatives" to EPA's plan, calling it "a case study in the benefits of Midwestern pragmatism."
Joe Power, vice president of regulatory affairs for Ameren, said the proposal is meant to highlight major concerns but also move forward negotiations with EPA.
An EPA spokeswoman said in response to a description of the proposal only that the agency is taking all comments into account.Core disagreements
Holly Bender, deputy director of the Sierra Club's Beyond Coal campaign, said Ameren's position marks a transition for the utility, and it will be interesting to see if others follow suit.
"This is a subtle but noticeable shift from where the company has been," Bender said. "I think that we are seeing a different Ameren than we would have seen five years ago."
Bender, however, disagrees that Missouri needs more time to comply.
"From where we sit, Missouri does not need more time to comply with the Clean Power Plan [and can comply] fairly easily based on things that have already happened or will happen by 2030," Bender said. "I understand Ameren's perspective on its fleet alone, but it's not relevant to whether Missouri can comply with the targets."
Power says Ameren could support the Clean Power Plan if EPA made the company's recommended changes. But Ameren still has major problems with the core of the regulation. The white paper argues that the carbon-reducing measures used to write state goals are based on flawed assumptions, that the rule would cause cost increases and reliability issues, and that EPA doesn't have legal authority to implement the proposal in the first place.
A press release on the white paper implies that making Ameren's changes could help EPA with legal challenges, although Power doubts the revisions would solve what Ameren sees as significant vulnerabilities. "It's certainly not going to call off the Murray lawsuit," he said, referencing an early challenge by coal company Murray Energy Corp., which aims to prevent EPA from finalizing the rule.
"My suspicion is that the rule is likely headed for litigation in any event," said Scott Segal, a partner at law firm Bracewell & Giuliani who runs an industry coalition called the Electric Reliability Coordinating Council. "That's because groups in the public interest community as well as the regulated community are likely to want to vindicate their interests."Focus on the interim
The trade group for investor-owned utilities, the Edison Electric Institute, is lobbying EPA for changes to make the rule more workable -- focusing heavily on replacing the interim compliance period that would begin in 2020 (Greenwire, Jan. 30).
The National Rural Electric Cooperative Association, many of whose members are highly dependent on coal power, has started to adopt a similar tone.
Electric cooperatives still have "concerns about the legality and feasibility of the EPA proposal," said spokeswoman Debbie Wing.
"However, if the rule goes forward," Wing said, "then here are some changes that co-ops advocate."
Those changes, like Ameren's proposal, include elimination of the interim 2020 goal and flexibility to extend the statewide compliance dates to at least 2035.
"EPA should also allow states to adjust the compliance date for any individual unit even further based on its remaining useful life, as determined by the state, and any final emission guideline must allow the states to respond to the wide range of sometimes unpredictable conditions that affect the nation's generating resources," Wing said.
Missouri's Public Service Commission focused heavily on the impracticality of the rule's interim goals and its timeline for meeting final targets in comments to EPA.
"To the extent substantial savings can be achieved by allowing a modest extension of the compliance deadline, while achieving the same level of reduction, the EPA should consider allowing such an extension," said Missouri PSC Chairman Robert Kenney.
Kenney has stressed that his state's suggestions are meant to improve, not impede, implementation of the rule.Limited reach
Even if other utilities follow suit and offer some support in exchange for revisions, they might still fight the rule.
In that vein, Bender said she hopes Ameren will also make clear that it doesn't want to "bog things down" in court or through lobbying efforts. Segal contends there's nothing "fundamentally inconsistent about discussing the legality and assumptions of a rule while at the same time saying there are changes that could make it better."
While Ameren may be showing that it's ready to play ball with EPA, staunch opponents of the rule may be unlikely to jump on the bandwagon.
The American Coalition for Clean Coal Electricity, which represents Ameren and other coal-reliant utilities and companies, didn't budge after hearing Ameren's proposal.
"EPA's plan is unworkable and legally flawed making any suggested changes a moot point in the grander scheme of things," ACCCE spokeswoman Laura Sheehan said in an email.
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Ameren Releases White Paper Offering Constructive Alternatives to EPA’s Clean Power Plan
Feb 11, 2015 | Ameren Press Release
By Joe Muehlenkamp
A white paper issued today by Ameren Corporation (NYSE: AEE) says that constructive and common-sense alterations to the Environmental Protection Agency’s Clean Power Plan (CPP) are needed to avoid imposing staggering costs on utility customers and significant risks to electric grid reliability. Ameren’s approach would achieve the same final CO2 emission reduction goals as EPA’s own plan while saving $4 billion in costs and avoiding grid reliability problems related to the premature closure of key coal fired power plants. Ameren’s GHG strategy proposes pragmatic changes to the EPA plan that include removing the plan’s interim targets that begin in 2020; enhancing interim reporting requirements by the states to ensure that progress is being made to achieve the 2030 target; allowing full credit for the retirement of coal-fired power plants; and allowing for a reasonable extension of the 2030 deadline if utilities are making substantive progress toward achieving the EPA’s final greenhouse gas (GHG) goals. Ameren’s modifications to the EPA plan would facilitate cost-effective compliance not only by Ameren, but by utilities around the country faced with complying with the agency’s proposal. Based on carefully calibrated projections of long-term regional supply-and-demand dynamics, Ameren’s GHG strategy relies on a diverse mix of coal, nuclear, natural gas and renewable energy resources, as well as the continuation of robustenergy efficiency programs. “The Ameren plan would save our customers billions of dollars while helping avoid substantial economic costs and consequences related to the potential degradation of electric reliability, long a bedrock component of America’s economic prosperity and widely admired standard of living,” said Warner Baxter, Ameren’s chairman, president and chief executive officer. “Ameren’s solution also substantially reduces greenhouse gas emissions and will, in the long run, achieve the same emission reductions as EPA’s proposed rule at a significantly lower cost while safeguarding our customers’ electricity supply.” Recognizing that the CPP will be subject to legal challenges, Ameren believes that the EPA could greatly enhance the adaptability and effectiveness of its CPP proposal with a few common-sense modifications: 2020 Targets: Replace EPA's interim target goals beginning in 2020 with a more flexible approach that provides states greater leeway in determining the proper glide path to achieve the agency's final GHG goals by 2030. Interim reporting: The EPA should establish enhanced interim reporting requirements by the states to facilitate monitoring and to ensure progress is being made to achieve the final 2030 targets. Performance Metrics: Revise the compliance formula to provide proper credit under EPA's rate-based method for retiring, and not replacing, existing coal-fired power plants with fossil generation – thus giving full credit where credit is due. Graduation Dates: Offer states the flexibility to extend the 2030 deadline if a clear path to meaningful reductions is evident in a reasonable time frame. Under the Ameren GHG strategy, by 2035 Ameren would retire more than 1800 MW (about one-third) of its coal-fired fleet, add approximately 500 MW of renewable generation, extend the license of its 1200 MW Callaway Nuclear Energy Center, add a 600 MW natural gas combined-cycle unit, and continue to offerrobust energy efficiency programs. “Ameren has developed a clear path to significantly cut greenhouse gas emissions without inflicting needless pain upon our customers,” Baxter said. “The modifications we propose to the EPA’s Clean Power Plan reflect Midwestern values of prudence and practicality and create a more workable alternative to the agency’s proposed rule by offering a solution to help address unreasonable assumptions built into the plan’s building blocks. Our approach provides important environmental and climate benefits while saving customers billions of dollars and preserving the reliable service U.S. citizens have enjoyed for decades. We hope our proposal sparks a constructive conversation among all involved in this important issue.” Baxter further discussed the context of Ameren’s proposal in a recent article in EM Magazine. You can download this article and the full White Paper here. St. Louis-based Ameren Corporation powers the quality of life for 2.4 million electric customers and more than 900,000 natural gas customers in a 64,000-square-mile area through its Ameren Missouri and Ameren Illinois rate-regulated utility subsidiaries. Ameren Illinois provides electric delivery and transmission service as well as natural gas delivery service while Ameren Missouri provides vertically integrated electric service, with generating capacity of 10,300 megawatts, and natural gas delivery service. Ameren Transmission Company of Illinois develops regional electric transmission projects. Follow the company on Twitter @AmerenCorp. For more information, visit Ameren.com.
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Inhofe, EPA Air Chief Spar Over Clean Power Plan
Feb 11, 2015 | E&E - Greenwire
By Jean Chemnick
One of the Senate's most powerful critics of U.S. EPA regulation today gave a preview of his strategy to go on offense against his chief oversight target for the new Congress -- the Clean Power Plan.
Senate Environment and Public Works Chairman James Inhofe (R-Okla.) presided over the first of what he promised would be many hearings on the draft rule, peppering EPA air chief Janet McCabe with questions about the wisdom and effectiveness of EPA's carbon dioxide proposal for existing power plants.
The climate skeptic promised a hearing to examine the science underlying EPA's carbon dioxide rules -- which he said had not yet established a link between human emissions and warming.
"You keep saying 'science is settled, science is settled, science is settled' -- that is not the case," the chairman told McCabe.
He also placed a special emphasis on global greenhouse gas emissions, noting that China has overtaken the United States as the world's largest greenhouse gas emitter and arguing that proposals like the Clean Power Plan will do little to bring down atmospheric CO2 if China's emissions continue to grow.
China is growing its emissions much faster than U.S. policy is reducing them, he argued, and by moving unilaterally to cut emissions, the United States is placing itself at a competitive disadvantage compared with large emerging economies -- an advantage that they are looking forward to exploiting.
"They just sit back and they smile," Inhofe said.
McCabe countered that the agreement announced jointly by the United States and China in November 2014 obligated China to stop growing its emissions no later than 2030 -- the first time China has made such a commitment. And China has promised to ramp up its non-fossil fuels power sources to 20 percent by the same year -- both significant pledges, she said.
McCabe added that if no country acts until the rest of the world did, climate change would become a "tragedy of the commons." The United States has a larger per capita carbon footprint than other large emitters, she said, and "we believe it's essential for the United States to be asserting and showing leadership."
E&E’s Power Plan Hub keeps you up to date on the latest national and state-level developments on EPA’s greenhouse gas regulations for the power sector. Go to E&E's Power Plan Hub.
Other panel Republicans took aim at the construction of EPA's power plant draft. Sen. Deb Fisher (R-Neb.) questioned the agency's assumption in the rule that all coal-fired power plants can achieve a 6 percent carbon reduction through onsite efficiency improvements. Sen. Roger Wicker (R-Miss.) -- who called the rule "EPA's most blatant overreach so far, and there have been a number of them" -- said he was concerned the rule would force Mississippi to shutter its coal-fired power plants before the end of their useful lives. Several members raised reliability concerns about the rule, citing reports by the North American Electric Reliability Corporation and others.
Inhofe said he planned to hold several other hearings on the EPA rule, including one with regulators from states that have expressed grave concerns about its implications.
McCabe pledged to work with state regulators ahead of finalizing the rule and repeated that the agency is still wading through roughly 2 million comments on the draft. The draft's 15-year phase-in should allow utilities to prepare for its eventual 2030 target, she said.
And McCabe volunteered that many of those comments named the rule's interim emissions-reduction target as a chief concern. States, industry, and others questioned whether states could phase in significant reductions beginning in 2020 -- as the proposal envisions.
"That is something we are looking very, very closely at," she told the committee.
But McCabe said she expects most states to comply with the rule, which is due to be final this summer, with state plans to be submitted starting next year. And she told the committee that EPA is in the process of constructing a federal implementation plan both to help guide states in that process and to demonstrate what the result would be if some states opt not to submit an approvable implementation plan.
"I want to be clear that EPA's strong preference, as is always the case, is that states will submit their own plans, tailored to their specific needs and priorities," she said in her opening remarks. She said she expected most states to do so. But the federal plan "is an important step to ensure that our Clean Air Act obligations are fulfilled," she added.
Democrats called the rule flexible and necessary. Sen. Sheldon Whitehouse (D-R.I.) said Republicans on the panel refused to consider that climate change has an economic cost, as well, especially to states like his own that are vulnerable to sea-level rise. The way power sector carbon is addressed is important, he said.
"I'm keenly aware of what the economic damage will be if we get this wrong in West Virginia, Wyoming and Arkansas and other states, and I'm willing to work with my colleagues to see what we can do to get that right," Whitehouse said. "But I cannot have a situation in which the other side refuses to acknowledge the reality of what is happening in Rhode Island, what is happening in Maine, what is happening in Oregon, what is happening around the world and around the country because carbon pollution ... is cooking our environment."
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GAO Lists Energy, Environment Programs on 'High Risk List'
Feb 11, 2015 | E&E - Greenwire
By Kevin Bogardus
The Government Accountability Office included several energy and environment government programs on its list of federal projects at high risk of waste and fraud.
Released today, GAO's "high risk list" cites wide-ranging problems across the federal government, ranging from Medicare and Medicaid to the IRS, as well as cybersecurity and care of military veterans. GAO issues the report every two years at the start of the new Congress.
Also included on the watchdog's report are the Department of Energy's handling of radioactive waste sites; U.S. EPA's backlog in assessing toxic chemicals; funding to repair and rebuild the nation's crumbling infrastructure; a potential gap in weather data as more satellites fall into disrepair; and managing climate change risks to the federal government.
Both the Senate Homeland Security and Governmental Affairs and the House Oversight and Government Reform committees are holding hearings on the GAO report today.
"The high risk list is all about identifying agencies and areas of government that are vulnerable to waste, fraud, abuse and mismanagement," Sen. Ron Johnson (R-Wis.), chairman of the Senate panel, told reporters when announcing the release of the report.
Some of these programs have been included on the list since its first iteration in 1990, such as DOE's management of nuclear waste sites.
"Twenty-five years on the list is wholly unacceptable," said Rep. Jason Chaffetz (R-Utah), chairman of the House committee.
Others are relative newcomers, such as weather satellites and climate change, which were first included on the list in its last edition in 2013.
One issue that threatens the entire federal government is the coming retirement wave among agency employees, which will result in vital skills leaving the workplace. GAO estimates that about 30 percent of federal workers at the end of fiscal 2013 will be eligible to retire by 2018.
GAO also included two new areas of high risk for the government this year.
One of those additions is the mismanagement at Veterans Affairs health care facilities, which exploded into a national scandal last year after reports of lengthy delays in care for veterans. The other addition to the GAO list is federal information technology, which is often faced with cost overruns and blown deadlines.
The watchdog also expanded two areas for high risk, which are enforcement of tax laws -- the IRS estimates it paid $5.8 billion in fraudulent tax refunds in 2013 -- as well as federal cybersecurity that has been faced with more threats in recent years.
Many government programs, despite promises from their agency supervisors and recommendations on how to improve from GAO, have remained stubbornly on the list over the years.
EPA's chemical assessment program has been on the list since 2009. It seems that may remain a high risk for years to come, according to GAO.
"Of the 83 chemicals EPA prioritized in 2012 for risk assessment, 4 have been completed as of January 2015. As we previously reported, it may take several years to complete the initial risk assessments and, at the agency's current pace, more than a decade to complete all 83," the watchdog warned in its report.
Since 2007, funding for the national surface transportation system has been considered a high risk by GAO. Revenue for the Highway Trust Fund has been eroding for years with the Congressional Budget Office estimating last year that $157 billion is needed to maintain current spending levels between 2015 and 2024.
GAO recommends legislation by Congress to fix the problem, but lawmakers remain mired in debate over how to best fund new infrastructure projects, including whether to raise the federal gas tax. In the meantime, Capitol Hill has passed short-term appropriations bills for the highway fund.
One of GAO's longtime offenders for risky programs is DOE, specifically the department's Office of Environmental Management and National Nuclear Security Administration. Those two federal agencies help run the government's cleanup of nuclear waste sites across the country.
This area has been on the list since it was created by GAO in 1990. GAO reported in 2013 that the department has made progress in managing its cleanup efforts, but that was not the case this year. The watchdog said that "we did not observe similar progress in DOE's management of major projects. EM and NNSA struggled to stay within cost and schedule estimates for most of their major projects."
Waste and research sites run by DOE at Hanford, Wash.; Los Alamos National Laboratory in New Mexico; Oak Ridge, Tenn.; and Savannah River, S.C., were specifically cited by GAO for recurring problems.
Climate change also remains a high risk to the federal government, according to GAO. The watchdog argues that agencies need to reduce their fiscal exposure to extreme weather and rising sea levels due to the government's role as an extensive property owner and insurer, as well as providing the bulk of disaster aid.
In addition, the government could go blind when it comes to predicting extreme weather that could result from climate change. GAO included again on its list warnings from National Oceanic and Atmospheric Administration officials about a looming "satellite data gap" that would lead to less accurate and timely forecasting, placing lives in danger.
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Energy Policy Insanity, From Both Sides
Feb 11, 2015 | The Hill - Pundits Blog
By Erik Molvar
I live in the resource colony of Wyoming, so when I woke up last week I heard Sen. Mike Enzi (R-Wyo.) and Rep. Cynthia Lummis (R-Wyo.) expounding on the nation's energy policy. Said Enzi of President Obama: "He has no energy policy. He's anti-energy and he's doing everything he can to stop it and he's successful on all the public lands."
Lummis commented on the unusually low price of gasoline at the pump as follows: "It is — it is really low and it's because it is a global market. But when we restrict the production of oil and gas from federal land, when we don't allow things like the Keystone pipeline, we minimize our ability to make the current price of gasoline sustainable." The Obama administration should be blamed, the narrative goes, for America's faltering energy industry, even though American fossil fuel production is presently glutting markets on every hand.
Obama's energy policy isn't much more coherent. We've had "all of the above" as an energy goal (translation: whatever works). This year's State of the Union address included the tidbit "today, America is No. 1 in oil and gas," as if the federal government had much to do with it. Even as the president closes the Arctic National Wildlife Refuge to drilling, he proposes opening up offshore drilling off the southeast Atlantic coast as if we learned nothing from the BP Deep Horizon spill and its destruction of marine ecosystems in the Gulf of Mexico.
Despite a strong recognition that extracting reserves of underground carbon and burning them has led directly to record high temperatures in 14 of the 15 first years of this century, the Obama administration appears unwilling to choose a different future.
Domestic oil production is at record levels. Not because of the Obama administration's policies, and certainly not because Obama's policies have done much to obstruct the oil industry. The political rhetoric from both sides is false. The boom in oil production arises from a rapid expansion of new fracking methods in a market so free from regulation (for human health and safety, or otherwise) that production amounts to a free-for-all.
Here's the reality. Federal lands contain sizable deposits of natural gas and coalbed methane, strong potential for renewable energy in places, but not much oil.
For decades, the oil and gas industry has virtually dictated the management of drilling on federal lands and minerals, and the Obama administration has made some minor incremental changes to this process that permit a little more public review, at least at the leasing stage. Regardless of your position on this incrementalist regulatory approach on public lands — too little, long overdue or government overreach — natural gas is in a bust cycle because excessive production during the George W. Bush administration glutted the market.
Meanwhile, the fracking boom, with its threat of groundwater contamination, is tapping newly discovered oil deposits almost entirely on private lands. There is precious little oversight from government agencies — from the Environmental Protection Agency (EPA), the states or local county governments — over oil and gas drilling and development on private lands. The pace and scale of development is controlled by oil corporations, and if you don't own the minerals under your land, your private property rights won't even give you, as a landowner, much say in how this unfolds.
Oil companies don't even have to comply with the Safe Drinking Water Act, thanks to the infamous "Halliburton loophole" emplaced in the 2005 Energy Policy Act, which exempts fracking operations from having to comply with the Safe Drinking Water Act. There's simply no safety net, and no accountability for bad actors when things go wrong as they so often do.
As the North American fracking boom injects major new crude onto global markets, the Saudis have decided to keep supplying global oil markets with cheap Middle Eastern crude, pushing oil prices below $50 a barrel. If this trend continues, you can expect the North American fracking play to grind to a standstill. The blame (or credit, depending on your perspective) for the coming drilling shutdown goes not to Congress or the White House, but to the greed of the oil industry itself.
Neither party appears to have a coherent energy policy.
On the right, "drill, baby, drill" is producing booms and busts that are bad for the economy; toxic spills that threaten ecosystems and human health; fracking that potentially degrades irreplaceable supplies of clean water; global warming and extremes of climate; and the sprawl of oil and gas fields and strip mines that are destroying public lands and wildlife habitats.
On the left, "all of the above" is producing exactly the same result, with a side order of fuel-efficient cars and a few more renewable energy projects. Perhaps the problems are on a smaller scale and perhaps there is a little extra accountability, but the massive problems caused by our addiction to fossil fuels are hardly diminishing.
What is needed is a fundamental shift in energy policy, bold leadership to take our energy economy is a new direction. One day, the oil and gas and coal will inevitably run out, and we'll have to shift away from fossil fuels. Why not do it today and start the benefits sooner? Clean air, uncontaminated waters, healthier wildlife populations and energy self-sufficiency on a local scale await this transition. Already, model homes have been developed that get all their electricity from the sun, with enough to spare to power an electric car.
When every home and office building is producing its own electricity, the pressure for more transmission lines, pipelines, oilfields, strip mines and other dangerous, dirty and politically controversial projects will ease considerably.
But achieving this future will require hard-nosed leadership. Today, both parties seem to prefer standing on the sidelines and looking to the fossil fuel industry to lead. Alcoholics Anonymous defines insanity as "doing the same thing over and over again and expecting different results." Let's try something different on energy policy, for a change.
Molvar directs the Sagebrush Sea Campaign for WildEarth Guardians, a nonprofit conservation group dedicated to protecting wildlife, wild places, wild rivers and the health of the American West.
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TransCanada Disagrees with U.S. EPA on Keystone Carbon Footprint
Feb 11, 2015 | Reuters
By Swetha Gopinath
TransCanada Corp said it rejected the U.S. Environmental Protection Agency's inference that its Keystone XL pipeline would increase the rate of oil sands production at lower oil prices, and raise greenhouse gas emissions.
The U.S. State Department, which is evaluating the pipeline, is expected to make a recommendation to President Barack Obama, after reviewing comments from the EPA and other federal agencies.
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Feb 11, 2015 | The Hill - E2 Wire
By Timothy Cama
The company planning to build the Keystone XL oil pipeline said there’s no reason to reevaluate its environmental impacts.
TransCanada Corp. said in a letter to the State Department released Wednesday that the federal government has “fully and completely” evaluated the potential impacts, and there’s no need to reexamine that conclusion in light of the six-year low in oil trading prices.
The letter came in response to comments that the Environmental Protection Agency (EPA) sent to State last week saying that Keystone might spur additional development of Canada’s oil sands — and cause carbon dioxide emissions — that wouldn’t happen without it because of low oil prices.
“These conclusions are not supported by the facts outlined in the [environmental impact statement] or actual observations of the marketplace since TransCanada submitted its first application for the project in 2008,” TransCanada chief Russ Girling wrote to top State officials Tuesday. The company released the letter Tuesday.
The EPA’s letter provided ammunition for environmentalists opposed to the project. Both Keystone’s backers and opponents agreed that it could give President Obama political cover for if he decides to reject the pipeline’s permits.
The agency said that State’s environment assessment was based on oil prices of $65 a barrel at a minimum, not the $50 or so in more recent trading. Building Keystone might provide an economic incentive to mine the expensive oil sands, the EPA said.
But Girling argued that Canada’s oil sands are being developed regardless of Keystone.
“Even with price volatility, oil has been making its way to market,” he wrote. “Oil sands and U.S. Bakken production are both up by one million barrels per day since 2008. So it is clear that building or not building Keystone XL will not cause production to go up or down nor does the pipeline significantly exacerbate the problem of GHG emissions.”
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EPA's Wrong About Pipeline's Climate Impacts -- TransCanada
Feb 11, 2015 | E&E - Greenwire
By Manuel Quiñones
Keystone XL developer TransCanada Corp. rebuts U.S. EPA warnings about the hot-button project's potential climate impacts in a letter sent yesterday to the State Department.
At issue are EPA's concerns about State's final supplemental environmental impact statement that concluded the project itself wouldn't have a significant impact on global greenhouse gas emissions because crude the Canada-to-U.S. pipeline would carry would find its way to market by rail or other means if the pipeline weren't built.
EPA urged State early this month to revisit its analysis in light of plunging oil prices because KXL could provide a lower-cost transport option for Canadian oil sands companies and, therefore, boost production. State's review does say KXL could have an impact on production with sustained oil prices between $65 and $75 per barrel (Greenwire, Feb. 3).SPECIAL REPORT
A look at the far-reaching debate on the Keystone XL pipeline, which could change the energy and economic agenda for both the United States and Canada. Click here to view the special report.
Brent crude -- the benchmark for most of the world's oil -- was trading this morning at less than $55 a barrel.
"Given recent large declines in oil prices and the uncertainty of oil price projections," EPA told State, "the additional low price scenario included in the Final SEIS should be given additional weight during decision making, due to the potential implications of lower oil prices on project impacts, especially greenhouse gas emissions."
But TransCanada sought to counter EPA with its own letter to State yesterday.
"TransCanada recognizes EPA's concerns related to increased carbon emissions and the need for sensible public policy frameworks focused on reducing emissions," CEO Russ Girling told State. "However, it is clear from the factual record generated by the Department that the Project will not contribute to increased GHG emissions."
Girling said TransCanada disagreed with EPA that lower oil prices would encourage production. He said EPA misread State's environmental review documents.
"This conclusion that one pipeline does not drive the level of oil sands production underpins the Department's finding that the proposed Project is unlikely to significantly affect the rate of extraction in oil sands," he wrote. "The EPA statement directly conflicts with this conclusion."
Girling reiterated long-standing TransCanada arguments, including efforts by oil sands producers to reduce greenhouse gas emissions. He also said it was unfair to compare the oil KXL would carry to light crudes with a lower greenhouse gas footprint.
"TransCanada submits that the more meaningful comparison should be to the heavy crude oils actually being displaced by the Project," wrote Girling, "rather than to a basket of reference crudes that includes light, low-GHG crudes."
TransCanada, which has complained about delays in approving KXL, said it would support State if it wanted to revisit the issue.
But Girling cautioned, "In updating the market assessment and related conclusions, however, the Department should take note that history has demonstrated short- and medium-term fluctuations in oil prices do not significantly impact whether the oil sands resource will be developed."
TransCanada's letter comes as State prepares to wrap up its review of the project but also as the Republican-controlled House prepares today to approve legislation to bypass the administration's review and approve KXL.
With President Obama threatening to veto the bill, House Speaker John Boehner (R-Ohio) this morning said the president was standing with "left fringe extremists and anarchists."
"The president needs to listen to the American people and say, 'Yes, let's build the Keystone pipeline,'" Boehner said.
In response to today's planned vote, the Natural Resources Defense Council released aletter from dozens of scientists to President Obama and Secretary of State John Kerry, urging them to quash KXL.
And Jim Lyon, conservation policy vice president for the National Wildlife Federation, said, "The Keystone XL tar sands pipeline would harm wildlife every step of the way. President Obama did the right thing for our wildlife, clean water and climate by rejecting Keystone XL when Congress tried to push it through back in 2012, and we're confident he’ll do it again now."
Click here to read the EPA letter.
Click here to read TransCanada's rebuttal.
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Scientists, Economists Press Obama to Reject Keystone
Feb 11, 2015 | The Hill - E2 Wire
By Laura Barron-Lopez
More than 90 scientists and economists on Wednesday urged President Obama to reject the Keystone XL pipeline.
In a letter sent to Obama and Secretary of State John Kerry on Wednesday ahead of a House vote on legislation that would approve the project, scientists and economists argued the pipeline would "exacerbate climate change by unlocking" oil sands development.
“Once again, we strongly urge you to reject the Keystone XL tar sands oil pipeline as a project that will contribute to climate change at a time when we should be doing all we can to put clean energy alternatives in place,” the letter circulated by the Natural Resources Defense Council states.
“As you both have made clear, climate change is a very serious problem. We must address climate change by decarbonizing our energy supply."
The scientists and economists cited a statement Obama made early in the pipeline's review process that he would not approve the project if it "significantly" contributed to global warming and said approval of the project would go against his "climate test."
Science educator Bill Nye is among those who signed the letter, which also touched on the recent comments released by the Environmental Protection Agency that questioned the limited impact the administration previously thought the pipeline would have on climate change.
The letter, which was also signed by scientists from the University of California, Berkeley; Princeton; Stanford; Harvard and more, comes as Obama is preparing to veto legislation that would bypass the administration's review process to approve the $8 billion project.
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Boehner: Obama Siding with 'Extremists and Anarchists' on Keystone
Feb 11, 2015 | The Hill - E2 Wire
By Timothy Cama
Speaker John Boehner (R-Ohio) on Wednesday accused President Obama of pandering to the radical left with his threat to veto the Keystone XL bill.
“Instead of listening to people, the president is standing with a bunch of left-fringe extremists and anarchists,” Boehner told reporters Wednesday.
“The president needs to listen to the American people and say, ‘Yes, let's build a Keystone pipeline!’ ”
The House is scheduled to vote today on a Senate bill that would approve construction of the pipeline, overruling the administration's review of the project.
GOP lawmakers are portraying the expected Keystone veto as an example of Obama obstructing a bipartisan, job-creating proposal with wide public support.
“We build pipelines all around America every single day,” Boehner said.
“Keystone has been reviewed and approved numerous times. Even the president’s own State Department will say that it creates 42,000 new jobs.”
The figure from the State Department’s review of Keystone refers to the total jobs the pipeline would support, including temporary construction positions. The project would create 35 permanent positions.
Earlier Wednesday morning, Senate Majority Leader Mitch McConnell (R-Ky.) pleaded with Obama on the Senate floor to reconsider his veto threat and “sign this jobs and infrastructure bill.”
He similarly accused Obama of listening to a select group instead of the overall voice of the American people.
“Powerful special interests may be demanding that the president veto Keystone jobs, but we hope he won’t,” McConnell said.
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McConnell Urges Obama to Reconsider on Keystone
Feb 11, 2015 | The Hill - E2 Wire
By Laura Barron-Lopez
Senate Majority Leader Mitch McConnell urged President Obama on Wednesday to alter course and sign the bill approving construction of the Keystone XL oil sands pipeline, after the House votes on it.
The Kentucky Republican told Obama from the Senate floor to "sign this jobs and infrastructure bill" ahead of Wednesday's vote in the House on legislation that would approve the Canada-to-Texas pipeline.
The House will vote on the Senate bill passed last month, which includes amendments on climate change and energy efficiency.
"The Keystone jobs bill is just common sense," McConnell said. "That's why this bipartisan legislation already passed the Senate with support from both parties. That's why labor unions support it."
McConnell pressed Obama to change his mind and not follow through on his veto threat.
“Powerful special interests may be demanding that the president veto Keystone jobs, but we hope he won’t," McConnell said.
Republicans have started to paint Obama as an obstructionist ahead of the veto, hoping to turn the tide against the administration.
The White House did not issue another veto threat ahead of the House vote, but officials reiterated the president's position and said the veto threat stands.
Obama has said repeatedly that he does not want Congress to circumvent the ongoing State Department process, which is nearing the finish line after a six-yearlong review of the pipeline's permit.
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Smart, Bipartisan Energy Policy Lurks Beneath Keystone Debate
Feb 11, 2015 | The Hill - Congress Blog
By Jeff DeBoer
There’s no shortage of hyperbole from all sides regarding the inflated “pros” and “cons” of the Keystone XL pipeline. Lost in this debate is a widely popular, bipartisan proposal supported by Congressional Republicans and Democrats of all stripes and scores of business groups and environmental advocates alike. It would boost energy efficiency in our nation’s buildings, help reduce our dependence on foreign oil while also curbing harmful carbon emissions.
This proposal – known as “Tenant Star” – passed the Senate as an amendment to the Keystone bill two weeks ago, in a lopsided 94-5 vote. Last March, it passed the House by an overwhelming 375-36 margin. Everything about “Tenant Star” aligns with the Obama administration’s commitments to address climate change while also making our built environment and infrastructure competitive in the 21st century. The only thing not working in favor of “Tenant Star” is timing. The House and Senate couldn’t get on the same page to pass it during last year’s session and now it’s being weighed down by the ballast of Keystone politics.
Commercial and residential buildings – and the tenants and occupants who live, work, and play in them – have a big role in shaping national energy policy. All buildings account for about 40 percent of U.S. energy consumption. In a given building, 50 percent or more of its energy use can be attributed to the design choices and habits of their occupants. “Tenant Star” would go a long way to encourage landlords and tenants to cooperate on shared goals to lower energy use in their buildings. It would provide powerful branding and labeling opportunities for teams of building owners and their tenants to signal to the market that leased spaces are designed and optimized for high performance and sustainable operations.
Moreover, “Tenant Star” comes at no cost to tax payers. Pension funds and other entities driven by socially responsible investment platforms would be drawn to buildings that boast leased spaces with “Tenant Star” labels.
“Tenant Star” builds are the overwhelming success of the ENERGY STAR program administered by the U.S. Environmental Protection Agency. The program also does not rely on heavy-handed, “one size fits all” federal regulations, but rather on the power of public-private partnerships to use energy more efficiently at no sacrifice to businesses or consumers.
While the current ENERGY STAR is available as a rating for an entire building, the missing part of the equation is to recognize leased spaces within those buildings that strive for and achieve high levels of energy efficiency. That’s where “Tenant Star” would come in and fill the gap in EPA’s existing program.
EPA estimates that more than 20,000 buildings in the U.S. are certified under the ENERGY STAR program. Important strides have been made, but there’s room to improve. The agency further estimates that increasing energy efficiency by 10 percent in commercial and industrial space would save tenants $20 billion and prevent greenhouse gas emissions equivalent to the emissions from about 30 million vehicles. Considering the huge impact that building occupants have on energy consumption, “Tenant Star” can significantly assist the real estate sector’s efforts to build and manage state-of-the art, innovative, and sustainable buildings.
Congress has already demonstrated its willingness to support this commonsense approach to energy efficiency and environmental consciousness. Not all energy proposals are a source of contention for Democrats and Republicans, and “Tenant Star” demonstrates this reality. As we move past pipeline politics, members of Congress and the president should carefully think about how the “Tenant Star” proposal can further their shared economic, energy and climate goals. Now is the time for Congress to send legislation to the president’s desk that would implement this sound policy to boost our nation’s economy and protect our environment.
DeBoer is president and CEO of The Real Estate Roundtable.
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Mass. Town Challenges FERC's Right to Permit Pipelines Linked to Gas Exports
Feb 11, 2015 | E&E - Energywire
By Colin Sullivan and Hannah Northey
Federal energy regulators are facing an innovative constitutional challenge aimed at their ability to regulate natural gas pipeline developers that may have future export traffic in mind.
A tort action claim from the town of Deerfield, Mass., against the Federal Energy Regulatory Commission filed last week is meant to block a proposed Kinder Morgan pipeline application there. The case is notable for its unique assault on FERC that could spark far-reaching implications if the agency decides to award damages or if it goes to court.
The claim accuses FERC of negligence under the Federal Tort Claims Act and was sent to FERC, the Energy Department and the U.S. attorney general by a local lawyer, Cristobal Bonifaz, who is representing the town free of charge "because the issue is of critical importance," he said.
Bonifaz argues that changes to the Natural Gas Act in 2005 meant to give FERC more leeway to involve itself in export infrastructure are not constitutional because selling gas to foreign nations is not in the public interest of the United States.
The claim cites two reasons for why that is so. First, it says exporting liquefied natural gas "depletes a national resource for future usage ... without bringing any benefit whatsoever to the public interest." Second, the claim argues that burning gas in other countries contributes to "the catastrophe of climate change" and adds costs at home to deal with it.
Bonifaz goes on to write that the 2005 amendments to the NGA are unconstitutional because a Fifth Amendment takings claim is not justified. "FERC has been negligent in not realizing this constitutional flaw," the claim states.
The Fifth Amendment says private property may not be taken for public use "without just compensation," and Bonifaz insists that foreign trade in LNG that enriches a private company does not rise to the level of public interest.
"Once trade benefit is accepted as public interest, Congress could allow the taking of virtually any private property that could more profitably be marketed abroad," he wrote.
The claim follows a vote by the Deerfield Board of Health in December that attempts to reject Kinder Morgan subsidiary Tennessee Gas Pipeline Co.'s proposed route through the town for the Northeast Energy Direct project.
The proposed line would bring Marcellus Shale gas from Pennsylvania to New England across a more-than-300-mile route at a cost somewhere between $3 billion and $5 billion. A three-state activist coalition recently formed in an attempt to block the line after Kinder Morgan last year revised much of its route to avoid parts of Massachusetts in favor of southern New Hampshire (EnergyWire, Feb. 2).
The claim also demands FERC pay Deerfield $674 for the cost of a public hearing on the issue. If FERC does award damages within six months, the matter could end up in federal court.
Bonifaz in interviews said he believes this is a precedent-setting case and pledged to file a lawsuit against FERC if the agency does not find in Deerfield's favor. As part of his argument, Bonifaz cited a study by a Deerfield Energy Resources Committee that found New England does not need all the gas that would travel through Northeast Energy Direct, so it must be headed for export capacity, he surmised.
Richard Wheatley, a Kinder Morgan spokesman, would not comment on such questions.
"The FERC is the appropriate oversight agency," he said.
FERC does not comment on pending cases. But with respect to jurisdiction matters, a spokesman noted that the commission approves the location, construction and operation of interstate pipelines as well as facilities and storage fields involved in moving natural gas across state boundaries.
Bonifaz added that he reached out to some prominent environmental groups, including the Environmental Defense Fund, but was told they would not get involved.
"They basically told me, 'No, we cannot get into that kind of litigation because we get support from people who support gas exports,'" he said. "There's a lot of push to see gas exported."New England's 'grass-roots resistance'
Marc Spitzer, a former FERC commissioner and now a partner at Steptoe & Johnson, said Bonifaz appeared to be making an argument that other pipeline and export opponents have not yet made, but he does not expect it to move far.
The argument, he said, appears to be political in nature -- not legal -- and is one that the Obama administration and the commission have rejected in the past.
"I don't think it'll work, but you never know," Spitzer said. "He's challenging the constitutionality of the statute, and the constitutional defect he asserts is that LNG exports are per se contrary to the U.S. public interest. I don't think that's a theory that works, but that's what we have courts for."
Emily Kirkland, communications coordinator for the Better Future Project, which works closely with 350.org in Massachusetts, said the litigation is one tactic among many "in an ongoing campaign that has created a grass-roots resistance that is really remarkable."
Kirkland explained that the campaign calls for "no new fossil-fuel infrastructure in Massachusetts."
"The volume of gas that they are proposing to transport is disproportionate to the needs of New England," she said. "We think the state is ready to stop building fossil fuel infrastructure entirely."
Kinder Morgan counters on its website that the sunset of nuclear power in the region and New England's isolation from energy production areas means residents there will continue to be subject to the whims of price spikes during peak demand periods.
Click here to view the claim letter to FERC.
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High Levels of Benzene Found in Fracking Waste Water
Feb 11, 2015 | LA Times
By Julie Cart
Hoping to better understand the health effects of oil fracking, the state in 2013 ordered oil companies to test the chemical-laden waste water extracted from wells.
Data culled from the first year of those tests found significant concentrations of the human carcinogen benzene in this so-called "flowback fluid." In some cases, the fracking waste liquid, which is frequently reinjected into groundwater, contained benzene levels thousands of times greater than state and federal agencies consider safe.
The testing results from hundreds of wells showed, on average, benzene levels 700 times higher than federal standards allow, according to a Times analysis of the state data.
The presence of benzene in fracking waste water is raising alarm over potential public health dangers amid admissions by state oil and gas regulators that California for years inadvertently allowed companies to inject fracking flowback water into protected aquifers containing drinking water.
The federal Environmental Protection Agency called the state's errors "shocking." The agency's regional director said that California's oil field waste water injection program has been mismanaged and does not comply with the federal Safe Drinking Water Act.
The discovery adds urgency to a mounting list of problems at the state Division of Oil, Gas and Geothermal Resources, which regulates the oil and gas industry.
State officials attribute the agency's errors to chaotic record-keeping and antiquated data collection. And they emphasize that preliminary tests on nine drinking water wells have found no benzene or other contaminants.
"The problem is foundational and it's serious," said Steven Bohlen, who took over the troubled Division of Oil, Gas and Geothermal Resources seven months ago.
The Times analyzed self-reported testing results that oil well operators submitted to the state for the first time in 2014, complying with new fracking regulations that legislators approved in 2013. The law requires well operators using so-called well stimulation techniques such as fracking, steam injection and acidizing to report water testing results to an online database. It grew out of fears about health risks from chemicals used in fracking, in which a slurry of chemicals is injected underground to unlock deposits of oil or gas.
The raw data, compiled by the Center for Biological Diversity, showed that 98% of waste water samples taken from 329 fracked oil wells exceeded federal and state water quality standards for benzene concentrations.
The data publicly reveal, for the first time, the components of oil production fluids that companies dispose of by pumping them into underground waste wells. Those wells are now the subject of federal and state review: The state Division of Oil, Gas and Geothermal Resources recently conceded that for decades it erred by allowing oil companies to dispose of drilling waste water through more than 170 disposal wells bored into aquifers that contained water classified as clean by federal law.
The EPA contends that an additional 279 disposal wells were drilled into aquifers containing water suitable for drinking if treated. An additional 48 waste wells were allowed to discharge in aquifers that lack any water quality classification, federal regulators say.
Waste disposal wells are legally required to be sited in aquifers that contain water too contaminated for human consumption or agricultural use.
The data that oil companies reported to state regulators, however, probably do not account for the full extent of benzene present in fracking flowback. Many operators failed to comply with reporting requirements. And at least 150 reported some results but either failed to test for or provided no data for benzene and a host of other dangerous contaminants.
California oil wells often produce 10 or more gallons of water for each gallon of oil that comes out of the ground. Operators dispose of drilling wastewater either by injecting it into a disposal well or dumping into a pit.
Bohlen said determining the extent of potentially illegal well placement is hampered by the agency's haphazard record keeping. Many of the Division of Oil, Gas and Geothermal Resources' files, including documents that would shed light on where waste water wells are operating, exist only on paper, and each district office in the state organizes them differently, he said.
Jared Blumenfeld, the U.S. Environmental Protection Agency's regional administrator, hesitated to call the state's record-keeping system dysfunctional "because there isn't any system."
Hollin Kretzmann, an attorney for the Center for Biological Diversity, which is monitoring the injection program, said the situation is "a disaster. The aquifer information is a complete mess. They are trying to piece it all together — in some cases decades after these injections started."
The EPA has the authority to administer federal water laws, but a 1983 agreement gave California the responsibility for monitoring water quality in its injection well program.
The state is required to submit periodic reports to the EPA, but the federal agency has long complained that the documents have been late and incomplete.
An audit in 2011 exposed widespread, systemic problems and the EPA concluded that the Division of Oil, Gas and Geothermal Resources had lost control of its well injection system.
The report cited concerns that included the training of inspectors, the frequency of inspections and the lack of clarity about the location of clean water sources. Bohlen said some of the issues have already been addressed.
Those problems are more troubling because oil operators are disclosing the content of the waste and authorities better understand where it is going.
In December, the EPA gave the Division of Oil, Gas and Geothermal Resources until last week to submit a plan to safeguard drinking water and two years to implement much of it. The federal government has the authority to revoke California's right to manage water associated with the state's extensive oil and gas operations. In a conference call with reporters Monday, Bohlen unveiled the plan and said "we are focused on the fixes."
Blumenfeld said the EPA is directing $500,000 to help California establish a baseline for water quality.
Environmental groups and some public health advocates are calling on authorities to test all of the affected aquifers.
Benzene is often part of the chemical cocktail — along with sand and large amounts of water — injected into oil-bearing formations to break open fissures for oil or gas to escape. Benzene also occurs naturally in some areas and may account for its presence in oil field wastewater.
Regardless of the source, benzene is potentially dangerous to humans, experts say.
Timothy Krantz, a professor of environmental studies at the University of Redlands, said that when he initially saw the levels of benzene in the test results he thought there was a reporting error. "They are just phenomenal numbers," he said.
Fracking and other well-stimulation techniques have been divisive issues in communities across the country. Some cities have banned the practice outright, and others have imposed moratoriums until more is known about effects on water quality and quantity and whether the high-pressure injections stimulate small-scale seismic activity.
The industry says that fracking is safe and that there is there is little evidence that water supplies have been contaminated.
Rock Zierman, chief executive of the California Independent Petroleum Assn., said the question of disposal into protected California aquifers turns on a discrepancy between what aquifers the state and the EPA deem appropriate for disposal wells.
Zierman said he's confident that the areas where the disputed disposal wells are operating will be reclassified as acceptable.
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U.S. Boom Has 'Changed the Rules' for World Market -- IEA
Feb 11, 2015 | E&E - Energywire
By Jenny Mandel
Last year's oil price crash shares some features with "sharp corrections" that have rocked crude markets roughly every 10 years since the 1970s, but the advent of U.S. light, tight oil has fundamentally shifted the world market, according to a new analysis by the International Energy Agency.
Despite the occurrence of similar price shocks in 1986, 1998 and 2008, "This time around, it is not business as usual," Maria van der Hoeven, executive director of the international group, said in a launch of its yearly "Medium Term Oil Market Report" yesterday in London.
"Of course, there will be a rebalancing of the market," van der Hoeven said. "But the rebalancing may not be what we have grown to expect."
Van der Hoeven said the decision by OPEC in November to maintain crude production levels rather than balance global markets "may have effectively turned [light, tight oil] into the new swing producer."
Many analysts see the cartel's decision as an effort to drive oil prices down to levels that will push U.S. shale off the market, but IEA sees North American production as a lasting contributor to world supply that fundamentally shifts OPEC's role. "U.S. light, tight oil has changed the rules of the game," van der Hoeven said. "LTO might in fact come out stronger."
IEA sees the U.S. "LTO revolution" as having altered global supply and demand curves, in part by bending them so that non-OPEC production is more responsive to price signals, while demand is less responsive.
Price-wise, IEA forecasts that global oversupplies will start to shrink in the second part of this year and cause prices to gradually climb from 2016 onward. Like many market analysts, the group sees prices stabilizing "at levels higher than recent lows but substantially below the highs of the last three years."
The group sees large shares of incremental OPEC and non-OPEC supply coming from Iraq and the United States, respectively, in the years ahead. In Iraq, though, the potential for infrastructure damage and civil unrest due to activities of the Islamic State group could cut into supply growth, IEA said, noting that in December the country reached a 35-year high in production levels, despite being "not the quietest neighborhood nor the easiest place to operate."
"The overwhelming majority of OPEC production growth is at significant risk, depending on political instability," van der Hoeven noted.
With non-OPEC crude supply growth expected to come mainly from North America, IEA said the response of U.S. LTO production to price changes and changing investment levels will be crucial.
"LTO ... looks to stand out by its responsiveness to lower prices. Its short lead and pay-back times, rapid well-level decline rates and treadmill-like investment requirements make it far more price elastic than conventional crude," the group said in its report. "Price declines have already caused the U.S. LTO rig count to drop abruptly, setting the stage for a significantly faster supply response than would be typically expected from conventional crude producers."
The group said that price elasticity will "limit the usual overshooting and undershooting or market corrections both on the upside and the downside," even as it reshapes OPEC's role in regulating world crude supplies.A shift to refined products
Another key legacy of U.S. light, tight oil production will be a shift away from trade in crude, in favor of global flows of refined and related products, according to IEA's assessment.
The group said that with North America increasingly sourcing crude locally, even as China shifts to a less oil-dependent stage of growth and Europe showing less demand for oil due to a weakening refining industry, markets will show "contraction and fragmentation in crude markets, mirrored by expansion and globalisation in product markets."
IEA said new marine fuel rules requiring middle-distillate products could increase refinery loads, while some new demand will be met by products that bypass the refining system like natural gas liquids, biofuels, gas-to-liquids and coal-to-liquids.
A growing product market is good news for refineries that can capitalize on demand to become more efficient, gain economies of scale and expand their marketing reach. It could be tough on "some of the smaller and more antiquated refineries of Europe" and in some Asian markets where local refineries struggle to compete, the analysts said.
The result for refiners could be a seemingly conflicted picture in which refining capacity will grow over the next several years but will have increasing spare capacity as demand is met by liquids outside the system, with the result that refinery margins remain under pressure in the coming years, the group said.
Click here for the IEA report.
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Top Lawmakers Launch a Clean Energy 'Gold Rush' with Sweeping New Climate Change Proposals
Feb 11, 2015 | E&E - Climatewire
By Debra Kahn
State legislative leaders for California yesterday pitched an ambitious climate change agenda as a job-creating vehicle.
Senate President Pro Tem Kevin de León (D) unveiled an ambitious package of bills that would extend the state's greenhouse gas targets to midcentury, expand the state's renewable electricity target to 50 percent, cut petroleum use by 50 percent, require all new and existing commercial buildings to be twice as energy efficient and require state employee pension funds to divest from coal.
As part of his emphasis on job creation, De León said he wants to boost economically depressed regions of the state, like the Central Valley and Kern County.
"Number one, we want to create real jobs for Californians," he said at a press conference on the Capitol lawn, flanked by labor unions and employees of renewable energy companies, including SolarCity, Sunpower, Recurrent Energy and BYD Motors. "Two, obviously, we want to clean up the environment."
Sen. Ben Hueso (D), who announced a bill to form a commission to oversee investments in job creation, called clean energy "the California gold rush of the modern era."
"In California, there's gold in the wind," he said. "There's gold in the sunlight; there is gold in the water; there's gold in geothermal activity." Some of California's proposals may also spill over to other states because the state has been both a national and international leader in climate change mitigation efforts.
The proposals are the starting gun for negotiations among progressive Democrats who control the state Senate, Gov. Jerry Brown (D), other lawmakers, utilities, oil companies, environmental groups, labor unions, various sectors of the renewables industry and a host of other participants.
As a result, the initial bills are sure to be accompanied by a flurry of lobbying as the details are fleshed out. De León had a meeting with Pacific Gas and Electric Co. CEO Tony Earley immediately after the announcement.
"Let the dialogue begin," he said. "We're looking forward to having a very spirited, hard, open, cooperative, respectful dialogue with folks who are either going to be neutral, agnostic or in opposition to the measure, but we're looking forward to that engagement."Geographic fault lines
Brown, who originally proposed the targets in his inaugural address last month, put out a statement in support of the legislative proposals. "The Pro Tem and I share a strong commitment to dealing with climate change in an aggressive and imaginative way," he said. "I look forward to working with the legislature to hammer out the details."
The centerpiece of de León's plan is a bill by Sen. Fran Pavley (D), the author of the original 2006 law that set a greenhouse gas emissions target of 1990 levels by 2020 -- a target that the state is on track to meet.
Pavley's new bill, S.B. 32, would set a target of 80 percent below 1990 levels by 2050. Another bill, by de León and Sen. Mark Leno (D), would address electricity, buildings and petroleum use. Another de León bill would require the state's massive public pension funds to divest from coal, while the one by Hueso would form a commission to invest money in creating jobs tied to clean energy (Greenwire, Feb. 10).
So far, the de León-Leno bill, S.B. 350, envisions a 50 percent renewable portfolio standard virtually identical in structure to the existing program. Targets would ramp up from 33 percent by 2020 to 40 percent by 2025, 45 percent by 2028 and 50 percent by the end of 2030.
Reactions from the rest of the Legislature have been mixed. Assembly member Henry Perea (D), a moderate Democrat from the Central Valley who has sought to delay the state's climate policies in past sessions, expressed concerns about the cost to consumers. "I think we're going to have to take a step back and see what these goals mean out in the real world," he said in an interview. "Are they practical? What are they going to cost?"
Sen. Andy Vidak (R), also from the Central Valley, put out a more strongly worded statement.
"Democrat leadership's attempt to artificially create so-called 'green jobs' will kill thousands of blue- and white-collar jobs in the Central Valley, as well as mountain and inland regions," he said. "Instead of cherry-picking job creation in favored industries benefiting wealthy areas, we should be growing jobs in impoverished communities that continue to suffer from disgracefully high unemployment rates."
The petroleum industry has also come out vehemently against de León's proposals, particularly the section of S.B. 350 that would reduce motor vehicles' petroleum use by 50 percent by 2030. The bill currently places that responsibility with the California Air Resources Board, and assigns the efficiency targets to the California Energy Commission.
An environmentalist made the point that California voters appear to be largely in favor of the state's existing climate policies. "The political will to do this is much greater than when they passed A.B. 32," the 2006 law that set the original target of 1990 emissions levels by 2020, said Adrienne Alvord, California and Western states director for the Union of Concerned Scientists.
A recent poll by the Public Policy Institute of California found that three-quarters of Californians viewed climate change as a threat to the economy. Forty-three percent said they thought the state's existing climate policies would create jobs (ClimateWire, Dec. 2, 2014).Job creation vs. cost control
A few of the potential legislative battles were previewed at yesterday's event.
Labor union officials said they would push to keep renewable energy projects in-state, rather than allow utilities to buy carbon offsets or renewable energy credits to represent emissions reductions.
"The utility industry wants to use offsets and renewable energy credits. Ratepayers shouldn't be purchasing rainforests in Brazil or buying empty pieces of paper," said Marvin Kropke, business manager for the International Brotherhood of Electrical Workers' Local 11 chapter in Los Angeles. "Ratepayer funds should be used to create hundreds of thousands of good jobs in California that clean California's air."
De León stuck up for the utilities.
"I give the IOUs [investor-owned utilities] a tremendous amount of credit," he said. "The IOUs are good corporate citizens."
When asked if large hydropower would be allowed to contribute to the RPS target, de León alluded to the utilities' lobbying efforts. The state's major investor-owned and municipal utilities have been discussing a "clean energy standard" as an alternative to the RPS, but outside observers have said their proposal is still nascent and needs to be fleshed out.
"Folks talk about flexibility, and there's some language floating out there, language that we have not seen as of yet," de León said. "I know today we'll be having a meeting with PG&E to begin the discussions."
"Bottom line is that we want to create jobs for Californians," he continued. "We want to create real jobs that are tangible, not for folks that live in Texas or Arizona or Nevada or wind farms in Kansas. We want to create jobs for Californians."
De León said he didn't have an estimate yet of how many jobs the bills would create.
"We're not going to go out with a real hard number yet," he said. "We'll get you a number sooner rather than later."
Sen. Bob Wieckowski (D), chairman of the Senate Environmental Quality Committee, said he would introduce a bill focusing on adaptation to climate change, including preparing for sea-level rise. Wieckowski represents Silicon Valley, which is low-lying and particularly at risk of inundation (ClimateWire, Dec. 20, 2012).
"We need to be more resilient," he said.
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Obama Proposes To Boost EPA's Air, Climate Policy Funds In FY16 Budget
Feb 11, 2015 | InsideEPA
By Stuart Parker
President Obama's proposed EPA budget for fiscal year 2016 calls for a $120 million boost in spending for its clean air and climate programs for a total of $1.112 billion compared to the current $992 million funding, signaling the priority Obama is placing on EPA implementing its power plant climate rules and major clean air regulations.
The proposed $120 million increase for the emissions policies represents a significant portion of the overall $452 million increase that the president is floating for EPA's total budget, which would take the agency's funding to $8.591 billion in FY16 compared to the FY15 enacted level of $8.139 billion. Obama is also proposing a $4 billion fund to be administered by the agency that would encourage states to take steps beyond their greenhouse gas (GHG) reduction obligations under EPA's planned rule to cut GHG emissions from existing power plants.
"The FY 2016 budget prioritizes climate change and reflects the President's 2013 Climate Action Plan," EPA says in its Budget In Brief. The Clean Power Plan, which includes EPA's proposed power plant climate rules, "is President Obama's top priority for the EPA and the central element of the U.S. domestic climate mitigation agenda," it says.
Of the $120 million in proposed additional funding for air and climate programs, nearly $89 million is dedicated for climate programs, such as the agency's existing source performance standards (ESPS) to curb GHGs from power plants, and an additional $25 is proposed for grants to states to help meet GHG mandates.
Some $25 million of the $120 million overall proposed air and climate increase is designated for the agency's broad "improve air quality" goal, which aims to cut conventional air pollutants.
"The air issues of highest importance facing the agency over the next few years will continue to be [GHG] mitigation and climate change adaptation, ozone, and particulate air pollution," EPA says.
EPA's budget would fund finalization and implementation of its new source performance standards (NSPS) to cut GHGs from future power plants, as well as its ESPS to regulate GHGs at existing utilities. While the NSPS would set emissions limits for power plants, the ESPS sets overall GHG reduction goals for states and would defer to them on crafting GHG reduction plans to comply.
The agency is spending money developing both the ESPS and NSPS, regulations which foresee efficiency improvements to power plants; fuel-switching to lower-emitting power sources such as natural gas or renewable energy; and also novel measures that apply outside a facility's fenceline such as emissions trading and electricity demand-reduction measures that observers say will be challenging for EPA and states to implement.
EPA also proposes to hire around 20 additional lawyers in FY16 to help with complex legal issues in its GHG and other rules following a doubling in recent years of lawsuits filed against agency rules.
As part of the ESPS implementation, Obama is also proposing to launch a $4 billion fund that would be independent of EPA's budget yet administered by the agency. The fund would be for state efforts to exceed their GHG reduction goals, though the GOP-led Congress is unlikely to approve the proposal.
Mobile Sources
In addition to regulating stationary sources of GHGs such as power plants, EPA's climate program also includes rules for mobile sources. The agency in its budget documents outlines an expanding testing and certification program necessary to implement its GHG and corporate average fuel economy (CAFE) standards that EPA and the Department of Transportation (DOT) have already adopted for passenger cars and heavy-duty trucks.
"Working with the National Highway Transportation Safety Administration [NHTSA] . . . the agency is developing Phase 2 GHG and fuel efficiency standards for heavy-duty vehicles, which will be proposed in March 2015 and are expected to be finalized in March 2016," EPA says, referencing its latest joint rulemaking with DOT's NHTSA. The second round of truck rules are expected to impose first-time GHG limits on truck trailers.
The agency is also working to implement existing CAFE standards for light-duty and heavy-duty vehicles developed with DOT, which require progressively tougher fuel economy limits.
Further, the agency's Tier 3 fuel and vehicle standards for conventional pollutants are now in effect, and through their reductions of sulfur dioxide and nitrogen oxides emissions are important to help states meet their national ambient air quality standards (NAAQS) obligations for both ozone and fine particulate (PM2.5).
To accommodate the various vehicle regulatory mandates, in FY16, "EPA will use its upgraded vehicle, engine, and fuel testing capabilities at the National Vehicle and Fuel Emissions Laboratory . . . to increase testing and certification capacity to ensure that new vehicles, engines, and fuels are in compliance with new vehicle and fuel standards," EPA says in the Budget In Brief document. "EPA anticipates reviewing and approving more than 5,000 vehicle and engine emissions certification requests for over 4,100 different types of engines -- a workload that has quadrupled over the past decade," and which will continue to grow, the agency adds.
Obama also proposes a small funding increase of $486,000 for stratospheric ozone protection, a program that overlaps with efforts to protect climate by reducing ozone-depleting substances such as hydrofluorochlorocarbons and their successor chemicals, hydrofluorocarbons (HFCs), which also are potent GHGs. EPA will "promote the use of low global warming potential alternatives to [HFCs] through application of the Significant New Alternatives Policy (SNAP) program," the agency says in its Budget In Brief. At the same time, international talks are ongoing to update the Montreal Protocol -- the existing global agreement on ozone-depleting substances -- to include HFCs.
Air Pollution
Obama's proposed $120 million increase for air and climate programs would also benefit EPA's conventional air pollution efforts, which include its national ambient air quality standards (NAAQS).
FY16 funding would cover NAAQS reviews, such as EPA's recent proposal to tighten its ozone NAAQS from the existing 75 parts per billion (ppb) level set in 2008 down to between 65 and 70 ppb. A final rule is due in October.
Also, EPA is moving to implement its 2012 rulemaking tightening its fine particulate matter air standard from the less-stringent annual limit set in 1997, with a new rule to guide states in that regard due in the near future.
EPA explains in its budget justification document for Congress that development and implementation of NAAQS standards will require substantial resources. "Conducting multiple concurrent reviews requires a substantial investment in highly trained staff and the allocation of significant analytical resources," EPA says.
EPA in the Budget In Brief also notes it is dedicating additional resources to clearing a backlog of reviews of state implementation plans (SIPs) in which states outline how they will meet NAAQS. "To avoid creating delays in the permit process and to address the SIP backlog, the agency is focusing additional [staff hours] on base air regulatory implementation work to meet the increasing workload," EPA says.
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Court Ruling Further Delays EPA's Years-Old PM Air Rule Review
Feb 11, 2015 | InsideEPA
EPA says that a U.S. Court of Appeals for the District of Columbia Circuit ruling that backed environmentalists in finding that the agency issued an unlawfully lax rule for implementing its particulate matter (PM) air standards is causing further delay in its years-old review of whether to revise part of the rule challenged by the livestock sector.
The National Cattlemen's Beef Association (NCBA) first filed suit over the fine particulate matter (PM2.5) national ambient air quality standard (NAAQS) implementation rule in June 2007, but the case was placed into abeyance in September that year after EPA said it would review the group's petition for reconsideration of the rule. But the review has been ongoing since then, and in a recent status update in the case EPA says its review is still ongoing.
NCBA is challenging the agency's decision in the implementation rule to include larger coarse PM, also known as PM10, in designating areas as either in attainment or nonattainment with its PM2.5 NAAQS. In its reconsideration petition, the group argued that PM2.5 and PM10 are "fundamentally different pollutants."
The group urged EPA to drop regulation of coarse PM in state air quality plans for complying with the PM2.5 NAAQS. Agricultural operations are large sources of PM10, so excluding those emissions could help an area with a large number of such facilities avoid PM2.5 nonattainment status and its associated strict pollution controls.
Five years after the petition and lawsuit were filed, EPA in a status update in the case NCBA v. EPA said its review of the petition was ongoing, and urged the court to continue to keep the case in abeyance.
Since then, the agency has filed several status updates in which it says it is still continuing to review the petition eight years after it was submitted to EPA. In the most recent update, filed last month, the agency reiterates its statement that a D.C. Circuit ruling from 2013 has added another complication to its petition review.
The appellate court in the Jan. 4, 2013, decision in Natural Resources Defense Council (NRDC) v. EPA agreed with environmentalists who said the agency erred in how it crafted the PM implementation rule.
NRDC claimed that EPA violated the Clean Air Act when it implemented the PM2.5 NAAQS using "subpart 1" of the air law, which they say allowed states to implement weaker pollution controls than the stricter air law "subpart 4." The court vacated and remanded the rule to the agency, which subsequently revised part of it.
However, the Department of Justice on EPA's behalf says in its Jan. 5 status update in NCBA that the agency continues to review how the ruling in NRDC affects its pending decision on the livestock sector's petition. "EPA is continuing to review the Court's decision" in NRDC "to determine its impact on this case," according to the filing.
Echoing language from prior status updates in the case, EPA says it "has not yet made a determination on the issues presented by the administrative petition for reconsideration submitted by Cattlemen."
An NCBA spokesman declined to answer questions about the issue.
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Potential Air Toxics Rule Review Suit Could Add To EPA Program Burdens
Feb 11, 2015 | InsideEPA
By Stuart Parker
Environmentalists' threat to sue EPA to force reviews and potential updates to dozens of air toxics rules for a host of industrial sectors could further add to the burdens facing the agency's air toxics program, which is already using limited funding to revise various air toxics rules to update them and to remove certain enforcement provisions.
In a Feb. 3 letter to EPA, law firm Earthjustice gives 60 days' notice of its intent to sue the agency on behalf of a coalition of nine environmental groups over 33 risk and technology reviews (RTRs) that the agency has failed to conduct within statutory deadlines. The reviews are required under the air law within eight years of an air toxics standard's promulgation.
The reviews assess whether there is any "residual" risk to human health from the regulated sectors that should be mitigated, and whether there is any new control technology available to achieve this. EPA has fallen far behind schedule in conducting the required reviews and issuing rules to reduce remaining risks. Agency officials and environmentalists have previously noted that ongoing budget constraints are limiting EPA's ability to catch up.
Earthjustice says that EPA has failed to conduct RTRs within statutorily mandated times for various industry sectors including iron and steel manufacturing, surface coating of automobiles, solid waste landfills and semiconductor manufacturing, among many others, and will sue 60 days after Feb. 3 if the agency does not meet its obligations.
It is highly unlikely EPA will meet those mandates in two months given the many rules advocates want the agency to update, suggesting environmentalists will once again sue EPA to force the reviews.
Environmentalists previously sued EPA to force RTRs for a host of industrial sectors, and the agency eventually settled that litigation by agreeing to binding deadlines for those reviews. In a Sept. 27, 2010, settlement agreement, EPA agreed to deadlines for completion of RTRs for 28 source categories over three years.
EPA also entered a similar deadline pact with the advocacy group California Communities Against Toxics -- which is part of the new threat to sue -- for updating its refinery sector air toxics rule.
The California group also signed a letter giving EPA notice of intent to sue the agency Aug. 23, 2013, along with Sierra Club, which is not a signatory to the new letter. The 2013 letter cited EPA's failure to issue rules in 46 industry sectors, including some of the same sectors targeted by the Feb. 3 letter.
The two groups never did file suit after the 2013 letter, an Earthjustice source says, but would not elaborate further on what took place in the interim or why the groups never filed suit.
Risk Reviews
The Feb. 3 letter to EPA lists a total of 33 industrial sectors for which advocates claim the agency has failed to meet its RTR requirements. The sectors listed in the notice overlap to some extent with those at issue in an ongoing fight between EPA and environmentalists over whether the agency has met its obligations to regulate 90 percent of emissions of seven toxic air pollutants listed in the air law as "persistent" and "bioaccumulative."
Under air law section 112(c)(6), EPA had to list source categories under the air toxics program accounting for 90 percent of the aggregate emissions of the seven chemicals by Nov. 15, 1995. The chemicals are: alklylated lead compounds, polycyclic organic matter, hexachlorobenzene, mercury, polychlorinated biphenyls, 2,3,7,8-tetrachlorodibenzofurans and 2,3,7,8-tetrachlorodibenzo-p-dioxin.
In 2011, EPA published a Federal Register notice stating it had met the requirement, but environmentalists sued, charging that the agency had not gone through proper notice-and-comment procedure. Ultimately, the agency agreed with advocatess to a binding deadline of Dec. 10 for a proposed rule, and May 25 for a final rule.
EPA in a Dec. 16 proposed "completion" finding again proposed to find that it has met its 90 percent obligation under the air law, and is taking comment on that finding through Feb. 17.
Environmentalists are already criticizing EPA's re-calculation of emissions benefits of old rules in an effort to reach the 90 percent threshold, which one source has described to EPA as an effort to "re-write history."
Meanwhile, the sectors listed in environmentalists' new notice of intent to sue EPA are different from the air toxics rules that the agency is now reviewing with a view to removing "affirmative defense" provisions that have been found unlawful by the U.S. Court of Appeals for the District of Columbia Circuit.
These provisions, found in several air toxics rules, shield industry from civil liability in the event of a malfunction that EPA deems unavoidable, but the court found that, like earlier regulatory exemptions for startup, shutdown and malfunction events, they constitute an unlawful waiver from air law protections.
However, the affirmative defense is found only in newer air toxics rules, and not those that have been untouched for eight years or more.
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EPA's FY16 Air Toxics Budget Remains Tight Despite Risk Review Backlog
Feb 11, 2015 | InsideEPA
By Stuart Parker
EPA faces a tight fiscal year 2016 funding proposal for its air toxics program despite a backlog of Clean Air Act-mandated residual risk reviews for potential updates to existing air toxics regulations, delays that have prompted a legal threat from environmentalists to try and force court-ordered deadlines for conducting the reviews.
Although overall funding for air and climate programs would increase under President Obama's FY16 EPA budget proposal released Feb. 2, the plan does not detail any specific funding increases for the air toxics program. Instead, the agency says it will prioritize rules for hazardous air pollutants (HAPs) based on its available resources.
Obama is proposing to give EPA a $452 million boost to its current $8.139 billion budget, taking funding in FY16 to $8.591 billion. As part of that increase, the president is seeking a roughly $120 million increase for EPA's air and climate change efforts in FY16 for a total of $1.112 billion compared to the $992 million it received in FY15.
The air toxics program -- including the mandatory residual risk reviews of rules to cut HAPs -- is covered by the agency's fund for federal stationary sources. Under the president's proposed budget, the account would receive $37.5 million in FY16, a $12.5 million increase over the account's $25 million current funding.
EPA's budget documents do not specify how much funding would be dedicated to the risk and technology review (RTR) program, under which EPA is required to review its maximum achievable control technology (MACT) air toxics rules eight years after their promulgation and decide whether there is a need to strengthen them.
An EPA spokesman was unable by press time to provide clarification on the air toxics program's funding.
The RTR program, established under the air law's section 112 air toxics section, is years behind schedule, which observers attribute in part to chronic underfunding.
EPA is again facing the threat of litigation asking a court to force the agency to stick to an agreed schedule for issuance of outstanding RTR rules. In a Feb. 3 letter to EPA, environmental law firm Earthjustice gave 60 days' notice of its intent to sue the agency on behalf of environmentalists seeking deadlines for 33 delayed RTRs.
However, in its congressional justification document for the FY16 budget proposal, EPA says that, "the program cannot address all regulatory reviews statutorily mandated by the [air law] so work will be prioritized, according to resources, and to meet court-ordered deadlines."
For example, it cites section 112(d)(6) of the air law that "requires the EPA to review and revise, as necessary, within eight years, all of the MACT standards that have been promulgated under . . . section 112 since 1990."
The agency adds, "Similarly, section 112(f) . . . requires the EPA to conduct reviews of the risk that remains after the implementation of MACT standards within eight years of promulgation. There are over 80 stationary source (air toxics) rules due for review under Section 112 . . . , and the agency is expecting litigation over already-missed deadlines."
EPA says it "will engage in rulemaking efforts to review and revise, as necessary and appropriate, priority industry sectors, including, but not limited to Integrated Iron and Steel Manufacturing, Aerospace Manufacturing, Coke Ovens, Publicly Owned Treatment Works, Plywood and Composite Wood Products, Ethylene Production, and several coatings source categories."
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