Preview Newsletter
ACC AM 5/8/18
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(ACC Mentioned) Few Retiring Lawmakers Disclose Plans to Lobby
May 8, 2018 | Roll Call
By Kate Ackley
On the cusp of a potentially historic wave of congressional retirements, few public records offer clues about which lawmakers have entered negotiations for lobbying and other private-sector gigs. -
AGs Urge Pruitt to Stop 'Secret Science' Plan
May 7, 2018 | E&E News PM
By Sean Reilly
EPA should halt planned changes to its standards for scientific research used in writing new regulations and then ask independent experts whether any action is needed, New York Attorney General Eric Schneiderman and seven other Democratic attorneys general urged today. -
Documents Show Epa Secrecy Push Under Pruitt
May 7, 2018 | The Hill - E2 Wire
By Timothy Cama
New internal Environmental Protection Agency (EPA) documents are shedding light on the agency’s attempts to keep Administrator Scott Pruitt's activities secret, especially before they take place. -
Pruitt's Science Plan Faces Host Of Legal Hurdles; Some Doubt Promulgation
May 7, 2018 | Inside EPA
By Maria Hegstad
Administrator Scott Pruitt's plan requiring EPA to use only publicly available information to justify its regulatory decisions faces a host of legal hurdles, industry officials and environmentalists say, including vague or undefined terminology, statutory mandates likely at odds with the rule and potential violations of administrative law. -
Eight States Urge EPA to Halt Draft Rule Limiting Science Use
May 7, 2018 | BNA Daily Environment Report
By Katherine Tam
A group of eight attorneys general are urging EPA Administrator Scott Pruitt to consult with the National Academy of Sciences before proceeding with a draft science “transparency” rule. -
Cape Fear River Watch to Sue Chemours for Clean Water Act, Toxic Substance Law Violations
May 7, 2018 | WWAY News
The Cape Fear River Watch is being represented by the Southern Environmental Law Center to take action against Chemours and the discharge of GenX and other pollutants in the environment. -
Pentagon: Fluorinated Chemicals Taint Water at Scores of Bases, Neighboring Communities
May 7, 2018 | Environmental Working Group
By Bill Walker
The Defense Department has for the first time disclosed the locations of military installations where tap water or groundwater on or off base is contaminated with highly toxic fluorinated chemicals. -
EPA Discovers Another Lead-Contaminated Neighborhood Near East Chicago
May 8, 2018 | Chicago Tribune
By Michael Hawthorne
Almost every time federal officials test a yard in northwest Indiana, they find staggering levels of brain-damaging lead in the soil. -
Frackers Feeling Shaken Up by Pennsylvania Court Decision
May 7, 2018 | BNA Daily Environment Report
By Leslie A. Pappas
Anxiety is building around a court ruling in Pennsylvania that could potentially upend long-standing oil and gas arrangements, and affect hydraulic fracturing efforts nationwide. -
Energy and Water Bill Advances
May 8, 2018 | E&E Daily
By Christa Marshall and Ariel Wittenberg
The House Energy and Water Appropriations Subcommittee advanced legislation yesterday evening that ignores President Trump's request to eliminate the Advanced Research Projects -
House Energy, Water Spending Bill Rebukes Trump Budget Cuts
May 7, 2018 | BNA Daily Environment Report
By David Schultz
A House panel laid out its vision for funding federal energy and water agencies for the next fiscal year, and it differs significantly from a White House proposal earlier this year. -
Split Power Sector Signals Broad Openness To EPA's CPP Repeal Plan
May 7, 2018 | Inside EPA
By Lee Logan
Major power sector trade groups are not standing in the way of the Trump EPA's proposal to repeal the Obama-era Clean Power Plan (CPP) utility greenhouse gas rule, and some are actively applauding the plan along with several other industry associations even as environmentalists detail legal arguments against the move. -
EPA Floats More-Flexible Audit Policy For New Oil & Gas Facility Owners
May 7, 2018 | Inside EPA
By Doug Obey
EPA has released a new draft self-audit policy giving new owners of oil and gas facilities more latitude to negotiate timeframes for fixing equipment leaks, following through with prior agency suggestions that its current policy should be streamlined to address numerous oil and gas operations and a pattern of Clean Air Act violations at such facilities. -
Pipeline Investments Dogged by Changing Regulations, On-And-Off Tariffs, Protesters and Fear of Redundancy
May 7, 2018 | Natural Gas Intelligence
By Charlie Passut
Developers and marketers of natural gas, crude oil and natural gas liquids pipeline projects face a unique set of factors that directly affect the issue of investment risk, including the fear of building a late project that ultimately proves to be unprofitable. -
Waking up to the Dangers Next Door
May 8, 2018 | Treehugger
By Christine Lepisto
According to the Center for Public Integrity, at least 16 million Americans are in the potential path of toxic acid fumes if an industrial incident were to occur. It was news to the neighbors of Husky Energy in Superior, Wisconsin, that they belong to that crowd. -
Opinion: Freight Rail App Plays Vital Role for First Responders
May 8, 2018 | NorthJersey.com
By Joseph Dooley
As Linden fire chief, I know how important it is for first responders to have access to critical safety information when responding to a life-threatening crisis. -
Dominion Warns of Dirty Power Imports if Virginia Joins Carbon Trade
May 7, 2018 | BNA Daily Environment Report
By Gerald B. Silverman
Dominion Energy Inc. and Virginia businesses argue that the state’s proposed carbon trading program will raise electricity rates and increase imports of dirtier power. -
Sierra Club Seeks to Keep Key Air Permit Suit in D.C. Circuit
May 7, 2018 | Inside EPA
Sierra Club in a new legal filing is fighting EPA's call to transfer a suit over a key air permit from the U.S. Court of Appeals for the District of Columbia Circuit to the 10th Circuit, claiming the suit has national scope because the agency shifted its overall Clean Air Act permitting policy through denying an objection to the permit. -
Pruitt Fast-Tracked California Cleanup After Hugh Hewitt Brokered Meeting
May 7, 2018 | Politico Pro
By Emily Holden and Anthony Adragna
EPA Administrator Scott Pruitt placed a polluted California area on his personal priority list of Superfund sites targeted for “immediate and intense” action after conservative radio and television host Hugh Hewitt brokered a meeting between him and lawyers for the water district that was seeking federal help to clean up the polluted Orange County site. -
Cassidy Charts Own Course on Climate Change
May 8, 2018 | E&E Daily
By Geof Koss
When French President Emmanuel Macron urged a joint session of Congress last month to heed the risks of climate change, his comments caught the ear of one Republican senator in the audience. -
EPA Rejects States' Call For Large Multi-State Ozone Nonattainment Areas
May 7, 2018 | Inside EPA
By Stuart Parker
EPA in its latest round of designations for areas attaining or violating the 2015 ozone air standard has rejected calls from some East Coast states and environmentalists to create large multi-state nonattainment areas with stricter pollution control mandates, saying states should pursue other Clean Air Act options to address ozone air transport. -
Industry Groups Float Economic Study Supporting HFC Deal
May 7, 2018 | Inside EPA
Two refrigeration industry trade groups are outlining the economic benefits of the United States ratifying a global deal to phase down the use of refrigerants that act as potent greenhouse gases, part of an effort to persuade the White House to embrace the agreement given uncertainty about the administration's position.
Industry and Association News
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(ACC Mentioned) Few Retiring Lawmakers Disclose Plans to Lobby
May 8, 2018 | Roll Call
By Kate Ackley
On the cusp of a potentially historic wave of congressional retirements, few public records offer clues about which lawmakers have entered negotiations for lobbying and other private-sector gigs.
“There’s not usually much interest in those,” a staffer in the House Legislative Resource Center said with a shrug.
And here’s why: If the House disclosures were accurate, then the last lawmaker to enter job talks with K Street, a speaker’s bureau, universities and the like departed the Capitol in 2014.
Despite a protocol for transparency in place since 2007, only nine House members and eight senators have filed these notices of employment negotiations. That’s minuscule compared with the legions of lawmakers who have decamped from Capitol Hill to K Street over that decade.
In the last Congress, for example, 21 lawmakers went on to new jobs outside of government, according to a tabulation from the nonpartisan Center for Responsive Politics. Only one — Democratic Sen. Barbara A. Mikulski of Maryland, who joined Johns Hopkins University — filed a public disclosure.
“We’ve seen people dropping out of Congress who have been negotiating employment, and there are no public records of it,” said Public Citizen’s Craig Holman, an advocate for the disclosures. “This is an important thing. There can be a conflict of interest that has significant ramifications for legislation.”
Constituents and reporters alike are left in the dark.
Senate rules prohibit the chamber’s members from negotiating lobbying gigs until after their successors have been elected. House members may negotiate their next positions but must file private disclosures with the Ethics Committee.
In its report about the 114th Congress (2015-16), the House Ethics Committee disclosed that it received 161 notifications of negotiations — but most came from congressional staffers, whose forms are never made public.
The two Ethics committees have jurisdiction only over sitting members, so outgoing lawmakers may have little to fear.
And the system is mostly voluntary. It’s up to House members to determine when a conflict of interest arises and file a notification with the House clerk. Only then are their negotiations made public.
Republican Rep. Pat Tiberi announced months before his resignation that he would take the reins of the Ohio Business Roundtable in mid-January. He continued to work on the details of the GOP tax overhaul and other congressional business. Yet there are no records on file of his post-congressional job talks.
“Even members of Congress should have some degree of personal privacy,” said K Street talent scout Ivan Adler. “That being said, I encourage everybody that I work with to not only follow the spirit of the law but the letter of the law when dealing with the ethical responsibilities.”
A number of high-profile lawmakers will leave before the 115th Congress ends in early January. Rep. Charlie Dent, the moderate, pro-business Pennsylvania Republican, is departing this month. He has not publicly disclosed any steps toward a private-sector job. House Speaker Paul D. Ryan of Wisconsin says he’s also packing up after this term ends and will figure out his next move in 2019.
The lobbying world has several big-paying gigs that some departing or retiring lawmakers may well be eyeing, including the roughly $5 million-a-year post atop the American Chemistry Council that ex-Rep. Cal Dooley is leaving.
Tim LaPira, a political science professor at James Madison University and co-author of the book “Revolving Door Lobbying,” says the congressional disclosures of job negotiations are, in theory, full of good intentions.
“The idea is that if I’m going to go work in the private sector in the near future, I think all other members of Congress and constituents sort of deserve to know you’re not making decisions while still in power that benefit that future employer,” LaPira said.
The trigger for disclosure is a high one, and usually it takes getting into the specifics of compensation. But LaPira said the absence of transparency in most cases can leave constituents, and the public, puzzling about the timing and circumstances of job talks.
“I would feel better, and I think constituents would feel better, if members of Congress were to err on the side of caution and be more likely to disclose and recuse earlier than later,” he said.
If the past decade is any guide, the public won’t know the employers courting a Charlie Dent or a Paul Ryanuntil these politicians are out of Congress and the ink is already dry on their new deals.
https://www.rollcall.com/news/politics/retiring-lawmakers-disclose-lobbying
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AGs Urge Pruitt to Stop 'Secret Science' Plan
May 7, 2018 | E&E News PM
By Sean Reilly
EPA should halt planned changes to its standards for scientific research used in writing new regulations and then ask independent experts whether any action is needed, New York Attorney General Eric Schneiderman and seven other Democratic attorneys general urged today.
In light of the potential impact "on EPA's mission to protect public health and the environment, we ask that you withdraw the proposed rule and convene a process to first consult with the National Academy of Sciences and other independent scientists and science organizations" before deciding whether any changes are in order, they wrote EPA chief Scott Pruitt.
If EPA won't scrap the proposed rule, then the public comment period should be lengthened from 30 days to at least six months to allow more time to consider "this tremendously consequential proposal," their letter added.
The proposed rule, published in last Monday's Federal Register, would effectively bar EPA from using scientific studies in crafting significant new regulations unless the underlying data and models are "publicly available in a manner sufficient for validation and analysis."
By Pruitt's description, that approach is intended to bolster public confidence in EPA decisionmaking. Critics see it as a ruse intended to block the agency from considering valid research that could offer evidence in favor of stronger regulations. They've also objected to the relatively brief comment period, which is currently set to end May 30. Dozens of advocacy groups and Democratic lawmakers have argued that a minimum of 90 days is needed (Greenwire, May 4).
The other attorneys general signing today's letter, which was also submitted as a comment on the proposed rule, were Xavier Becerra of California, Matthew Denn of Delaware, Tom Miller of Iowa, Janet Mills of Maine, Lori Swanson of Minnesota, Josh Shapiro of Pennsylvania and Karl Racine of the District of Columbia.
https://www.eenews.net/eenewspm/2018/05/07/stories/1060081021
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Documents Show Epa Secrecy Push Under Pruitt
May 7, 2018 | The Hill - E2 Wire
By Timothy Cama
New internal Environmental Protection Agency (EPA) documents are shedding light on the agency’s attempts to keep Administrator Scott Pruitt's activities secret, especially before they take place.
The documents, first reported on Monday by The New York Times and obtained through a Freedom of Information Act lawsuit by the Sierra Club, additionally show that EPA staff often frame potential reporters or attendees at events as either “friendly” or “unfriendly.”
In one example, in planning an Iowa event on Pruitt’s work to roll back an Obama administration water pollution rule, a cattle farmer helping to organize the event told the EPA that he was planning it as a “town hall meeting,” which would allow attendees to ask questions.
“With a crowd of 300 people plus open press, we have to stick with the questions we currently have,” Pruitt’s scheduling director, Millan Hupp, replied, the documents show.
“My sincere apologies for causing any difficulty but we cannot do open q&a from the crowd.”
In one internal memo, EPA staff said that 16 “friendly Industry leaders” would attend a National Association of Homebuilders event in Colorado, which was closed to the public and not announced in advance. The event’s audience was described as “all industry friendly.”
In another instance, when a Missouri television network tweeted in advance of an event Pruitt was planning, a top Pruitt staffer tried to determine if it meant that “unfriendly” media would try to cover the event.
http://thehill.com/policy/energy-environment/386510-documents-show-epa-secrecy-push-under-pruitt
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Pruitt's Science Plan Faces Host Of Legal Hurdles; Some Doubt Promulgation
May 7, 2018 | Inside EPA
By Maria Hegstad
Administrator Scott Pruitt's plan requiring EPA to use only publicly available information to justify its regulatory decisions faces a host of legal hurdles, industry officials and environmentalists say, including vague or undefined terminology, statutory mandates likely at odds with the rule and potential violations of administrative law.
While the measure will almost certainly face a legal challenge once it is finalized, Bob Sussman, a former top EPA appointee in the Clinton and Obama administrations who now represents Safer Chemicals, Healthy Families, questions whether the agency will even be able to finalize it in its proposed form because of what he says are its flaws.
“I've never seen a regulation like this where the regulatory text is framed as questions and answers, and in some cases incomplete answers,” Sussman said in a May 3 interview with Inside EPA.
Sussman sees the open comment period as the first opportunity to challenge the proposed rule. The draft rule was published in the April 30 Federal Register, and EPA has asked for comment on the proposal and its lengthy list of attached questions -- including legal authorities and the criteria EPA should use to justify exceptions -- through May 30.
But Sussman says the plethora of critical comments the agency will likely receive will create new legal problems under the Administrative Procedure Act, which generally requires an agency to respond.
“They could ignore [them], but that's a recipe for legal disaster,” Sussman says. And in his view, if EPA makes changes to address the many issues that he expects will be raised in the comments, the draft rule will have undergone such significant alteration “that they would have to re-propose it.”
Led by New York Attorney General Eric Schneiderman (D), several Democratic state attorneys general are also calling for EPA to withdraw the proposed rule to consult with the National Academy of Sciences (NAS) or in the alternative to extend the comment period by 150 days to allow for such consultation.
“If you are unwilling to withdraw the proposal, we ask at a minimum that you extend the comment period by at least 150 days to provide for appropriate consultation with the [NAS] and other independent scientists and science organizations on the proposed changes to EPA’s current use of scientific evidence,” they wrote in a May 7 letter to Pruitt.
EPA's proposed rule delivers on Pruitt's long-standing pledge to end the agency's use of “secret science” to craft rules. The policy is based on stalled legislation, long championed by Rep. Lamar Smith (R-TX), the retiring chairman of the House science committee, which directs the agency to use the “best available science” in all its actions, but bars the agency from using any studies that cannot be released publicly online.
While the proposed rule generally bars the use of studies that do not disclose underlying data, it provides broad authority for the administrator to waive the requirement. Although Smith's bill sought to require best available science, the proposed rule instead applies to “pivotal” science, one of several broad but largely undefined terms.
The approach has drawn significant criticisms, in addition to the legal charges. Agency staff, for example, have warned of significant costs if the agency is forced to replicate studies on which it might rely.
Environmentalists and many states have warned that the plan appears aimed at barring use of studies based on confidential medical data that the agency has long used to justify its air quality standards and other requirements.
In addition, chemical industry groups and some top officials, have raised concerns that adoption of the policy would prevent use of their studies that rely on confidential business information (CBI) to approve uses of pesticides and industrial chemicals.
Statutory Mandates
Several legal observers say the agency lacks legal authority for such a rule and that the proposal is at odds with statutory mandates that generally require the agency to consider all scientific information and then justify its choices.
“If a statute requires decision-making based on relevant science (and many statutes do), but the agency refuses to consider relevant science because doing the studies required providing confidentiality to research subjects, that’s a pretty blatant violation of the statute,” says Dave Owen, a professor of environmental law at the University of California Hastings' law school.
And Dan Farber, an environmental law professor at the University of California Berkeley's law school in an April 30 blog post that EPA appears to acknowledge the proposal's legal vulnerabilities given its request for comment on available legal authorities.
“The provisions cited by the EPA proposal provide flimsy support -- thus the plaintive cry for legal assistance from public commenters,” he writes.
While the proposed rule cites several environmental statutes from which EPA draws its regulatory powers, Farber says the agency appears uncertain of some authorities. For example, he notes that while the proposed rule cites section 301(a) of the Clean Air Act, it does not cite any judicial authority or agency precedent for using this provision. “Since EPA is asking for suggestions about other sources of statutory authority, it is apparently unsure that its proposal is within the scope of section 301 or similar generic rulemaking provisions in other environmental statutes,” he says.
He adds that the rule “conspicuously” does not cite CAA section 307(d), which “speaks directly to the issue of data disclosure,” though he notes that EPA has never interpreted it to mean it “should disregard studies if the data isn’t confidential, and apparently still is not willing to embrace that view.”
The Trump EPA may have omitted this section from the rule because existing case law on section 307 is “contrary to the proposal that EPA is now putting forward.” Farber notes that the 2002 ruling from the U.S. Court of Appeals for the D.C. Circuit in American Trucking Associations, Inc. v. EPA, agreed “with EPA that requiring agencies to obtain and publicize the data underlying all studies on which they rely 'would be impractical and unnecessary.'”
He also argues that language in sections 108 and 109 cuts strongly against the proposal. For example, he notes that the proposal would require EPA to ignore evidence of the seriousness of health risks as a penalty for failure to make the underlying data available.
But he questions how EPA can bar use of some information if the underlying data is not public given that section 109 mandates EPA to allow an “adequate margin of safety” when setting air quality standards -- even if the evidence is not completely clear. “How can EPA do that if it completely ignores available evidence about risk?” he writes.
Farber also points to section 108, which describes the air quality criteria that are the basis for the standards set in section 109. Farber points out that section 108(a)(2) requires those criteria to “'accurately reflect the latest scientific knowledge useful in indicating the kind of and extent of all identifiable effects on public health or welfare.' It doesn’t say 'latest scientific information except what EPA chooses not to consider.'
Another example -- which both Owen and Sussman point to -- is language in the recently revised Toxic Substances Control Act section 26(h), which requires that EPA base its regulations on industrial chemicals on the “best available science.” Owen notes that such language appears in a number of other statutes that EPA implements or must comply with, including the Clean Water Act, the Safe Drinking Water Act and the Endangered Species Act.
Waiver Authority
Owen also calls “disturbing” the broad waiver authority the proposed rule provides to the administrator. “It basically means that decisions about which science to consider and which to ignore would be made by the ultimate political animal, without any guiding criteria other than his own whims,” he says.
Owen says the way the proposal handles exceptions may make the rule “less defensible” in the long term. “Courts aren’t oblivious to the politics of agency decision-making, and a deliberately politicized decision from an EPA administrator may get somewhat less deference than decisions made through the exercise of staff expertise and according to transparent and science-based criteria.”
But he says the exemptions as written “may complicate challenges” in the short term, because EPA will argue that an as-applied challenge is not reviewable because the agency may waive the data disclosure requirements. “That may mean that it’s easier for [a] challenger to attack the rule when it is used to exclude specific studies in specific rulemaking processes, rather than just bringing a facial challenge,” he says.
Still, others say EPA may struggle to justify granting waivers when accepting industry requests to approve pesticides and chemicals but deny similar requests from environmentalists and states seeking strict air quality standards.
“EPA is very likely to tie itself up [in] knots trying, unsuccessfully, to allow confidential information desired by industry, while disallowing health studies based on confidential patient data that would support stronger health safeguards,” John Walke of the Natural Resources Defense Council told the Washington Examiner.
Others raise concerns over the document's introduction of a host of new terms, many of which are undefined. For example, the industry law firm Bergeson and Campbell questions whether the rule's application to “pivotal regulatory science” could have impacts that are farther reaching than EPA intends.
“Similar to when legislative proposals offer new terminology, the establishment and use of terms such as 'pivotal regulatory science' suggest some distinction between it and 'not so pivotal science' not subject to the new procedures and requirements,” the firm says in a blog post.
The post notes that while the rule is largely intended to address data underlying air quality standards, it could nevertheless spill over into other areas, such as “routine” data submissions governing pesticide registrations.
One of the authors of the post, Jim Aidala, the former Clinton EPA toxics chief now with the firm, explains that “I get what they're trying to do -- not apply this new [requirement] to every study, but what is 'pivotal?'”
https://insideepa.com/daily-news/pruitts-science-plan-faces-host-legal-hurdles-some-doubt-promulgation
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Eight States Urge EPA to Halt Draft Rule Limiting Science Use
May 7, 2018 | BNA Daily Environment Report
By Katherine Tam
A group of eight attorneys general are urging EPA Administrator Scott Pruitt to consult with the National Academy of Sciences before proceeding with a draft science “transparency” rule.
The states say the plan would have “profound potential impacts” by limiting the scientific evidence used when adopting rules to protect health and the environment.
The states are urging the Environmental Protection Agency to either withdraw the proposal, or extend the comment review period to allow enough time for more consultations and public input.
N.Y. Attorney General Eric Schneiderman is one of the lead signatories on the group’s letter to Pruitt.
Other attorneys general who signed the letter hail from California, Delaware, Maine, Minnesota, Pennsylvania, Iowa, and the District of Columbia.
https://news.bloombergenvironment.com/environment-and-energy/eight-states-urge-epa-to-halt-draft-rule-limiting-science-use
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Cape Fear River Watch to Sue Chemours for Clean Water Act, Toxic Substance Law Violations
May 7, 2018 | WWAY News
The Cape Fear River Watch is being represented by the Southern Environmental Law Center to take action against Chemours and the discharge of GenX and other pollutants in the environment.
“Times up. We’re not going to tolerate your ongoing pollution and your ongoing contamination of drinking water,” said Kemp Burdette, Cape Fear Riverkeeper.
On behalf of the Cape Fear River Watch, SELC has petitioned the NC Department of Environmental Quality to require Chemours to immediately stop all emissions and discharges of GenX and chemically related compounds.
“This addresses both the water pollution that’s occurring from contaminated groundwater running off the site, contaminated creeks, leaching into the site surrounding the facility, but also the air emissions which are emerging as the largest source of GenX and other contamination in the area,” Senior Attorney Derb Carter said.
The firm also notified Chemours of its intent to sue for violations of the Clean Water Act and Toxic Substances Control Act for its GenX pollution from its Fayetteville Works Facility.
“After months of study and testing by DEQ, EPA, and other researchers, we now know that Chemours has defiled the air, water, and land at a historic level,” said Geoff Gisler, senior attorney, Southern Environmental Law Center. “The first step in healing those wounds is to stop the pollution at the source; DEQ must act now to protect the families and communities burdened by Chemours’ ongoing pollution.”
In its filing with the state, SELC argues that DEQ has the authority and obligation to order Chemours to discontinue immediately its discharges of toxic PFAS compounds, including GenX, because the company’s ongoing contamination of air and water is causing imminent danger to people’s health and public safety. DEQ is required by law to act in times of emergency to protect the health and safety of the public.
“The DEQ has a clear opportunity now to step up and take the appropriate action and that’s what we are asking them to do,” Carter said.
“The hundreds of thousands of people that drink water contaminated by Chemours’ toxic discharge are outraged,” said Kemp Burdette, Cape Fear Riverkeeper. “The State needs to step in and stop this irresponsible company from continuing to harm our health, our water and our air.”
SELC also notified Chemours that its continued pollution of these toxins into North Carolina’s water, air and soil through its stack emissions, unlined pits and wastewater ditches, contaminated equipment and leaks and spills violates both the Clean Water Act and Toxic Substances Control Act. If its violations are not stopped within 60 days, the conservation groups will file suit against Chemours in federal court to stop the pollution.
For nearly four decades, DuPont and Chemours discharged GenX and other per- and poly-fluoroalkyl (PFAS) compounds.
Over the past year, GenX has been found in at least 690 private drinking water wells up to 5.5 miles away from the Chemours’ facility.
WWAY reached out to both Chemours and DEQ.
The DEQ said in part, “DEQ will review SELC’s petition thoroughly and make an appropriate decision on their request. It appears SELC’s petition is primarily based on the multiple enforcement actions DEQ has already taken against Chemours to fight the company’s emissions of GenX and protect North Carolinians’ water and air.”
WWAY has not heard back from Chemours yet.
https://www.wwaytv3.com/2018/05/07/law-firm-to-sue-chemours-for-clean-water-act-toxic-substance-law-violations/
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Pentagon: Fluorinated Chemicals Taint Water at Scores of Bases, Neighboring Communities
May 7, 2018 | Environmental Working Group
By Bill Walker
The Defense Department has for the first time disclosed the locations of military installations where tap water or groundwater on or off base is contaminated with highly toxic fluorinated chemicals. But the list is incomplete, naming only locations where water is polluted above the Environmental Protection Agency’s “safe” level for tap water, which is well above levels found safe by independent scientists and regulations in a growing number of states.
In a report to the House Armed Services Committee, the Pentagon listed 36 installations in 23 states and territories, as well as in five nations overseas, where tests found on-base drinking water contamination exceeding the EPA’s lifetime health advisory for the fluorinated compounds PFOS and PFOA. In addition, the Pentagon identified 90 U.S. installations where PFOS or PFOA released on-base has contaminated groundwater. In many of these places, the contaminated water has migrated off-site, polluting nearby communities’ tap water with fluorinated chemicals in concentrations above the EPA advisory level.
Maureen Sullivan, a deputy assistant secretary of defense, provided the list to the Armed Services Committee in March. It was first reported April 27 by The Military Times, which said the list includes 50 Air Force bases, 49 Navy or Marine Corps bases, 25 Army bases and two Defense Logistics Agency sites. Some of the bases on the list are now closed and have been converted to civilian uses.
The disclosure adds to the rapidly expanding number of known sites of fluorinated chemical contamination. Last month, the latest update of an interactive map from EWG and Northeastern University detailed fluorinated chemical contamination at 94 military or industrial sites in 22 states, and in public water systems serving 16.1 million Americans in 33 states and Puerto Rico. Those locations overlap with an undetermined number of sites on the Pentagon’s list, which will be added to the map as more information becomes available.
The EPA’s advisory level is 70 parts per trillion, or ppt, for the combined level of PFOS and PFOA, but it is not an enforceable legal limit. New Jersey recently set the nation’s lowest legal limit for PFOA in tap water, 14 ppt, which is expected to take effect next year. In 2016, Philippe Grandjean of the Harvard T.H. Chan School of Public Health and Richard Clapp of the University of Massachusetts at Lowell published research concluding that an approximate safe dose of PFOA and/or PFOS in drinking water is 1 ppt.
PFOS and PFOA are the two most notorious members of the chemical family of thousands of per- and polyfluoroalkyl substances, known as PFAS. They have been linked to several types of cancer, thyroid disease, weakened childhood immunity and other health problems. They were phased out under pressure from the EPA after revelations that their manufacturers covered up evidence of their environmental and health hazards, and they are now banned in the U.S.
PFOS and PFOA were used for decades in hundreds of consumer products such as 3M’s Scotchgard and DuPont’s Teflon, but also in the firefighting foam used at military and civilian airports. The military is switching out firefighting foam with PFOS or PFOA, but is substituting foam that contains other fluorinated compounds whose chemical structures are very similar and that may be just as hazardous.
The Military Times reported that Sullivan told the committee the Defense Department had moved quickly to shut down wells, install water filters and/or provide bottled water at the 24 contaminated bases where the military is the drinking water supplier. But because the EPA advisory level is not an enforceable standard, fixing the problem is moving slower at the 12 contaminated bases where a local utility or private contractor supplies the water.
Sullivan told The Military Times that addressing the groundwater contamination will take even longer and cost billions of dollars, but the presentation to the committee said that process can’t proceed until the EPA sets an enforceable cleanup standard.
https://www.ewg.org/news-and-analysis/2018/05/pentagon-fluorinated-chemicals-taint-water-scores-bases-neighboring#.WvFFoaSFPco
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EPA Discovers Another Lead-Contaminated Neighborhood Near East Chicago
May 8, 2018 | Chicago Tribune
By Michael Hawthorne
Almost every time federal officials test a yard in northwest Indiana, they find staggering levels of brain-damaging lead in the soil.
The latest toxic neighborhoods uncovered by the U.S. Environmental Protection Agency are near an abandoned smelter that churned lead, arsenic and other heavy metals into the air during most of the last century. Soil samples collected since October have identified more than two dozen contaminated yards in Hammond and Whiting, and EPA officials expect to find more as they expand their investigation.
In a situation eerily similar to the lead-contamination crisis still unfolding in nearby East Chicago, authorities failed to test residential areas next to the former Federated Metals property for more than three decades, even though the EPA and the Indiana Department of Environmental Management designated it one of the region’s most toxic industrial sites in the mid-1980s.
Neighbors wonder why it took the federal agency so long to get involved. Based on interviews and a review of documents, the history of the shuttered Federated Metals smelter appears to have been all but forgotten until 2016, when career employees at the EPA’s Chicago office began digging through files on polluted sites in northwest Indiana that either haven’t been cleaned up or weren’t scoured thoroughly enough years ago.
“It leaves you thinking they really don’t care about us,” said David Dabertin, a Hammond attorney who led the state environmental agency’s northwest Indiana office during the early 1990s.
Nearly 10,000 people live within a mile of the former smelter. Between 2005 and 2015, 53 children younger than age 6 in census tracts surrounding the site had lead levels exceeding federal health guidelines — more than 8 percent of those tested, according to data provided by the Indiana State Department of Health.
The ongoing inquiry is part of the EPA’s response to national criticism of its slow reaction to polluted water in Flint, Mich., and lead-contaminated housing in East Chicago, where the EPA is overseeing the long-delayed removal of tainted soil from neighborhoods near other smelters that closed long ago. Crews are demolishing a housing complex after more than 1,000 low-income residents were forced to evacuate last year.
Like the EPA eventually did in East Chicago, officials began determining the scope of contamination near the Federated Metals site by testing publicly owned properties. They found levels of lead in the soil up to five times the federal cleanup standard for areas where children play, records show, prompting them to go door to door seeking soil samples from privately owned residential properties.
Of the 30 homes sampled last year, 25 had lead levels in soil exceeding the cleanup standard of 400 parts per million, records show. Nine of those yards had lead above 1,200 ppm in the top few inches of soil, with one as high as 2,760 ppm.
For now, the EPA has earmarked $1.7 million in taxpayer funds to remove contaminated soil around 20 homes where young children or pregnant women live. The agency is waiting for results from additional testing conducted in early April.
Scott Pruitt, the Trump administration’s embattled EPA administrator, drew attention to the investigation last month during a brief stop at one of the contaminated properties with Indiana Gov. Eric Holcomb. But the two Republican officials left residents with more questions than answers about hidden hazards in working-class neighborhoods built during the last century around Federated Metals and other industries, including the sprawling BP refinery across Indianapolis Boulevard from the former smelter.
Most local officials and media were not informed of the visit until after Pruitt and Holcomb had left to tour the Mascot Hall of Fame in Whiting. The few public records summarizing what the EPA knows about Federated Metals weren’t posted online until after inquiries from the Tribune, unlike the extensive documentation typically provided for highly polluted sites in the agency’s Superfund program.
Pruitt’s staff later emailed reporters a photograph of the EPA administrator shaking hands with Holcomb, flanked by Cathy Stepp, the agency’s regional administrator, and Whiting Mayor Joseph M. Stahura. Yet there has been little public outreach from the agency about its plans in Whiting and the Robertsdale neighborhood of Hammond.
Indiana officials did not respond to emailed questions. The EPA declined to make officials available for an interview, instead sending a prepared statement from Stepp on Friday.
“With our sustained cooperation and teamwork — and Administrator Pruitt’s personal attention — very soon impacted families in Hammond and Whiting will no longer face an unacceptable threat from lead-contaminated soil in their own backyards,” Stepp said in the statement.
On Lakeview Street, just north of the former smelter, several residents interviewed last week said they were unaware of the EPA investigation.
Steve Krajnik, a retired postal worker who has lived on the street his entire life, said he turned agency officials away when they asked for permission to collect a soil sample from his yard. He initially said he wasn’t concerned about lead hazards at his age, but later suggested why families with young children might have reason to be concerned.
“At night they would just let the smoke pour out of the Federated building,” said Krajnik, 80, noting his father built their family’s house in the early 1930s around the same time the smelter began operating. “On some nights my dad would come home from bowling, and the smoke was so thick you couldn’t see a thing.”
Federated Metals operated at the site from 1937 to 1983. The company was subject to a state enforcement action in 1985 and a pair of federal legal settlements that demanded an immediate cleanup. But for reasons still unexplained by state and federal regulators, toxic slag and other hazardous waste dumped throughout the property wasn’t removed until the mid-2000s.
Throughout the years, state and federal records show, regulators were more concerned about toxic chemicals leaching in groundwater than soil contaminated with heavy metals. There is no reference to residential testing in any of the historical summaries made public so far.
“This is another example of the EPA and the state of Indiana dropping the ball time after time again,” said Mark Templeton, director of the Abrams Environmental Law Clinic at the University of Chicago, who has not been involved in the Federated Metals case but represents citizens in other regional disputes.
Most of the on-site waste was sealed in a landfill next to the smelter building along Lake George. Earlier this year, records show, the EPA traced the lead found in surrounding neighborhoods by comparing the ratio of metals in samples collected from the landfill with those obtained from residential yards.
Dabertin, the former regional director of the state environmental agency, asked Pruitt and Holcomb during their recent visit why the federal and state governments have allowed other lead-processing companies to operate on the site since Federated Metals closed. In December, the state of Indiana renewed an air pollution permit for the current occupant, Whiting Metals, and rejected calls from Dabertin and others to hold a hearing to address public concerns.
It is unclear how much lead Whiting Metals emits into the air. The facility is small enough that it is not required to submit information to the EPA’s Toxics Release Inventory, a public database created in response to chemical disasters.
“You are telling these people there is lead in their backyard, but (the state environmental agency) just permitted that facility to produce lead,” Dabertin says to Holcomb on a video posted on Facebook by Thomas Frank, another local activist. “That’s a disconnect.”
Holcomb nodded toward the smelter property and promised Dabertin he would look into the matter. Dabertin said he still hasn’t heard back from the governor.
http://www.chicagotribune.com/news/local/breaking/ct-met-nw-indiana-lead-contamination-20180429-story.html
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Frackers Feeling Shaken Up by Pennsylvania Court Decision
May 7, 2018 | BNA Daily Environment Report
By Leslie A. Pappas
Anxiety is building around a court ruling in Pennsylvania that could potentially upend long-standing oil and gas arrangements, and affect hydraulic fracturing efforts nationwide.
Natural gas driller Southwestern Energy Production Co. has asked Pennsylvania’s Superior Court to rehear the case with more judges after a two-judge panel ruledApril 2 that hydraulic fracturing could create liability when fluids released from the fracking process flow onto adjoining properties.
The case, Briggs v. Southwestern Energy Production Co., in Pennsylvania’s Superior Court, has caught the attention of energy companies, oil and gas attorneys, and legal scholars nationwide, attorneys from around the country told Bloomberg Environment.
The ruling could have a chilling effect on oil and gas development because it overturns a long-standing, seemingly settled legal principle known as the “rule of capture,” they said.
According to the rule of capture, a driller on one parcel of land may extract oil and gas from underneath adjoining properties as long as the driller doesn’t physically trespass over the property line.
So far, a half-dozen energy associations, business and industry groups, a geologist, and a Texas-based professor of oil and gas law have asked to file friend of the court briefs in the case, an indication of the consequences the industry fears should the ruling stand.
Significant ImpactThe ruling holds potential for a significant economic impact for companies invested in gas development, because it increases the possibility that energy companies could face trespass claims in connection with their fracking operations that they otherwise wouldn’t have been exposed to, Anthony J. Carna, chair of McGuireWoods LLP’s oil and gas practice, told Bloomberg Environment May 3.
The case also could affect litigation in states that that don’t have a well-developed body of case law governing oil and gas, Carna said.
“Many states will look to other states for precedent to reach their opinion,” Carna said. “The worry is that other states looking at this issue that are facing it for the first time may look to Briggs for precedent.”
The case involves Southwestern Energy Production Co., a subsidiary of Houston-based Southwestern Energy Co., and the Briggs family, who own a roughly 11-acre property in Susquehanna County next to two hydraulic fracturing wells that the company has operated since 2011.
The Briggs sued the driller in November 2015 for trespass and conversion, seeking punitive damages. They argued that extracting the natural gas from beneath their property through hydraulic fracturing is a trespass, because the gas would be trapped forever if it weren’t forcefully fracked out.
Fracking the Marcellus Shale to extract natural gas from beneath the Briggs’ property is “akin to opening the gate of a neighbor’s livestock pen and taking the livestock as they walk out,” they said in a a court filing April 30, arguing that the court’s April 2 ruling should stand.
Fracking DistinctionsIn the April 2 opinion, the court concluded that due to distinctions between hydraulic fracturing and conventional drilling, the rule of capture “does not preclude liability for trespass” onto adjoining properties in situations where hydraulic fracturing is used.
“Unlike oil and gas originating in a common reservoir, natural gas, when trapped in a shale formation, is non-migratory in nature,” Judge John L. Musmanno wrote. For natural gas trapped in shale to flow freely, the shale must be physically fractured. “Shale gas does not merely ‘escape’ to adjoining land absent the application of an external force,” he wrote.
“Because hydrofracturing is the most economic and commonly used method of producing oil and gas across the country, and because Pennsylvania is the second-largest natural gas producing state, this Court’s decision unsettles the legal landscape for the entire industry,” Southwestern Energy told the court in its application for reargument April 16.
The ruling will have a “devastating effect” on unconventional gas exploration and “a massive, negative impact upon industry, employment and the Pennsylvania judicial system,” the Pennsylvania Chamber of Business and Industry said in a court filing.
Nationwide InfluenceEighteen percent of the nation’s natural gas comes from Pennsylvania, which is second only to Texas in gas production, said L. Poe Leggette, a partner with Baker & Hostetler LLP in Denver who co-leads the firm’s national energy industry team.
Any ruling adverse to hydraulic fracturing in Pennsylvania could shake up the entire industry and be influential in other states, he said.
Although case law in Texas is robust, the questions raised in Briggs aren’t yet settled in other states with hydraulic fracturing, such as Oklahoma, Louisiana, West Virginia, Colorado, Wyoming, and North Dakota, Leggette told Bloomberg Environment May 3.
The questions raised in the case also could influence regulators and legislators in other states with less favorable views toward gas development, which could have a chilling effect on development in those areas, said Jasper Mason, counsel at the firm’s Houston office. Mason joined Leggette to write a client alert about the opinion.
Mason said he was more worried about the fallout if the court doesn’t uphold the April 2 ruling, because legislators or regulators might then think they need to do more to protect owners of land near fracking activities.
Can of WormsThe ruling “opens a can of worms” and could have huge ramifications, Daniel Markind, a partner in real estate with a subspecialty in oil and gas development leasing at Weir & Partners LLP in Philadelphia, told Bloomberg Environment.
Gathering evidence to prove trespass would be difficult, for example. What tools would be used to measure the amount of natural gas taken underground? How far away from the drilling platform could trespass occur? Would landowners anywhere close to a well have the right to sue for trespass?
“The panel’s decision disrupts longstanding rules of law on which property owners, production companies, and many other stakeholders in Pennsylvania have relied to conduct their affairs,” the Marcellus Shale Coalition, a group representing about 200 energy producers and supply-chain companies that tap into the Marcellus and Utica shale formations, said in its filing to the court.
The Superior Court reversed the summary judgment and remanded the case back to the trial court for further proceeding. It isn’t known when the court will rule on the application for reargument.
https://news.bloombergenvironment.com/environment-and-energy/frackers-feeling-shaken-up-by-pennsylvania-court-decision?context=landing-heroes
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Energy and Water Bill Advances
May 8, 2018 | E&E Daily
By Christa Marshall and Ariel Wittenberg
The House Energy and Water Appropriations Subcommittee advanced legislation yesterday evening that ignores President Trump's request to eliminate the Advanced Research Projects Agency-Energy and slash the Department of Energy's renewable and efficiency programs.
The bill, which passed by voice vote, would increase funding for DOE's Office of Science to a record level of $6.6 billion and boost fossil fuel and nuclear energy research.
House appropriators, who largely backed Trump's plan last year, have a bigger money pot now because of a March spending accord that raised non-defense discretionary caps.
"This is a responsible bill" that focuses increases on areas that "provide for our nation's defense, support our nation's infrastructure," said subcommittee Chairman Mike Simpson (R-Idaho).
Ranking member Marcy Kaptur (D-Ohio) said, "Our bill is certainly a message to the executive branch that the legislative branch rejects the ill-considered and draconian cuts we've come to expect."
Under the House plan, DOE's fossil energy research and development programs would see funding levels rise to $785 million from the current $726 million.
The bill includes funding for Yucca Mountain, the proposed nuclear waste repository in Nevada, and would increase the budget for the Office of Nuclear Energy to $1.3 billion.
Funding for the Office of Energy Efficiency and Renewable Energy would decline from $2.3 billion to $2.1 billion, but the number is much higher than called for by Trump (E&E Daily, May 7).
Funding for ARPA-E would fall by $28 million, but the bill ensures the program stays intact since it has support among key appropriators in the Senate. Trump has called for eliminating the agency twice.
Like renewable and efficiency programs, spending on environmental management would fall under the House bill from current levels, to $6.9 billion.
That includes $5.8 billion for cleanup of sites contaminated by weapons production at Hanford, Savannah River, Oak Ridge, Idaho and other DOE sites.
The loan guarantee program also would see a cut of about $1 million to $32 million. Last year, the House sided with Trump in supporting elimination of the program, before money was added during budget negotiations.
Before the vote, Democrats criticized the lower spending on clean-energy programs and said funding for a new weapons capability in the bill was not fully debated.
At one point, full committee ranking member Nita Lowey (D-N.Y.) said, "ARPA-EEEE, Mr. Chairman" loudly to Simpson when listing her disagreements with the cuts.
That prompted Simpson to note the request for ARPA-E was zero. When Lowey said Trump's suggestion was not something "none of us would applaud," Simpson said, "That's why it's at $325 million." Last year, Simpson led the subcommittee in backing Trump to kill the program.Water
Kaptur decried two policy riders included in the bill.
The first would require the Army Corps of Engineers to stick to a 2017 fish management plan for dams on the Columbia River, preventing the agency from spilling extra water over the dams to protect salmon and steelhead.
The second would repeal the 2015 Clean Water Rule from EPA and the Army Corps defining which wetlands and waterways are covered by the Clean Water Act.
"These riders make moving our bill in a bipartisan manner quite difficult, and I strongly object to their inclusion," Kaptur said.
Earthjustice was also quick to question the provisions yesterday.
"You can put a tutu and a tiara on a pig, but it's still a pig," Vice President of Policy and Legislation Martin Hayden said.
"Republican leadership has decided to dress up their unpalatable, poison pill-ridden appropriations bill as something that doesn't hurt our health or environment; but let me tell you, it decimates commonsense safeguards that protect people," he said.
https://www.eenews.net/eedaily/2018/05/08/stories/1060081055
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House Energy, Water Spending Bill Rebukes Trump Budget Cuts
May 7, 2018 | BNA Daily Environment Report
By David Schultz
A House panel laid out its vision for funding federal energy and water agencies for the next fiscal year, and it differs significantly from a White House proposal earlier this year.
The House Appropriations Subcommittee on Energy and Water Development approved a more than $44 billion spending bill in a voice vote at a May 7 markup. The bill would fund the Energy Department, the Army Corps of Engineers, and other agencies for the coming fiscal year.
The Republican-drafted bill rejects many of the budget cuts the Trump administration proposed in its annual budget request. It funds the Corps at $7.28 billion, 50 percent more than the administration’s request, and the Yucca Mountain nuclear storage project at $267.7 million, 37 percent above what was sought.
Rep. Mike Simpson (R-Idaho), chairman of the subcommittee, said both Republican and Democratic White Houses routinely lowball their funding requests for agencies like the Army Corps, which enjoy strong political support because they operate in nearly every congressional district.
“Every year the administration is always marking down the Army Corps knowing that we’ll plus it back up,” Simpson told Bloomberg Environment.
The bill now advances to the full Appropriations Committee, which will take it up next week, according to Simpson.
Democrats on the subcommittee praised Simpson for defying the White House’s proposed cuts but were displeased by what they say is paltry funding at the Energy Department for efficiency, renewable fuels, advanced research.
There’s been little discussion about timing of the Senate’s version, according to Sen. Lisa Murkowski (R-Alaska), who is on the Senate appropriations panel. “No conversation yet [but] we all as appropriators want to be moving sooner rather than later,” she told reporters May 7.
Energy ProgramsThe bill would provide $146 million for the Energy Department’s new Office of Cybersecurity, Energy Security, and Emergency Response, which is being split off from within the existing Office of Electricity Delivery and Energy Reliability. The new office was proposed by the Trump administration in its FY 2019 budget request.
The funding would be an increase from the $96 million requested in the Trump budget. The office would be led by a new assistant secretary and oversee energy infrastructure security to address the increasing frequency of cyber and physical attacks on the U.S. electric grid, as well as natural disasters.
The bill would also cut the Energy Department’s Energy Efficiency and Renewable Energy Office at more than $2 billion, an almost 11 percent cut. Renewable energy and energy efficiency programs “have already received significant investments in recent years,” according to a May 6 statement from the House appropriations subcommittee.
However, it wasn’t all cuts for the Energy Department. The bill would also boost funding for the its Office of Fossil Energy to $785 million, $58 million more than current levels. The fossil energy office is responsible for advanced coal, natural gas, and oil technologies.
Additionally, the bill would fund the Energy Department’s Advanced Research Projects Agency-Energy program, which focuses on emerging energy technologies that aren’t far enough along to attract private-sector investment, at $325 million. The White House has proposed eliminating the program altogether.
Army CorpsThe outlook is much rosier for the Army Corps, which would get more than $7 billion under the House bill. This not only far beyond what the Trump administration asked for, but is almost 7 percent more than its current funding levels.
If these numbers make it into law, this would be the fifth consecutive year that Congress increased the Corps’ budget, Debra Calhoun, a senior vice president with the Waterways Council, said.
Calhoun, whose group lobbies on behalf of the shipping industry, said the bill had much in it to like for her members. In addition to the bumped-up funding, the House bill would also kill a proposal from the Trump administration to impose a new user fee on shippers that would have collected $1 billion over the next decade.
“It’s unclear where that money would have gone,” Calhoun told Bloomberg Environment.
Yucca MountainThe House bill also includes funding that would restart the Department of Energy’s long-dormant project to store nuclear waste in Nevada’s Yucca Mountain.
Measures to advance this project, which many Nevadans strongly oppose, had always been blocked by Harry Reid, the longtime Democratic leader in the Senate. But with his retirement at the end of the last session of Congress, activity picked up on efforts to move all of the country’s nuclear waste to the site.
Whether this funding survives in the bill once it gets to the Senate is far from clear, as it would represent a major defeat for Sen. Dean Heller (R-Nev.), one of the most endangered Republicans in this fall’s midterm elections.
In addition to this appropriations bill, another bill pertaining to Yucca Mountain is scheduled to get a vote on the House floor this week. The bill, H.R. 3053, would lay the legal groundwork for restarting the Yucca project and would also establish an interim plan to store the waste while the project is underway.
https://news.bloombergenvironment.com/environment-and-energy/house-energy-water-spending-bill-rebukes-trump-budget-cuts-1
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Split Power Sector Signals Broad Openness To EPA's CPP Repeal Plan
May 7, 2018 | Inside EPA
By Lee Logan
Major power sector trade groups are not standing in the way of the Trump EPA's proposal to repeal the Obama-era Clean Power Plan (CPP) utility greenhouse gas rule, and some are actively applauding the plan along with several other industry associations even as environmentalists detail legal arguments against the move.
In recently filed formal comments on EPA's CPP repeal plan, the agency also continues to receive calls from a broad swath of groups to craft a replacement rule -- a move that would rebuke free-market groups' call to scrap all agency climate rules -- though there is wide disagreement on how stringent such a measure should be.
The power sector's views on the CPP remain mixed, as reflected in comments from the Edison Electric Institute (EEI), which represents investor-owned utilities, as well as a handful of utilities that continue to embrace the rule.
EEI acknowledges a split in its large membership regarding the stringency and legal authority for the Obama-era CPP, however it suggests that it would not stand in the way of the Trump administration rescinding the rule.
Despite the group's split, “EEI's comments on the proposed CPP identified several key legal issues and arguments. Several of these legal issues are identified and addressed in EPA's proposed repeal and proposed change in approach to defining and applying [the best system of emission reduction (BSER)] while others may remain under the proposed approach,” the group says in its April 26 comments on the CPP repeal proposal.
The American Public Power Association (APPA), which represents publicly owned utilities, and the National Rural Electric Cooperative Association offered comments more sharply critical of the Obama climate rule, which is consistent with the groups' stances when the measure was being developed.
“APPA believes the CPP exceeded EPA’s [Clean Air Act] authority and would have seriously disrupted the markets in which APPA members operate. APPA therefore supports the Proposed Repeal because it is unlawful and because it represents an unworkable policy,” the public power group says.
Even so, some other power sector groups urge EPA to require “meaningful” GHG cuts in any new replacement regulation, implicitly rebuking claims by agency Administrator Scott Pruitt that EPA's authority under section 111 is narrow and could only be used to achieve relatively small emission reductions.
“We urge EPA to finalize a rule that achieves meaningful GHG emissions [cuts] from the electric sector in a legally durable manner,” says April 26 comments from a coalition of gas- and nuclear-heavy utilities known as the Clean Energy Group.
Fenceline Debate
Many of the comments EPA received focus on the key question of the agency's authority to set BSER for regulated plants, a term of art that largely determines the stringency of the agency's standards.
The Trump administration proposes to repeal the CPP because its BSER includes actions that occur “beyond the fence” of regulated plants. Trump EPA officials say this approach contradicts past rules drafted under air act section 111(d), and they propose to find that EPA is legally confined to writing standards based on “inside the fence” actions.
In the context of the power sector, many expect EPA to conclude that such an approach would mean efficiency improvements at coal plants, which would prompt only a few percentage points of GHG cuts from the power sector, at most.
That contrasts with the ongoing dramatic drops in GHG emissions in the power sector, with recent data showing it is three-quarters of the way toward meeting the CPP's targets, over a decade ahead of the rule's 2030 deadline.
Recent comments on this key question largely fall on predictable lines, with many industry and conservative groups, as well as Republican-led states, finding that EPA is limited to an inside-the-fence rule.
For instance, a broad coalition of manufacturing trade groups says in April 26 comments that “the Clean Power Plan’s 'generation shifting' mandate demands that two or more facilities together achieve the required performance rate. By aggregating facilities in this way, the Clean Power Plan created standards of performance for entire source categories in each State rather than for individual sources.”
The coalition charges this conflicts with legal precedent limiting EPA to writing standards to a single facility rather than a combination of facilities.
In addition, the American Petroleum Institute in April 26 comments says it “agrees that the [air act's] text, legislative history, and the historical approach to setting emission guidelines all support EPA’s proposed interpretation of Section 111(d).”
Environmentalist Comments
Environmental groups and Democratic officials strongly challenge the Trump EPA's fenceline argument, outlining claims that the CPP's beyond the fence approach is perfectly legal, while also saying that the agency appears to be ignoring a host of “inside the fence” strategies that could achieve significant reductions in addition to efficiency gains.
“The Administrator has not begun to show that the Clean Air Act precludes the CPP’s approach. The Administrator’s effort to find a categorical prohibition in the Clean Air Act’s text fails badly. Likewise, he has failed to show that the CPP’s statutory interpretation is not a permissible one,” says a coalition of 15 major environmental groups in April 26 comments.
Pruitt's “entire approach ignores how the source category works and the realities of the air pollutant in question, facts that were central to the CPP’s design. Yet he treats those facts as completely irrelevant to EPA’s responsibilities,” the comments add.
The groups say Pruitt acknowledges that the CPP's approach fits within the broad scope of BSER, but that “he looks elsewhere for disqualifying language, insisting that that the 'best system' language 'cannot be read in isolation.'”
The groups also say the repeal plan is flawed because EPA is not offering a concrete replacement measure and thus would be shirking its air act duty to address GHGs from one of the country's largest sources of planet-warming emissions.
Within the power sector, some companies continue to back the Obama approach.
A group of nine utilities -- including Austin Energy, Exelon, New York Power Authority and Southern California Edison, among others -- says in April 26 comments that BSER “must achieve meaningful emission reductions while reflecting the actual operation of the electric grid and the strategies the electric sector has deployed to reduce emissions. These strategies include generation shifting, or operating lower- or non-emitting resources more and operating higher-emitting resources less in response to market signals, regulatory constraints, or demand.”
Those utilities overlap to some degree with the membership of the Clean Energy Group, which similarly argues that EPA must ensure that its BSER would actually “reduce emissions.”
“We would oppose a legal interpretation of BSER that could lead to an increase in overall emissions. Thus, . . . we urge EPA to evaluate the potential for a legal interpretation that would result in a 'rebound effect,' i.e., the possibility that heat rate improvements at coal generators, in the absence of other measures, may increase the dispatch of these facilities and lead to higher overall emissions, for example.”
https://insideepa.com/daily-news/split-power-sector-signals-broad-openness-epas-cpp-repeal-plan
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EPA Floats More-Flexible Audit Policy For New Oil & Gas Facility Owners
May 7, 2018 | Inside EPA
By Doug Obey
EPA has released a new draft self-audit policy giving new owners of oil and gas facilities more latitude to negotiate timeframes for fixing equipment leaks, following through with prior agency suggestions that its current policy should be streamlined to address numerous oil and gas operations and a pattern of Clean Air Act violations at such facilities.
Once finalized, the draft would replace a default presumption under the current 2008 audit policy that new owners have 60 days to correct environmental violations they discover. More flexible language in the new plan allows the agency and the owner to negotiate the timeframe for proposed fixes.
The agreement, however, does call on participating companies to correct some violations within 60 days or seek an extension, including emissions violations “unrelated to engineering and/or design issues,” according to its text.
The policy appears aimed at equipment leaks that could release emissions of both ozone-forming volatile organic compounds and the potent greenhouse gas methane, with several direct references to storage tanks or related equipment.
The draft policy, on which EPA is seeking public comment until June 4, follows through with prior indications from EPA officials that they are looking for ways to strike a more collaborative tone with the oil and gas industry.
That includes past statements from EPA officials that the 2008 audit policy is better tailored to a few individual facilities, not hundreds of operations now changing ownership within the oil and gas sector.
“We think it would be wise to take that policy and create a stand-alone program on the side for use only in the oil and gas sector -- at this point at least -- to streamline the new owner audit policy,” said EPA enforcement official Patrick Traylor during a March 20 meeting of the Environmental Council of the States.
The new policy would use a standard oil and gas audit informed by a prior agreement with Texas gas producer Range Resources Corporation.
That move also is in line with prior statements by EPA enforcement chief Susan Bodine, as reported by E&E News in April. She said that deal to resolve Clean Air Act violations took a substantial amount of agency resources to negotiate and thus it “makes sense to use that case as a model agreement for other companies.”
While Range Resources was given three years to complete all phases of its audit for 390 facilities it had newly acquired, the draft policy also notes that the audit and compliance schedule for companies participating in the agreement “will be primarily based on the number of facilities subject to the agreement and the scope of the audit.”
One observer says that assuming the policy goes final, it is “too early to tell” what its effect will be until it is implemented, in part because even current polices do not entirely preclude longer time frames for resolving noncompliance.
'Responsible' Production
The new draft policy states that the oil and gas exploration and production sector is a “dynamic energy producing industry where facilities are routinely transferred in asset sales and other business transactions.”
“Auditing newly acquired oil and natural gas exploration and production facilities' compliance with environmental laws and regulations is a key way in which oil and natural gas exploration and production companies can help ensure responsible domestic energy production,” the document says.
The draft policy includes a requirement that participating companies notify EPA within six months of the date of acquisition of the new facilities, in contrast to the existing policy which specified a nine-month timeline to either disclose violations or enter into an audit agreement with EPA.
As the policy is still draft, however, it includes language taking into account when the policy may go final. Specifically, it says companies must notify EPA within six months of acquiring a new asset or within six months of when the new policy goes final -- but with a maximum of one year having passed between when a facility was acquired and agency finalization of the audit program.
The agreement also includes language differentiating between violations unrelated to engineering or design issues and those attributed to them, laying out with respect to the former a default presumption that a participating company “shall correct” each violation and take steps needed to prevent recurrence within 60 days. The company can request an extension which is subject to EPA's approval, and that approval “shall not be unreasonably withheld.”
The draft policy also states that if a company becomes aware of immediate and substantial endangerment to public health, welfare or the environment, it agrees -- “not withstanding any other language in the Agreement to the contrary” -- to address the conditions at all facilities “as expeditiously as possible."
Other components of the draft policy include timelines for modeling emissions from vapor control systems, doing field surveys, and addressing emissions from such systems, beginning with an instruction that a company using the policy submit a draft modeling guideline to EPA not later than 60 days after the effective date of the agreement.
https://insideepa.com/daily-news/epa-floats-more-flexible-audit-policy-new-oil-gas-facility-owners
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May 7, 2018 | Natural Gas Intelligence
By Charlie Passut
Developers and marketers of natural gas, crude oil and natural gas liquids pipeline projects face a unique set of factors that directly affect the issue of investment risk, including the fear of building a late project that ultimately proves to be unprofitable.
Orlando Alvarez, CEO of BP Energy Co., told attendees of the Energy Bar Association's annual meeting and conference in Washington, DC, on Monday that he believes the Dodd-Frank Wall Street Reform and Consumer Protection Act is the top factor facing pipeline project backers because of the uncertainty the law creates for pipelines and their customers.
"A lot of banks have exited the business, and other players have as well," Alvarez said. "That creates higher costs for those that remain. There's also a plethora of rules in which you always want to be compliant. There are still things working within Dodd-Frank, change that's in the works today. That uncertainty continues to create higher costs."
Alvarez said another factor affecting investment risk involve "recent requests of the federal government to change the rules of the game when it comes to competitive power markets." Case in point, the Department of Energy's notice of proposed rulemaking -- aka the DOE NOPR, submitted last September -- which proposed changing the nation's grid reliability and resilience policies.
"Whether it is the DOE NOPR or subsidies to coal and nuclear power...that would change the way the market works," Alvarez said. "We want competitive markets [and] fuel neutrality so that the market will work."
Rockies Express Pipeline LLC President Crystal Heter said tax law and new tariffs on steel and aluminum imports were two factors directly affecting investment risk in interstate natural gas pipeline projects.
"Both are moving very quickly, and perhaps too quickly at this point, to allow the well-reasoned decision-making that is required, and for assessment of the differences in how that's treated amongst different entities," Heter said.
Andrew Black, CEO of the Association of Oil Pipe Lines (AOPL), said pipeline marketers and developers suffered "two significant losses" at the hands of FERC. The first occurred in December 2015 when the Federal Energy Regulatory Commission changed the methodology behind its rate index process.
"FERC made two changes to its methodology that really changed the index," Black said. "Steel costs are going up and pipeline safety costs are going up. But you have an index that is only half of what we believe the cost change experience in oil pipelines allows it."
Meanwhile, Black said the second "loss" took place two months ago, when the Commission ruled it would no longer allow master limited partnership (MLP) interstate natural gas and oil pipelines to recover income tax allowances in cost of service rates.
"Any shipper in pipeline has to recognize now that the permitting process can take longer and it's going to be uncertain," Black said. "We talk about steel tariffs, but nobody in this room can have any idea whether there will be a tariff or a quota on steel."
Black cited recent surveying of the pipeline industry by RBN Energy LLC. The head of AOPL said RBN analysts had found that pipelines were not only "competing with each other and other modes for delivering fuels now, [they are also] competing for expansion projects.
"RBN has profiled that the fear from the Permian Basin is that you build the pipeline that becomes one pipeline too many," Black said. If that were to happen, a pipeline's "long-term contracts really aren't long-term any more, and maybe [they] shouldn't have made that decision [to build]. They're worried about overbuilding, and they have to factor that into their prices."
Horror Stories on Steel Tariffs
Despite last week's announcement that negotiations over the Trump administration's proposal to levy a 25% tariff on steel imports had been extended for another 30 days, Black said the issue "is really affecting the decisions that pipeline operators and shippers have to make about projects.
"We're hearing anecdotes about foreign pipe makers unwilling to bid in response to requests by American companies for pipeline projects. We're hearing about pipeline operators not knowing what the price of their steel in going to be. We've had a couple of exemptions for certain countries for, what, two months? That helps reduce Wall Street volatility, but that does nothing to help a pipeline operator or a shipper considering signing up for pipeline capacity...
"We have specialty steel products in our pipeline process that aren't made in the United States. We have a lot of American [pipe] makers that have exited the pipeline steel market for other steel products that are more consistent and have better returns. Pipeline steel is a niche market. It's high-cost, it's cyclical, and a lot of American firms have abandoned that to move to those other markets. So now anybody who goes forward on a pipeline project has to factor in a lot more risk."
A 'Well-Funded Minority'
Black added that, when given the chance to work, the existing federal and state permitting process for pipelines provides a balance between infrastructure expansion and environmental protection.
"Pipelines, liquid and gas, can generally meet the environmental standards that are a part of these reviews," Black said. "Our great poster child of a long-delayed pipeline, Keystone XL, satisfied the environmental reviews, even conducted by President Obama's State Department. The EIS showed that compared to alternatives, pipelines had fewer incidents, releases and carbon emissions."
Pipeline developers and marketers want a permitting process that is "fair, timely and has decisions made on the merits," according to Black.
"There are improvements that are possible in regulatory reform. We've asked for a consistent application of the rules, for the review to stay within scope and for agencies to coordinate with each other. There have been some improvements, including at the State Department, which has cross-border [authority].
"Right now, we don't need major changes. We just need government policymakers to be able withstand the pressure from that well-funded, well-organized minority that is trying to stop people from using fossil fuels in their daily lives, and trying to stop pipelines from being approved. If they can stick to what they're asked to look at in these reviews of pipelines, even amidst pressure, we will be able to deliver what Americans need."
But Heter countered that organized opposition to pipelines isn't going away.
"It will always be there, even when we're allowed to follow the policies and requirements as they're laid forth," Heter said. "The more that pipeline operators perform well, execute properly, create partnerships with their community, start with early outreach and prove that the construction can be handled appropriately -- that may alleviate some of the pressure."
http://www.naturalgasintel.com/articles/114296-pipeline-investments-dogged-by-changing-regulations-on-and-off-tariffs-protesters-and-fear-of-redundancy
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Waking up to the Dangers Next Door
May 8, 2018 | Treehugger
By Christine Lepisto
According to the Center for Public Integrity, at least 16 million Americans are in the potential path of toxic acid fumes if an industrial incident were to occur. It was news to the neighbors of Husky Energy in Superior, Wisconsin, that they belong to that crowd.
The hazardous material involved in this case is hydrofluoric acid or HF. The residents of Superior learned that they belonged to the 16 million in the path of a potential HF release when an explosion shook the neighboring refinery in late April. As a precaution, everyone in a 3-mile radius and up to 10 miles downwind was evacuated. Citizens later learned that the extensive evacuation related to the risk that the HF tank would be compromised due to the explosions and ongoing fire.
Getting the concentrated liquid HF acid over a patch of skin the size of a man's palm has been sufficient exposure to be fatal without treatment (an effective treatment is available). What makes it also particularly hazardous is that it does not just 'spill' but easily aerosolizes and moves offsite in a cloud. It is used in refineries as a catalyst to alkylate hydrocarbons, which are then blended into high octane gas. While HF is used safely in many applications most of the time, there are safer substitutes available for this alkylation process.
The Chemical Safety and Hazard Investigation Board has a team at the site and we cannot know exactly what caused the terrible incident until their work is complete, but it can be said in general that everything turned out as well as an emergency manager could possibly hope in the face of such a significant incident.
There were no fatalities, and only one employee was injured severely enough to require extended hospitalization; he is reported to be in "good condition" after suffering blast injuries. The safety measures to protect the HF tank in case of nearby fires worked, and no HF was released. All of this may be luck, but more likely it reflects that the safety measures in place even for unintended events functioned as required.
On the other hand, shrapnel from the primary explosions pierced an asphalt tank, releasing a flow of the flammable material to feed the fire. Safety measures such as large berms (dike walls) around each tank prevented the liquid from spreading the fire, but extinguishing such a fire took time and a lot of firefighting foam (another potential chemical hazard, although the worst foams have been banned now.)
So even with a lot of things that appear to have gone right, this still turned into a major incident and disrupted a lot of lives. That is ultimately the reason why refineries need to evaluate their use of HF: even with our best safety management technologies, sometimes things go wrong.
There are safer alternatives, including use of other acids less likely to travel through the air in case of an incident. Or there are refineries now using a completely new technology, solid acid catalysts, that are a much safer substitute. When it is possible to avoid the worst risks altogether and still get the benefits of chemistry in our lives, that is the path that must be preferred.
In the wake of the evacuation, the mayors of Superior and its twin port, Duluth Minnesota, have recognized the economic value that the refinery jobs bring to the community but are pressing the Husky Energy refinery to find a safer alternative to the HF. Husky Energy has promised to conduct a renewed review of the HF process safety as they rebuild.
The incident is also renewing pressures on the Trump administration which has delayed an Obama-era amendment to the risk management program (RMP) rules that would require facilities handling hazardous substances to document a review of safer alternatives in their RMP reports.
In Europe, the law requires industrial sites handling these types of chemicals to inform neighbors about the hazards, the measures taken to minimize risks and the recommended emergency procedures in case of a serious incident - without the public having to ask for this information. It is too bad that Americans have to go to great lengths to learn the same information.
You can check your street address at the EPA's Vulnerable Zone Indicator System webpage. They will email you if the address about which you are inquiring is in an area that could be affected by a Risk Management Plan which businesses that handle hazardous chemicals are required to file with the EPA.
If you find you are in a vulnerable zone, you can access the risk management plans of neighboring facilities at a Federal reading room or through a Freedom of Information Act (FOIA) Request.
Being informed about emergency plans in advance can help citizen prepare and improve outcomes in case of an incident. It can also give citizens power to get involved with industry in their community. Dialogue and a sense of responsibility to the neighbors can be strong tools to push towards the best balance of economic benefits with the lowest technically and economically feasible risk.
https://www.treehugger.com/corporate-responsibility/waking-dangers-next-door.html
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Opinion: Freight Rail App Plays Vital Role for First Responders
May 8, 2018 | NorthJersey.com
By Joseph Dooley
As Linden fire chief, I know how important it is for first responders to have access to critical safety information when responding to a life-threatening crisis. Fortunately, industries like freight rail are working alongside emergency personnel to develop procedures and technologies that can save lives should disaster strike. This new technology will play an increasingly vital role in how first responders manage a rail emergency by ensuring they can swiftly and safely respond to a dangerous incident.
Recent technological innovations have helped make rail transportation safer than ever for workers, communities and those who risk their lives responding when an incident does occur. This technology includes the AskRail mobile app, which puts real-time, accurate data about any potentially dangerous materials a train may be carrying, such as crude oil or hazmat chemicals, into the hands of first responders at the scene of a rail emergency.
AskRail was developed by the freight rail industry and the International Association of Fire Chiefs and is constantly being updated to include new tools and information. The app has been downloaded by tens of thousands of first responders since it originally launched in 2014.
Accurate, real-time information is the number one requirement in an emergency situation, and the AskRail app provides first responders on the scene instant access to what they need to know. AskRail is a secure program all first responders can download. Full access to all of the app’s resources is available to first responders who have been approved by a railroad or have participated in trainings held by Class I railroads or the Transportation Technology Center (TTCI), the technology development and training facility run by the Association of American Railroads.
Recent updates to the app have given first responders access to more accurate mapping technology, allowing for faster diagnosis of how to proceed in emergency situations. This information sharing is critical to emergency response programs in New Jersey and across the country.
The good news for first responders and New Jersey residents is that hazardous materials moved by rail throughout the Garden State already arrive safely at their destinations more than 99.99 percent of the time. But in the rare case an incident does occur, AskRail, in conjunction with first-responder training programs conducted by railroads and TTCI across the country, have made responding to accidents quicker and safer than ever.
Beyond identifying hazardous railcars and locating vulnerable landmarks, AskRail serves as a critical communication tool by putting emergency personnel on the scene of an incident in direct contact with the emergency departments of all seven Class I freight railroads plus Amtrak.
With freight rail playing a central role in supporting the Port of New York and New Jersey — which saw nearly $200 billion in cargo move through the region in 2016 — AskRail is an additional layer of protection complementing a series of efforts the freight rail industry has made over the past 30 years to stop prevent accidents. Through initiatives such as supporting stricter tank car safety standards in 2015 and investing in maintaining track and equipment integrity, the rail industry has seen accident rates fall drastically—80 percent since the 1980s.
Now with AskRail, first responders can directly collaborate with the rail industry to ensure the safety of our communities in the rare event a train accident happens. The app ensures first responder preparedness through instant access to vital information, and it is the type of technology that other industries should consider developing to assist first responders and keep the communities in which they operate as safe as possible.
Joseph Dooley is Chief of the Linden Fire Department.
https://www.northjersey.com/story/opinion/contributors/2018/05/07/opinion-freight-rail-app-plays-vital-role-alert-first-responders/587664002/
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Dominion Warns of Dirty Power Imports if Virginia Joins Carbon Trade
May 7, 2018 | BNA Daily Environment Report
By Gerald B. Silverman
Dominion Energy Inc. and Virginia businesses argue that the state’s proposed carbon trading program will raise electricity rates and increase imports of dirtier power.
Dominion, Virginia’s largest power company, said a proposal for the state to join the Regional Greenhouse Gas Initiative would lower carbon emissions locally, but raise emissions of planet-warming gases in the region.
That’s because the commonwealth would import more power from states outside the trading program—such as West Virginia, North Carolina, and Kentucky— that produce power from coal or other fossil fuels with high carbon emissions.
The potential for significant imports of these fuels from states not covered by the program presents a challenge to Virginia and RGGI expansion. New Jersey also is gearing up to rejoin the cap-and-trade program this year. The two states would expand RGGI to 11 states on the East Coast.
Environmental groups and RGGI supporters say Dominion’s projections are wrong, asserting that the proposal is structured to prevent significant imports of dirtier energy.
Dominion, in an annual filing with the Virginia State Corporation Commission, said Virginia’s carbon trading plan would raise electricity rates for its customers by $500 million from 2020 to 2030. It also projected that plan would effectively lower the selling price for RGGI carbon allowances and thereby cost the nine current RGGI states $876 million in lost allowance revenues over the 10-year period.
Electric power companies in the nine RGGI states are required to purchase carbon allowances at auction, with proceeds largely going for renewable energy projects and ratepayer relief.
Chamber of Commerce Opposes RGGIThe Virginia Chamber of Commerce opposed the state carbon trading plan because it would increase electricity costs and harm the state’s economic competitiveness, Samantha Moore, a spokeswoman for the chamber, told Bloomberg Environment. The chamber also projects that cheaper, more carbon-intensive power would be imported from out of state.
The chamber would like the Virginia Department of Environmental Quality to kill the regulation.
Short of that, it wants the agency to take steps to keep electricity rates relatively low for businesses. Virginia has the 19th-lowest average electricity rates in the country, according to the business advocacy group.
Virginia could mitigate the trading plan’s impact on imports and rates by encouraging renewable energy and energy efficiency under the newly enacted Grid Transformation and Security Act (S. 966), according to Dominion.
“From the company’s perspective, any program setting carbon emission targets for EGUs [electric generating units] must account for the dynamics of power generated outside of and imported into Virginia,” it said in its filing. “The program baseline and targets must reflect and account for the fact that Virginia is a net importer of energy from more carbon-intensive out-of-state resources.”
“The program also must be designed to allow for expansion of lower-emitting cleaner generation in the state to address energy needs and to reduce imports of electricity in accordance with state energy policy,” it added.
Virginia is on track to link with the Regional Greenhouse Gas Initiative in 2020 under regulations expected to be approved later this year. Karen Sabasteanski, a policy analyst in the Virginia Department of Environmental Quality’s Office of Regulatory Affairs, told Bloomberg Environment that it was too early to say if any changes would be made in the proposed rule to address comments from Dominion and others.
Virginia would be the second largest state in the RGGI program, as measured by carbon emissions, after New York. Virginia’s regulations would cover 33 sources and 123 generating units of at least 25 megawatts, according to the state’s environment department. The Virginia power sector generated 34 million tons of carbon in 2016.
Emissions LeakageOne of the key issues for Dominion and opponents of the Virginia plan is emissions “leakage,” which is the importing of cheaper and more carbon-intensive electric power from states not covered by the regulatory scheme. Leakage was an important enough concern when RGGI formed that the original 2005 memorandum of understanding between the states requires an annual report on the issue.
The latest annual leakage report—like previous ones—found that leakage isn’t a significant problem. “Monitoring results show that there has been an increase in the amount of non-RGGI electric generation serving load in the RGGI region, combined with a decrease in the CO2 emissions rate of this generation,” the April 27 report said.
“These two trends largely offset one another,” it said. “Overall, the monitoring results show that there has been a 1.4 percent increase in average annual CO2 emissions from non-RGGI electric generation serving load in the RGGI region during the period of 2013 to 2015.”
Dallas Burtraw, a senior fellow at Resources for the Future, said electricity prices in Virginia will depend on the emissions cap established by the cap-and-trade program, but ratepayers are in a “win-win” position.
“If the cap is greater than the emissions, then Virginia will end up selling allowances into RGGI and ratepayers in Virginia will win through additional revenue that can go toward the rate base and reduce regulated electricity prices,” he told Bloomberg Environment in an email.
“If the cap is less than emissions, then Virginia will end up as a net purchaser of allowances from RGGI,” he said. “This also will benefit ratepayers because the relatively cheap compliance option of purchasing allowances will save money compared to achieving emissions reductions in the state.”
Auction DesignBurtraw was one of the original architects of RGGI’s auction model, along with William Shobe, director of the Center for Economic and Policy Studies at the University of Virginia. Shobe told Bloomberg Environment that the unique auction model being proposed by Virginia—a consignment auction—will reduce leakage by effectively subsidizing electric generation in the state.
Under the consignment model, which differs from the direct auction used by the other RGGI states, carbon allowances are allocated for free to electric power companies based on their recent generating output. Companies would then be required to “consign” the allowances to the quarterly RGGI auction for sale.
Shobe said Dominion’s demand forecast is too high, skewing all its other predictions.
Kit Konolige, senior utility industry analyst at Bloomberg Intelligence, said linking to RGGI shouldn’t have much of an impact on Dominion’s bottom line. He said Virginia is a regulated jurisdiction that allows utilities to recover costs needed to comply with state regulations. Moreover, he said, RGGI hasn’t had a significant impact on the financial health of electric companies in the Northeast.
“Everything that the regulators do has some impact,” he told Bloomberg Environment. “But RGGI should have a relatively small effect on the price of delivered electricity.”
https://news.bloombergenvironment.com/environment-and-energy/dominion-warns-of-dirty-power-imports-if-virginia-joins-carbon-trade
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Sierra Club Seeks to Keep Key Air Permit Suit in D.C. Circuit
May 7, 2018 | Inside EPA
Sierra Club in a new legal filing is fighting EPA's call to transfer a suit over a key air permit from the U.S. Court of Appeals for the District of Columbia Circuit to the 10th Circuit, claiming the suit has national scope because the agency shifted its overall Clean Air Act permitting policy through denying an objection to the permit.
Environmentalists are suing EPA in the D.C. Circuit and the 10th Circuit in suits both called Sierra Club v. EPA, seeking judicial review of EPA's rejection of their petition for the agency to object to the Title V air operating permit of the Pacificorp Hunter coal-fired power plant in Utah. Title V permits are “umbrella” permits that contain all applicable requirements for an industrial facility, including underlying new source review or similar prevention of significant deterioration (PSD) air permits.
EPA has sought to dismiss the D.C. Circuit case or transfer it to the 10th Circuit, arguing that its decision is only locally applicable.
But Sierra Club in is May 4 motion in opposition says, “the Order’s plain language unambiguously applies EPA’s revised legal interpretation to implementation of the Title V program nationwide, making EPA’s final action nationally applicable. Further, EPA made clear that its response to Sierra Club’s petition was based on this determination of nationwide scope and effect.”
Further, “In the six-plus months since its issuance, EPA has relied on the revised regulatory interpretation announced in the Hunter Order to deny at least four other petitions to object to Title V permits,” Sierra Club says, offering proof of the order's national policy precedent.
EPA's Hunter decision turns on Sierra Club's accusations that the plant's Title V permit lacks necessary PSD permit requirements, including “best available control technology” (BACT), because the group argues the plant is a “major source.” Utah air regulators found the plant is not a major source, and hence need not undergo BACT review, issuing a “minor source” permit instead. Sierra Club further claimed flaws with “plantwide applicability limits,” or facility-wide emissions caps, included in the permit.
In its rejection of the group's petition, EPA said it would henceforth defer to state permitting authorities on the terms of underlying permits, and would not second-guess whether such permits are required in the first place. This was a departure from prior administrations' broader view of what EPA should consider when reviewing Title V permits, the agency acknowledged.
Sierra Club says the national policy shift means the case belongs in the D.C. Circuit, which hears Clean Air Act suits pertaining to agency actions that are “nationally applicable,” or for which EPA has made a determination of “nationwide scope or effect.” The group's 10th Circuit suit is merely “protective,” in the event that the D.C. Circuit action is transferred or dismissed. The D.C. Circuit is “the only appropriate venue for this case,” Sierra Club says.
The group says that language in EPA's Hunter order explicitly applies to the future conduct of both the agency and all states' permitting authorities going forward, and this is sufficient to be a declaration of “nationwide scope or effect."
https://insideepa.com/daily-feed/sierra-club-seeks-keep-key-air-permit-suit-dc-circuit
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Pruitt Fast-Tracked California Cleanup After Hugh Hewitt Brokered Meeting
May 7, 2018 | Politico Pro
By Emily Holden and Anthony Adragna
EPA Administrator Scott Pruitt placed a polluted California area on his personal priority list of Superfund sites targeted for “immediate and intense” action after conservative radio and television host Hugh Hewitt brokered a meeting between him and lawyers for the water district that was seeking federal help to clean up the polluted Orange County site.
The previously unreported meeting, which was documented in emails released by EPA under a Freedom of Information Act lawsuit by the Sierra Club, showed Pruitt’s staff reacting quickly to the request last September by Hewitt, who has been one of Pruitt’s staunchest defenders amid a raft of ethics controversies around his expensive travel, security team spending and a cheap Washington condo rental from a lobbyist.
Pruitt has drawn criticism from environmentalists and other critics for letting prominent GOP backers and industry groups influence the agency's agenda — even as he has kicked scientists off of EPA's advisory panels and moved to limit the kinds of peer-reviewed research it will consider when making decisions.
In many cases, the people whose advice Pruitt is heeding could be useful supporters for him in a future race for U.S. senator or president. They include GOP megadonor Sheldon Adelson, who — as POLITICO reported in March — persuaded Pruitt last year to take a meeting with an Israeli water purification company called Water-Gen that later won a research deal with the EPA.Hewitt, a resident of Orange County whose son James works in EPA’s press office, emailed Pruitt in September to set up a meeting between the administrator and the law firm Larson O’Brien, which employs Hewitt and represents the Orange County Water District. Pruitt had been planning to meet with the lawyers in California a month earlier, but cancelled the trip to undergo knee surgery.
“I’ll join if the Administrator would like me too or can catch up later at a dinner,” Hewitt wrote in his Sept. 18 message. Hewitt added that the issues surrounding the Superfund site were “Greek to me but a big deal in my home county.”
Pruitt’s aides responded within minutes and quickly confirmed an Oct. 18 meeting for the lawyers and a project director.
Six weeks after that meeting, on Dec. 8, the Orange County North Basin site appeared on Pruitt’s list of 21 contaminated areas to address. A month later, Pruitt proposed listing the site on EPA’s National Priorities List, a move that could make it eligible for long-term federal cleanup funding from the federal government if the responsible polluters cannot be identified and forced to pay for its remediation.
Since then, Hewitt has been a robust defender of Pruitt, dismissing his recent controversies as “nonsense scandals” on MSNBC in early April and saying his detractors were “just trying to stop the deregulation effort.”
Pruitt has touted the agency’s Superfund work as one of his key priorities, setting up a task force to seek to speed up the clean-up of the nation’s worst contaminated sites. That task force had been headed by Albert “Kell” Kelly, a former banker and longtime friend, who departed the agency last week after news about loans he provided to Pruitt in Oklahoma, including the mortgage provided to Pruitt for a house he bought from a lobbyist when he was a state senator.
Environmental advocates have worried Pruitt’s efforts to identify Superfund priority sites would bypass the process set up by Congress to ensure cleanup resources are divided fairly, and that he could focus on sites seen as important to his political supporters. And environmentalists have said Pruitt’s rush to claim that contaminated properties have been remediated could risk turning them over to local governments and businesses that might pursue cheaper, inadequate solutions.
Elgie Holstein, senior director for strategic planning at the Environmental Defense Fund who has been tracking EPA’s Superfund actions, said the connection to Hewitt is “not a surprise.”
“The biggest fear we have is that No. 1, the administrator’s political priorities and personal ambitions, political ambitions become the primary criteria for action under this program instead of science and health,” Holstein said.
EPA never disclosed the meeting with Hewitt’s contacts. It was listed on Pruitt’s public calendar as a staff briefing. But on his private Outlook schedule, which the agency has released in response to lawsuits, it appeared as an “Orange County Superfund Site” meeting with Kelly and two other staffers. The records did not list the Californians in attendance at the meeting at EPA headquarters in Washington.
But EPA spokesman Jahan Wilcox confirmed that two lawyers representing the water district, Robert O’Brien and Scott Sommer, and the water district director of special projects, Bill Hunt, were there. A third lawyer, former federal Judge Stephen G. Larson, was forced to cancel his trip due to wildfires in California, according to emails.
“Hugh Hewitt helped arrange the meeting at the request of the water district but did not attend,” Wilcox said.
Wilcox said the meeting was for the water district to “brief EPA on the Superfund site’s cleanup efforts and request expedited cleanup,” following a 2016 agreement with the agency to conduct a remedial investigation and feasibility study, at a cost of $4 million over two years. Hunt did not immediately respond to a request for comment.
Hewitt in an email to POLITICO called Pruitt a friend and said he does not have a working relationship with him. He said that his firm has represented the water district and worked on the site with EPA’s regional office for years but that he had not participated in that work.
Hewitt said he requested a meeting because the water district wanted to brief the new EPA team, he said, adding that he was an Orange County resident until 2016 as well as an Orange County Children and Families Commission member. He said that he “very much” wanted the Superfund site remediated as soon as possible.
According to an EPA fact sheet, the Orange County site has more than five square miles of polluted groundwater containing chlorinated solvents and other contaminants across the cities of Anaheim, Fullerton, and Placentia. It includes the Orange County Groundwater Basin, which provides drinking water to more than 2.4 million residents across 22 cities, according to the agency. Those pollutants can damage humans’ nervous systems, kidneys and livers, and some are considered carcinogenic.
EPA has just begun its process of studying the contamination and it has not determined which companies caused the pollution in the area. But an administrative settlement with the EPA in 2016 says the area was home to “electronics manufacturing, metals processing, aerospace manufacturing, musical instrument manufacturing, rubber and plastics manufacturing, and dry cleaning.”
Hewitt also thanked EPA schedulers for working to arrange a meeting between Pruitt and the California Lincoln Clubs, which describe themselves as in favor of “limited government, fiscal discipline and personal responsibility.” After some rescheduling Pruitt eventually met with representatives of the group on a trip to California in March of this year, according to his public calendar. Prominent Orange County businessman John Warner also helped to connect that group with staffers.
Pruitt and his scheduling staff have frequently sought to set up meetings with or for influential Republican figures, according to the internal EPA emails.
His team accepted an invitation for him to address The Philanthropy Roundtable at an invitation-only event at the White House for “conservative and free-market foundation CEOs and individual wealth creators to discuss the greatest opportunities for foundations to protect and strengthen free society” and “what [Pruitt] views as unique opportunities for philanthropic action.
As POLITICO reported in March, Pruitt also met with an Indiana coal executive and Trump fundraiser who was seeking to soften a pollution rule.
Pruitt also crafted his travel schedule — including a tour of states in August — to meet with big business much like a member of Congress would during the annual recess.
In July, EPA’s associate administrator of public engagement Tate Bennett was working with Pruitt to “essentially create an August recess for the EPA to be out in the states talking with individual companies & doing listening sessions within sectors,” said Leah Curtsinger, the federal policy director for the Colorado Association of Commerce & Industry, in an email introducing Bennett to her husband, public affairs director at coal company Cloud Peak Energy and a fellow alum of Senate Majority Leader Mitch McConnell’s office.
https://subscriber.politicopro.com/energy/article/2018/05/pruitt-fast-tracked-california-cleanup-after-hugh-hewitt-brokered-meeting-521215
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Cassidy Charts Own Course on Climate Change
May 8, 2018 | E&E Daily
By Geof Koss
When French President Emmanuel Macron urged a joint session of Congress last month to heed the risks of climate change, his comments caught the ear of one Republican senator in the audience.
Louisiana's Bill Cassidy, whose home state is a major oil and gas producer, was struck by Macron's call for a "smooth transition" to a low-carbon economy. The message resonated with the senator in part because of a conversation on that very subject he had had the previous day with a member of the French Parliament who was traveling with Macron.
That French politician pointed to the high percentage of carbon-free nuclear energy that powers his country, but conceded that Cassidy was correct when he noted that France's "nuclear base is about to expire ... and it's too expensive to replace," the senator recalled to E&E News after the speech.
Also capturing Cassidy's attention were the words that immediately preceded the climate portion of Macron's speech, in which the president called for the protection of the middle class, which he called "the backbone of our democracies."
Macron "made it sound like these are isolated issues which have to be addressed separately," said Cassidy, who sees the fate of the middle class in a global economy and the push to decarbonize as inextricably linked.
Both points made in the speech provide a window into the mind of Cassidy, who since joining the Senate in 2015 has spent a surprising amount of time and energy thinking about climate change.
In press releases, in op-eds and during hearings on the Energy and Natural Resources Committee, on which he sits, Cassidy regularly brings up climate change unprompted — usually while touting the benefits of natural gas, a cleaner-burning fossil fuel than coal or oil and a resource that his state happens to produce, consume and export in large quantities.
Cassidy's interest in climate change sets him apart from the bulk of his GOP colleagues, many of whom question the underlying science and regularly sidestep the issue entirely.
And unlike the dozens of vulnerable House GOP moderates who have flocked to the bipartisan Climate Solutions Caucus, Cassidy has no need to insulate himself politically on the topic in his deep-red state. His lifetime League of Conservation Voters voting score is 7 percent.
Yet, in a recent interview, Cassidy spoke of finding "common ground" with Democrats on energy policies that recognize the positive economic and environmental benefits of natural gas, which he sees as complementing greater use of intermittent renewables favored by the opposite party.
"You get the health benefits of lower particulate matter, lower mercury and everything else, but you also get the ability to power a modern economy and you also enable, if you wish, the deployment of renewables," he said. "So it all works together."A quest for 'practical means' to address climate
Unapologetically pro-fossil-fuel and dismissive of what he calls the "environmental left," Cassidy doesn't dispute the science of climate change, which he calls "valid."
He points to the positions expressed by representatives of major oil and gas companies and chemical manufacturers who "come into my office and say they accept it," with the companies correspondingly spending hundreds of millions of dollars to protect their assets. "The fact that they are means a lot to me," he said.
What Cassidy takes issue with are the solutions proffered to address warming.
"What I'm just saying is, what are the practical means to address it?" he said last month. "And the practical means to address it by the left are absurd."
Cap-and-trade emissions schemes and carbon taxes are a nonstarter for Cassidy, who sees the European Union as a cautionary tale.
"The reality is, you can look at manufacturing jobs in the E.U. after they began to do their cap and trade, and there was a migration of that industry to China," he said, noting lax Chinese environmental standards and that nation's continued financial support of building new coal-fired power plants in other nations.
"They're not serious about this," he says of China. "So what have we done about global greenhouse gas emissions? We've done nothing."
By contrast, Cassidy's own recipe for reducing carbon emissions, outlined last year in an op-edin The Daily Caller, calls for policies that encourage domestic manufacturing using natural gas.
Not surprisingly, natural gas is a central focus of Cassidy's climate advocacy and stems from his days as a House member, where he said he had an "epiphany" that "the EPA was setting our energy policy."
"EPA should not be setting energy policy," he said. "It should be Congress working with the president setting energy policy."
Cassidy set out to identify policies that "create jobs for the American people and meet the concerns of the left about greenhouse gas emissions" and came to the conclusion that such "common ground" exists. "It's called natural gas," he said.
Natural gas is hardly a novel solution to climate change; its role in reducing U.S. greenhouse gas emissions in recent years is frequently cited by industry and politicians to argue against regulations or carbon pricing schemes to control climate change.
The Obama administration supported natural gas as a "bridge fuel" to a cleaner energy future, while also moving to regulate hydraulic fracturing to the extent possible under federal law.
However, the relatively small carbon footprint of natural gas has long been clouded by estimates of widespread leakage of methane — a far more potent heat-trapping gas than carbon dioxide — from oil and gas operations, which critics say far outstrips any climate benefits from greater use of natural gas than coal.
"Natural gas is fools' gold," said Bill Snape, senior counsel for the Center for Biological Diversity, in an email.
"When you calculate total methane and carbon dioxide emitted from cradle to grave in natural gas production, transportation, and combustion, natural gas is no better than coal," Snape said. "Natural gas is not a viable climate mitigation strategy."
Cassidy acknowledged uncertainty over methane leakage estimates but noted that improvements in technology are reducing overall emissions.
"It's a little bit of a moving target, but fortunately, the target is moving in the right direction," he said.
He's looked to expand natural gas use in transportation, including in vehicles and shipping, and earlier this year penned a letter to the U.N. Green Climate Fund arguing that the use of natural gas in infrastructure projects in developing countries "will ensure the highest decrease in emissions for the money invested."
In March, legislation he authored to expedite small shipments of liquefied natural gas to Caribbean nations, S. 1981, passed the Energy and Natural Resources Committee on a bipartisan vote after Cassidy argued it would also support greater renewable energy development in the region by providing backup power.
"If you want to enable American job growth, you should support this legislation," Cassidy said at the time. "If you want to decrease global emissions, you should support this legislation. If you want greater renewable generation, you should support this legislation."
Supporters of the bill in committee included Angus King, the Maine independent senator known for carrying laminated cards with him explaining climate change science that he hands out to anyone who listens.
While the underlying bill is relatively minor, Cassidy said he hopes to replicate the success through ongoing conversations with other Senate Democrats.
"I'm seeing some of my Senate colleagues on the left acknowledge, 'Huh, maybe we do need natural gas. ... Wait a second, you're right; we can't have renewables unless there's fast-acting startup behind it, particularly in places where the grid isn't terribly integrated,'" he said.
Tangible progress may be incremental, but Cassidy is in it for the long haul.
"I think we have so much to do to socialize the idea that you will decrease global greenhouse gas emissions with more widespread deployment of natural gas," he conceded.GOP 'ceded' climate to Dems — Murkowski
Cassidy's quiet climate advocacy drew praise from another Republican senator who often raises the issue unprompted — Energy and Natural Resources Chairwoman Lisa Murkowski.
The Alaskan Republican senator laments the GOP's retreat on environmental protection in recent years.
"I think that for perhaps a host of different reasons, Republicans have just veered away from the discussion about climate and more broadly the environment," she said last month. "And we have ceded that as an issue to the Democrats, which I think is wrong and unfortunate."
Murkowski noted that she and Cassidy both represent energy-producing states that are already feeling the effects of climate change.
"I think it's important that we be engaged on these issues, that we are there talking about environmental change, that we are in the forefront talking about the solutions, whether it is to help a state like Louisiana or villages in Alaska that need to be moved to higher ground because of the threats that they face," she said.
Former Rep. Bob Inglis (R-S.C.), who since leaving Congress in 2010 has promoted conservative, free-market solutions to climate change, including as the executive director of republicEN, said Cassidy's advocacy on natural gas is smart.
"Will it last forever, and will it someday be replaced by better batteries and better solar? Probably so," he said last week.
"But in the meantime, it helps us reduce emissions, and it's a commodity that we can sell well from here in Louisiana," Inglis said. "So why not accomplish those objectives of increasing the wealth of my state and improving our situation with emissions?"
Inglis, who has advocated for a revenue-neutral carbon tax since he was a member of Congress, also drew a contrast between Cassidy and another Louisiana Republican, House Majority Whip Steve Scalise, who recently introduced a resolution opposing a carbon tax.
"What Cassidy's doing makes complete sense and is surely well representing the state of Louisiana," Inglis said. "And I'm wondering, what's happening with Steve?"
Yet Inglis points to Scalise's resolution as proof of the success that he and other conservatives are having in shifting GOP thinking on climate change.
"I'm not here to tell you that 'Oh, yeah, we're just on the cusp of success,'" he said. "We've got a long way to go, because ... my party is not conservative at this point.
"It's a populist nationalist party, but I'm here to predict for you that that populist nationalism will [be] found out to be snake oil," he said. "And when it is, there will be a rebirth of conservatism."
https://www.eenews.net/eedaily/2018/05/08/stories/1060081051
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EPA Rejects States' Call For Large Multi-State Ozone Nonattainment Areas
May 7, 2018 | Inside EPA
By Stuart Parker
EPA in its latest round of designations for areas attaining or violating the 2015 ozone air standard has rejected calls from some East Coast states and environmentalists to create large multi-state nonattainment areas with stricter pollution control mandates, saying states should pursue other Clean Air Act options to address ozone air transport.
But several of the mechanisms that EPA suggests states can use to claim attainment -- for example air law provisions allowing states to win the status if they can prove they would meet the ozone standard but for the impact of international emissions -- are difficult to use, and the agency has rejected states' use of them in the past.
Alongside its April 30 final listing of 51 areas in 22 states and the District of Columbia in nonattainment with the 2015 ozone national ambient air quality standard (NAAQS), EPA issued a detailed response to states' and others' comments on its proposed nonattainment areas list. The Obama EPA in 2015 tightened down the NAAQS to 70 parts per billion (ppb), from the 2008 level of 75 ppb.
In the response to comments, EPA rejects suggestions from some Northeastern and Mid-Atlantic states and environmental groups that nonattainment areas should be much larger, and even encompass multiple entire states. Currently, nonattainment areas are much smaller and do not cover large parts of several states. Connecticut, Delaware and New Jersey supported larger nonattainment zones in their comments to EPA.
While the Obama EPA similarly rejected calls for multi-state nonattainment areas, the Trump EPA has yet to propose other measures to curb the interstate air pollution that pushes up ozone levels beyond regulatory limits on the coast. EPA in the response to comments rejects various arguments for expanding nonattainment zones as not compatible with the agency's interpretation of air law language that allows designation of areas “nearby” nonattainment zones as also part of the same nonattainment zone.
Instead, EPA suggests East Coast states use other air law mechanisms specifically designed to curb interstate air pollution. These include: petitioning the agency for an enlargement of the Ozone Transport Commission (OTC) region of 12 northeastern and Mid-Atlantic states, where tougher ozone controls apply, under air law section 184; petitioning EPA to directly regulate out-of-state ozone sources causing NAAQS attainment problems under air law section 126; and relying on the Cross-State Air Pollution (CSAPR) rule emissions trading program for power plants to reduce nitrogen oxides (NOx) emissions. NOx is an ozone precursor.
But the Obama and Trump administrations have previously rejected petitions for expansion of the OTC region and for direct ozone regulation under section 126, often citing other air law mechanisms as more appropriate, leading some critics to accuse the agency of playing a “shell game” to avoid action on interstate ozone pollution.
One key difference, however, it that while the Obama EPA first crafted CSAPR to meet weaker 1997 ozone standards, then updated it to meet the 2008 standard, the Trump EPA professes no intention of crafting a similar interstate emissions rule.
Instead, current EPA air chief William Wehrum has called for a state-led approach to meeting the air law's “good neighbor” provision, which requires states to mitigate their emissions that “cause or contribute” to problems attaining or maintaining NAAQS in other states. Under the air law, states must by Oct. 1 submit state implementation plans (SIPs) showing how they will meet their good neighbor obligation for the 2015 NAAQS.
EPA's Response
EPA in the response to comments says, “EPA does not believe that creation of a larger nonattainment area to address pollution transport is the appropriate approach.”
The agency is adhering to its preference for county-based nonattainment zones, which include whole or partial counties monitoring ozone levels in violation of the NAAQS, plus whole or partial adjoining counties that contribute to those ozone levels. Forming much larger areas would contradict the air law's requirement that areas “nearby” the county monitoring nonattainment be included in that nonattainment zone, EPA says.
“We believe that broad super-regional areas go beyond this by including areas that are not necessarily 'nearby' but contribute to nonattainment through long-range transport,” EPA says, listing the various mechanisms to address such transport as the “appropriate vehicle,” despite criticisms that it has not been receptive to requests to use these options.
Several commenters called for larger or merged nonattainment areas around New York City and Philadelphia. However, a “combined New York, Philadelphia area would result in a multistate nonattainment area covering six states (Connecticut, Delaware, Maryland, New Jersey, New York, and Pennsylvania). Managing a nonattainment area with six states agencies would be unwieldly at best. Furthermore, designating this 'super-regional' area, covering two [metropolitan areas] and six states, would not necessarily result in additional emission reductions,” EPA says.
EPA also addresses a host of comments recommending that specific areas around the country be designated attainment or nonattainment. Perhaps the most high-profile dispute with a state involved Wisconsin, where state authorities pushed EPA to designate the entire state attainment with the exception of a narrow strip of land adjacent to Lake Michigan, where high “over water” ozone from the lake affects air monitors on the shore. The state also pointed to high levels of ozone from international and interstate sources as unfairly inflating its ozone readings.
“Because there are valid Federal Reference ozone monitors indicating violations of the 2015 ozone NAAQS, the [air law] requires that EPA designate as nonattainment those areas that do not meet the NAAQS, regardless of the source of high ozone levels,” EPA says. The agency rejects as unfeasible the state's suggestion of limiting nonattainment to only “narrow parcels of land near the Lake Michigan shoreline around the violating monitors,” and instead designates six partial counties nonattainment.
EPA has not, however, designated Racine County in nonattainment, despite pressure to do so from environmentalists concerned about the impacts of a proposed Foxconn computer parts manufacturing center in the county. Local GOP lawmakers and business groups lobbied EPA hard not to place the county in nonattainment, despite its proxity to the Milwaukee and Chicago nonattainment zones. A nonattainment designation could have jeopardized the Foxconn plans, by imposing draconian air permitting requirements such as a need to purchase air pollution “offsets,” supporters of the project feared.
“Waukesha, Washington, and Racine counties were not included in EPA’s intended Milwaukee nonattainment area based on monitoring data,” EPA says.
For Racine county, “EPA’s 5-factor analysis includes an evaluation of emissions; however, it does not take into consideration future projected emissions in the area of analysis. Therefore, the analysis did not consider the future emissions from the proposed Foxconn facility. These additional emissions would be addressed by the Clean Air Act’s preconstruction permitting requirements,” EPA says.
International Emissions
EPA rejects arguments from some commenters that Wisconsin should be able to take advantage of air law exemptions for international emissions under section 179B. EPA finds that provision applies only to nonattainment areas, and cannot be used to exclude them from nonattainment designation in the first place.
The agency says, “section 179B applies to designated nonattainment areas and does not provide the authority to exclude monitoring data influenced by international transport from regulatory determinations related to attainment/nonattainment, including area designations for new NAAQS. Similarly, section 179B does not provide the authority to classify an area with a lower classification than indicated by actual air quality or relax any mandatory control measures associated with the area’s classification.”
However, an area that can demonstrate it would meet NAAQS “but for” international emissions can avoid disapproval of its SIP or a finding of failure to attain NAAQS by applicable deadlines, or a “bump up” to worse nonattainment status in the event that attainment deadlines are missed.
The agency recommends that states wishing to exclude data influenced by international pollutant transport do so with a request for exemption under the exceptional events (EE) rule, which allows waivers for air data gathered during wildfires, dust storms or other events that qualify. “Transported emissions (or naturally-occurring ozone, in the case of stratospheric intrusions) from natural sources such as wildfires or stratospheric ozone intrusion could qualify for data exclusion under the Exceptional Events Rule,” EPA says.
The agency says it has taken such requests in account through the designation process wherever the event has “regulatory significance,” meaning that it would affect the outcome of the designation. “EPA has taken action on all EE demonstrations with regulatory significance submitted by states for the purpose of informing these 2015 ozone NAAQS designations,” the agency says, although it is not clear if this means all such requests have been approved.
EPA must under court order issue remaining area designations, for eight counties in metropolitan San Antonio, by July 17.
https://insideepa.com/daily-news/epa-rejects-states-call-large-multi-state-ozone-nonattainment-areas
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Industry Groups Float Economic Study Supporting HFC Deal
May 7, 2018 | Inside EPA
Two refrigeration industry trade groups are outlining the economic benefits of the United States ratifying a global deal to phase down the use of refrigerants that act as potent greenhouse gases, part of an effort to persuade the White House to embrace the agreement given uncertainty about the administration's position.
The groups sent the April analysis to the Trump administration May 3, a document they say supports ratification of the Kigali Amendment to the Montreal Protocol to limit production and consumption of hydrofluorocarbons (HFCs).
“The Kigali Amendment provides a global platform for gradual introduction and commercialization of next generation technologies in the U.S. and in the rapidly expanding global market,” the analysis says, finding that implementing the deal could boost exports by $5 billion and increase jobs by 33,000 by 2027.
The study was released by the Alliance for Responsible Atmospheric Policy and the Air-Conditioning, Heating, and Refrigeration Institute.
Much of the refrigeration and chemical industries support Kigali, as do many environmental groups, and the issue has also earned bipartisan support in Congress.
However, the Trump administration has not yet committed to submit the international pact to the Senate for ratification, and a former White House official has said EPA has been “opposed” to the deal out of concern that it might need new legislation to implement the pact.
During a February event hosted by the Hudson Institute, then-White House international energy adviser George David Banks said that before supporting the deal, “we will need to have really, really good economic information. We really want to understand in a more concrete way how this benefits U.S. companies, how it preserves and creates U.S. jobs and how it can help the trade balance.”
Banks added that economic concerns are “the lens” through which the Trump administration would view Kigali.
The new report appears directly aimed at addressing the administration's economic concerns.
“Ratification of Kigali will provide regulatory stability and long-term market information to support domestic investment in new technologies to serve both domestic and global market,” the study says.
It finds that the sector could grow from 138,000 jobs in 2016 to 195,000 in 2027 even if the U.S. does not ratify Kigali, but that implementing the deal could allow it to grow to 228,000 jobs.
Similarly, the U.S. share of the world's refrigeration-related equipment would grow from 7.2 percent in 2016 to 9 percent in 2027 under the deal, while not implementing the pact could result in the share dropping to 6.2 percent.
https://insideepa.com/daily-feed/industry-groups-float-economic-study-supporting-hfc-deal
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