Preview Newsletter
AM ACC Clips Report - August 22, 2018
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(ACC Mentioned) ACC: Chemical Tariffs Could Cause “Irreparable” Effects
Aug 21, 2018 | Powder Bulk Solids
The American Chemistry Council (ACC) warned U.S. policymakers on Monday that impacts from tariffs on chemicals and plastics imported from China may cause negative “long-term consequences” for the domestic chemicals industry that could position the Asian nation to become the world’s largest supplier of chemicals. -
(ACC Mentioned) U.S. Companies Oppose Tariffs on 1st Day of 301 Hearings
Aug 22, 2018 | ecns
By Gu Liping
On the first day of the Section 301 hearings that started Monday, U.S. companies voiced strong opposition to the Trump Administration’s plan for tariffs on an additional 200 billion U.S. dollars of Chinese goods. -
(ACC Mentioned) Ocean Pines Church Encourages Re-Use of Grocery Bags
Aug 22, 2018 | Delmarva Daily Times
By Joleen Killinger
I was pleased to hear the Shepherds Nook thrift shop at the Community Church of Ocean Pines is raising awareness to its customers about the need to reduce the use of plastic bags. -
(ACC Mentioned) Critics Charge EPA's TSCA Data Guide Mirrors Controversial Science Rule
Aug 21, 2018 | Inside EPA
By Maria Hegstad
Environmentalists and other Trump administration critics are concerned that EPA's proposed approach for how it will gather and evaluate scientific information about chemicals under the revised Toxic Substances Control Act (TSCA) mirrors its controversial science transparency plan, which they say seeks to block studies that could drive stricter rules. -
Why Asbestos Is Still a Major Public Health Threat in the U.S.
Aug 22, 2018 | EcoWatch
By Olivia Rosane
Reports surfaced this month that the U.S. Environmental Protection Agency (EPA) had proposed a significant new use rule (SNUR) for asbestos in June, requiring anyone who wanted to start or resume importing or manufacturing the carcinogenic mineral to first receive EPA approval. -
Science Board Backs North Carolina's GenX Health Goal
Aug 21, 2018 | Inside EPA
North Carolina's science advisory board is endorsing the state health department's drinking water health goal and reference dose for GenX, the perfluorinated chemical, setting a marker for EPA just weeks before the agency is slated to unveil its own toxicity value. -
BASF Fined $142,000 for Excessive Chemical Gas Emissions in Texas
Aug 21, 2018 | BNA Daily Environment Report
By Karn Dhingra
German chemicals giant BASF SE is facing $142,063 in fines by the Texas Commission on Environmental Quality for emitting gases from chemicals used to make acrylic acid. -
Industry Prioritises Microplastics for Chemical Risk Research Funding
Aug 22, 2018 | Chemical Watch
Microplastics feature prominently in this year's call for project proposals from the main European source of industry funding for research into the risks of chemicals. -
Swedish PFAS Reporting Obligation Due in 2019
Aug 22, 2018 | Chemical Watch
Companies in Sweden must start providing information on the presence of per- and polyfluoroalkyl substances (PFAS) when notifying products to the national products register from 1 January 2019. -
Denmark Prepares Tenders for Substitution Programme
Aug 22, 2018 | Chemical Watch
The Danish EPA is preparing to launch tenders for a substitution project to be conducted under the joint chemicals initiative which began this year and runs to 2021. -
(ACC Mentioned) Canada's Ultra-Cheap Natural Gas Drives Hopes of Petrochemical Boom
Aug 22, 2018 | Reuters
By Rod Nickel
Canada’s gas-rich province of Alberta is looking to recreate the building boom spreading along the U.S. Gulf Coast, where inexpensive natural gas generated billions of dollars in investment by petrochemical companies. -
(ACC Mentioned) UK Fracking Push Could Fuel Global Plastics Crisis, Say Campaigners
Aug 22, 2018 | The Guardian
By Matthew Taylor
The push for a large-scale fracking operation in England will fuel the global plastic crisis and undermines the government’s claims that it is tackling the issue, according to a leading charity. -
Republicans Push FERC for Export Details
Aug 22, 2018 | E&E Energywire
By Hannah Northey
Republican senators on two key energy committees are pushing the nation's top energy regulator for more information about the status and timing of a series of liquefied natural gas export projects. -
Another Appeal Filed on FERC's Penn East Approval
Aug 22, 2018 | E&E Energywire
By Saqib Rahim
New Jersey's ratepayer advocate has asked a federal appeals court to review the approval of the PennEast pipeline, in the latest legal move to impede the 120-mile Pennsylvania-to-Jersey gas project. -
The Next Big Bet in Fracking: Water
Aug 22, 2018 | The Wall Street Journal
By Christopher M. Matthews
Some investors see fortunes to be made in the U.S.’s hottest oil field—by speculating in water, not crude. -
Appellate Decision Sets High Bar For Trump EPA Effort To Revise RMP Rule
Aug 21, 2018 | Inside EPA
By Dave Reynolds
Environmentalists and industry attorneys say the appellate court ruling vacating the Trump administration's delay of the Obama-era facility safety rule sets a high bar for EPA's ongoing effort to revise the regulation, given the judges' emphasis on EPA's Clean Air Act duty to prevent disasters and failure to show the delay was consistent with increased safety. -
Court’s Blow to EPA Delay of Chemical Plant Safety Rules Sows Confusion
Aug 22, 2018 | BNA Daily Environment Report
By Sam Pearson
Trump administration legal efforts may unintentionally resurrect Obama-era chemical facility safety rules, even though companies thought the rules would be killed off. -
Southern Co. CEO Warns Federal Cyber Rules 'Are Not Enough'
Aug 22, 2018 | E&E Daily
By Christa Marshall
Southern Co. CEO Tom Fanning warned Senate lawmakers yesterday that federal cyber standards for the power sector "are not enough" to protect against dangerous attacks on the grid and electricity system. -
New Power Plant Proposal Sidesteps Issues Kavanaugh Raised
Aug 21, 2018 | BNA Daily Environment Report
By Fatima Hussein
Supreme Court nominee Brett Kavanaugh was skeptical of the Obama EPA’s broad attempt to regulate carbon dioxide from the power sector, but the Trump administration’s narrower replacement does not seem to raise the same legal questions. -
EPA's 'Affordable Clean Energy' Rule Gives States Broad Discretion On GHGs
Aug 21, 2018 | Inside EPA
By Dawn Reeves
The Trump EPA's long-awaited proposal to replace the Obama-era Clean Power Plan (CPP), the Affordable Clean Energy (ACE) rule, does not set an overall greenhouse gas reduction limit or emissions rate for power plants, instead granting broad discretion to states to set GHG limits at individual plants based on an assessment of what can be achieved at each facility. -
EPA Details ACE Rule's Emissions, Cost Increases, Bolstering Critics
Aug 21, 2018 | Inside EPA
By Dawn Reeves
Critics of EPA's newly proposed Affordable Clean Energy (ACE) rule to cut power sector greenhouse gases, offered as a narrower replacement to the Obama-era Clean Power Plan (CPP), are citing the agency's own analyses showing increased emissions and costs to highlight what they say are deep flaws that will make the rule vulnerable in court. -
Narrower EPA Power Plan Leaves Emissions Trading Up in Air
Aug 21, 2018 | BNA Daily Environment Report
By Abby Smith
The EPA proposal to replace Obama-era power sector carbon controls leaves state regulators and utilities with unanswered questions about whether they can use emissions trading to comply with the new Trump administration plan. -
Refiners, Manufacturers Back Air Permit Changes for Power Plants
Aug 21, 2018 | BNA Daily Environment Report
By Abby Smith and Amena H. Saiyid
Oil and gas refiners and manufacturers are backing an EPA-proposed change to air pollution permitting—which now is aimed only at power plants—in hopes it will eventually extend to their sectors. -
Climate Rule Litigation: Here We Go Again?
Aug 22, 2018 | E&E Energywire
By Ellen M. Gilmer
New legal battles are already brewing over EPA's plans to replace former President Obama's landmark Clean Power Plan with a drastically scaled-back effort to cut carbon emissions from the power sector. -
Power Plant Emissions Proposal Relies on Science EPA Wants to Shun
Aug 22, 2018 | BNA Daily Environment Report
By Eric Roston
The Environmental Protection Agency’s proposal to loosen power-plant regulations relies in part on scientific studies that the agency itself is trying to exclude from rulemaking. -
7 Takeaways from EPA’s Proposed Coal Pollution Rule
Aug 22, 2018 | PoliticoPro
By Alex Guillen
The Trump administration’s proposed carbon rule for coal plants ratchets back the scope and emissions reductions of the Obama administration’s original rule while questioning EPA’s ability to take more stringent action on climate change. -
Future President Could Re-Enter Paris Pact Without Carbon Rule
Aug 22, 2018 | E&E Climatewire
By Jean Chemnick
Yesterday's move by the Trump administration to scrap President Obama's premier climate rule wouldn't make it harder for a future administration to rejoin the Paris Agreement. -
Grasping for Straws in California May Get Harder as Bill Proceeds
Aug 21, 2018 | BNA Daily Environment Report
By Emily C. Dooley
California restaurant owners face fines of up to $300 for handing out single-use plastic straws, unless customers specifically request, them under a bill passed by the state’s Senate.
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(ACC Mentioned) ACC: Chemical Tariffs Could Cause “Irreparable” Effects
Aug 21, 2018 | Powder Bulk Solids
The American Chemistry Council (ACC) warned U.S. policymakers on Monday that impacts from tariffs on chemicals and plastics imported from China may cause negative “long-term consequences” for the domestic chemicals industry that could position the Asian nation to become the world’s largest supplier of chemicals.
Calling on President Donald J. Trump’s administration to remove 1505 chemicals and plastics from its “List 3” of tariffs, and 152 chemicals from “List 2,” the organization maintains that the measures would cause prices to go up for U.S. chemicals firms and end-users of U.S.-made chemical products like manufacturers and agricultural producers.
“If tariffs on the $2.2 billion in chemicals and plastics imports that appeared on List 2 would weaken the competitiveness of the U.S. chemicals industry, then the $16.4 billion in tariffs on additional products of chemistry in List 3 would have potentially irreparable impact on our industry’s economic structure and supply chain,” ACC Director of International Trade Ed Brzytwa said in a press release. “We reiterate, in the strongest possible terms: the best way to preserve the interests of the U.S. chemicals industry and indeed the entire manufacturing sector is by removing chemicals from the front lines of this trade war.”
Brzytwa testified at a July 25 hearing held by the Office of the U.S. Trade Representative on the tariffs that the Trump administration’s actions could negatively impact U.S. manufacturers by interrupting regular supply chains for chemicals and plastics products.
“Supply chains are not plug-and-play – they cannot easily be reconfigured to meet the whims of U.S. trade policy,” Brzytwa said. “Supply chains do not exist in a vacuum but move with the ebb and flow of market forces. They are complex and intricate and rely on interconnected networks and channels that work together as one to bring finished products to market. Forcing companies to reconfigure their supply chains would threaten the viability of their businesses.”
The organization urged the Trump administration to work with “like-minded Allies” to reconcile its differences with China instead of waging a trade war.
https://www.powderbulksolids.com/news/ACC-Chemical-Tariffs-Could-Cause-Irreparable-Effects-08-21-2018
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(ACC Mentioned) U.S. Companies Oppose Tariffs on 1st Day of 301 Hearings
Aug 22, 2018 | ecns
By Gu Liping
On the first day of the Section 301 hearings that started Monday, U.S. companies voiced strong opposition to the Trump Administration’s plan for tariffs on an additional 200 billion U.S. dollars of Chinese goods.
The hearings, which will last six days in total, have brought 358 representatives from many different companies, industries and associations to express their concerns about the U.S. government’s tariff plan, which has been proposed in the name of protecting the interests of domestic companies.
A CCTV reporter on site has witnessed many more opponents than supporters to the tariff plan, and one of the most frequently mentioned word by the representatives was “irreparable”, which they used to describe the economic losses their companies would suffer if the tariffs go into effect.
Many companies said they have to make large-scale layoffs to cut their costs.
“We are very concerned that if another 25 percent tariff go into effect, that will place enormous burden on the small businesses on the United States,” Tony Abd, president of the American Electronic Cigarette Association, told CCTV.
“The e-cigarette technology was invented in China in 2003, and many of the developments and innovations in that technology occurred in China. So the risk of technology transfer from the United States to China is very low,” he said.
Stephen Lamar, vice president of the American Apparel and Footwear Association, said that U.S. companies are paying a 25 percent tax on yarns and textiles exported to China. Then the final products they import back will be subject to another 25 percent tariff.
“We think there is an opportunity for the U.S. and China to come together to address these concerns about intellectual property and technology transfer, but not through tariffs,” he said.
Representatives from U.S. chemical industry also expressed deep concerns. Ed Brutva, director of the International Trade of American Chemistry Council, estimated there will be about 24,000 job losses in the chemical and affiliated industries from the initial 50 billion U.S. dollar tariff on Chinese goods.
“We’ve encouraged them (the Section 301 Commission) to negotiate with China, not just to throw up a tariff war, going tit-for-tat,” he added.
http://www.ecns.cn/business/2018-08-22/detail-ifyxikfc9638841.shtml
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(ACC Mentioned) Ocean Pines Church Encourages Re-Use of Grocery Bags
Aug 22, 2018 | Delmarva Daily Times
By Joleen Killinger
I was pleased to hear the Shepherds Nook thrift shop at the Community Church of Ocean Pines is raising awareness to its customers about the need to reduce the use of plastic bags.
A flyer is being given to customers encouraging them to bring their own recycled bags to hold their purchases.
There is an ever-increasing amount of plastic bags — both on land and in the ocean — polluting the environment.
The American Chemistry Council estimated 8 million tons of plastic enters our ocean every year.
Plastic bags cannot be recycled in curbside bins; however, they can be taken to grocery store bins.
With this additional step, the church is trying to improve our environmental footprint.
https://www.delmarvanow.com/story/opinion/readers/2018/08/22/ocean-pines-church-encourages-re-use-grocery-bags/1050600002/
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(ACC Mentioned) Critics Charge EPA's TSCA Data Guide Mirrors Controversial Science Rule
Aug 21, 2018 | Inside EPA
By Maria Hegstad
Environmentalists and other Trump administration critics are concerned that EPA's proposed approach for how it will gather and evaluate scientific information about chemicals under the revised Toxic Substances Control Act (TSCA) mirrors its controversial science transparency plan, which they say seeks to block studies that could drive stricter rules.
“The TSCA method’s arbitrary, unscientific scoring and exclusion of studies is right in line with other attempts to restrict the science EPA relies on, such as the recent 'censored science' proposal from former Administrator [Scott] Pruitt,” write researchers with the University of California San Francisco's Program on Reproductive Health and the Environment (PRHE) in an Aug. 17 blog.
Other critics go even further, with Environmental Defense Fund (EDF) warning in Aug. 16 comments that the so-called systematic review framework could be vulnerable to legal challenges, though EPA says the document is not a final action subject to judicial review.
The framework, particularly EPA's scoring approach to assessing study quality, “will lead to violations of EPA’s science obligations under TSCA [sections] 26(h), (i), and (k),” EDF says.
Those sections of the law “require that EPA must consider all reasonably available information, and that EPA then must make decisions reflecting the 'best available science' and 'weight of the scientific evidence' based on the body of evidence as a whole."
But EDF says that the systematic review approach “erroneously tries to apply these directives at the level of individual studies, and the result is that EPA may exclude . . . information on the grounds that an individual piece of evidence is somehow imperfect, even when it contributes to the 'best available science' or adds to the 'weight of the scientific evidence' when available information is considered as a whole.”
Even the chemical industry reacted tepidly to the document, though its officials indicated the measure did not go far enough. The American Chemistry Council (ACC) said in its Aug. 16 comments that while it welcomed the agency's effort, it noted that there are “critical concepts and methodologies that remain to be discussed or fully developed."
ACC urged EPA to “re-issue the systematic review document with updates and allow for additional review and stakeholder feedback” after developing the approach further while evaluating the first 10 chemicals slated for review.
Systematic review is an approach adapted from evidence-based medicine reviews, which seeks to provide a structured and documented process for transparent literature review and evaluation of the totality of information.
EPA released its systematic review guidance for considering studies on existing chemicals -- those that were in commerce before the TSCA law was first adopted in 1976 -- earlier this year, though the agency says it is a “living document” that may be revised periodically.
The guidance generally lays out a multi-part process for gathering and assessing relevant data, and eventually integrating the data into any risk evaluation -- the basis for possible future regulatory actions.
“Ultimately, the goal is to establish an efficient systematic review process that generates high-quality, fit-for-purpose risk evaluations that rely on the best available science and the weight of the scientific evidence within the context of TSCA,” the guidance says.
While the toxics office accepted comments on the framework through Aug. 16, it acknowledges that it is using the framework to assess the first 10 chemicals that it is now evaluating now, as directed by Congress' 2016 reform of TSCA.
'Ad Hoc, Incomplete'
One environmentalist tells Inside EPA that systematic review specialists “are really up in arms about this scoring system for study quality. ... It works against epidemiology studies, academic studies, and seems to reward these [Good Laboratory Practices] by the book studies that industry does.”
“The really scary thing about the systematic review [guide] is they are using that in real time right now, and they are going through all of the studies on these 10 chemicals and scoring them for quality and deciding which of these studies to kick out, which to give little weight to and which to emphasize,” the source adds.
And the PRHE researchers, who are among the early adapters of systematic review to evaluate environmental health topics, charge that “instead of ensuring a comprehensive, unbiased evaluation, like a systematic review is supposed to do, the TSCA method will severely narrow the science the Agency considers, leading to poor decisions and putting the public’s health at risk,” write PRHE Director Tracey Woodruff, a former EPA scientist, and Veena Singla, associate director of the program.
They add that the agency's TSCA approach creates a “serious concern . . . [that] will result in relevant, high-quality studies being excluded from the Agency’s consideration.”
PRHE, whose researchers have published a systematic review method for environmental health topics, also describe the agency's method as “incomplete,” in its blog, argues that EPA's approach covers just two of nine steps in systematic review.
“An especially critical missing step is 'Develop protocols for systematic review' which must occur prior to identifying and evaluating the evidence to ensure an unbiased review. Further, EPA’s regulation for risk evaluations also requires this -- it mandates that the Agency use 'a pre-established protocol' to conduct assessments.”
In their Aug. 16 comments, which are joined by scores of academics and clinicians, the university scientists detail their concerns, describing EPA's systematic review approach as “ad hoc, incomplete, and does not follow established methods for systematic review that are based on the best available science."
Instead, they recommend that EPA implement an approach that is consistent with “empirically based existing methods and aligns with the Institute of Medicine’s definition of a systematic review, including but not limited to, using explicit and pre-specified scientific methods for every step of the review."
They urge EPA to look at examples that have been endorsed by the National Academy of Sciences (NAS) such as the National Toxicology Program's (NTP) approach or their own Navigation Guide. They also urge EPA to seek peer review of the approach.
More fundamentally, they question the appropriateness of the toxics office developing the approach and using it to analyze chemicals that the same office will regulate. They recommend that “EPA’s TSCA systematic reviews should be produced independently of the regulatory end user of the review.”
Quantitative Scoring
PRHE also questions EPA's decision to incorporate a quantitative scoring method for describing study quality and reliability in the approach -- the means by which the approach narrows studies to be considered in analyses. While praised by some in industry as a way to elevate higher quality studies before assessments commence, the PRHE team says a scoring approach is “incompatible with the best available science in fundamental ways” because the scores are “arbitrary and not science-based,” and are at odds with NAS recommendations.
In addition, the group says EPA’s method for scoring studies “wrongly conflates how well a study is reported with how well the underlying research was conducted.” EPA’s scoring method also excludes research based on one single reporting or methodological limitation, they add.
As such, PRHE urges EPA to drop the scoring method and “employ a scientifically valid method to assess risk of bias of individual studies.”
PRHE also argues that “EPA’s TSCA systematic review framework does not consider financial conflicts of interest as a potential source of bias in research” and it should do so. The call has been controversial during the development of EPA research office's systematic review approach, as well as NTP's, with industry representatives arguing strongly against such an approach, and environmentalists backing it.
https://insideepa.com/daily-news/critics-charge-epas-tsca-data-guide-mirrors-controversial-science-rule
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Why Asbestos Is Still a Major Public Health Threat in the U.S.
Aug 22, 2018 | EcoWatch
By Olivia Rosane
Reports surfaced this month that the U.S. Environmental Protection Agency (EPA) had proposed a significant new use rule (SNUR) for asbestos in June, requiring anyone who wanted to start or resume importing or manufacturing the carcinogenic mineral to first receive EPA approval.
Advocates and some EPA employees raised concerns that the SNUR could pave the way for expanded asbestos use in the U.S., while agency spokespeople maintained the new rule would help the agency better regulate the material that different studies estimate kills between 12,000 and 39,275 Americans a year. But beyond that dispute lay a broader question: Why isn't asbestos banned in the U.S. altogether?
Sixty-five countries currently ban the fibrous mineral that was once widely used as an insulator and flame retardant in buildings, but the U.S. still is not one of them.
"I think there is … a misunderstanding or a misperception that the asbestos problem has been taken care of, that asbestos is banned, which it isn't," Dr. Celeste Monforton, a public health expert who worked for the Department of Labor's Occupational Safety and Health Administration (OSHA) and Mine Safety and Health Administration (MSHA) during the Bush Sr., Clinton and Bush Jr. administrations and now works at George Washington University, said in an interview.
"It's really something that the general public, and I even think lawmakers and policy makers, think is a problem of the past," she said.
Linda Reinstein is one ordinary American who learned the hard way that the threat of asbestos is very much current.
In 2003, her husband Alan was diagnosed with mesothelioma, an incurable cancer of the lining of internal organs, most often the lungs, that is linked to asbestos exposure.
"The more I searched for care and treatment options, the more angry I became because I knew that this was a man-made disaster," Reinstein said.
In 2004, she co-founded the Asbestos Disease Awareness Organization (ADAO) with Doug Larkin, whose father-in-law was also sick, and joined a long-running fight against asbestos.
The health effects of asbestos exposure were documented over a century ago, but even as the public health consensus grew, more than 700,000 tons a year were being consumed in the U.S. by the 1960s and 70s, according to a paper in the International Journal of Environmental Research and Public Health. Because of regulations and lawsuits since the 1970s, its use fell to 14,600 tons by 2000 and 343 tons a year by 2015 for use by the chlor-alkali industry, the only U.S. industry that currently imports asbestos.
In 1973, 1975 and 1978, the EPA issued bans on specific uses of asbestos in spray-fireproofing, certain kinds of insulation and all spray applications, respectively. But its attempt to ban most uses of asbestos entirely in 1989 under section six of the 1976 Toxic Substances Control Act (TSCA) was overturned by a court decision in 1991.
The judge ruled, in part, that the EPA had not adequately considered other regulatory options short of a ban and had not assessed the danger of possible replacements, The New York Times reported at the time.
Monforton said the ruling chilled further attempts by the EPA to issue a blanket ban.
"When an agency has an adverse decision from the courts on a regulation it took it many years to do, it is very obverse to doing that again," Monforton said.
Meanwhile, public health advocates like Reinstein began to work on changing the law to make it easier for the EPA to ban asbestos and other toxic chemicals. ADAO joined with 450 other non-profits in a 10-year push to amend TCSA. During the campaign, asbestos was used as the "poster child" for why the amendment was needed, Reinstein said.
The amendment, the Frank R. Lautenberg Chemical Safety for the 21st Century Act, finally passed in 2016. It required the EPA to conduct safety reviews of chemicals currently on the market, as well as any new chemicals. It also empowered the agency to regulate chemicals based exclusively on their health and environmental risks and removed the need for it to choose the "least burdensome" regulations for industry, according to the Mesothelioma and Asbestos Awareness Center (MAAC).
When former President Barack Obama signed it into law, he even said, "The system was so complex, it was so burdensome, that our country hasn't even been able to uphold a ban on asbestos, a known carcinogen that kills as many as 10,000 Americans every year."
Advocates like Reinstein worked hard to get asbestos added to the list of the first 10 chemicals to be assessed under the new amendment. A full ban was finally on the horizon.
"Or so we thought," Reinstein said.
'Complete Missed Opportunity'
In 2016, less than five months after Obama's speech, Donald Trump was elected president.
"He has been the perfect storm for NGOs, environmentalists, public health because he's so close with industry," Reinstein said.
Former chemical industry lobbyists like Nancy Beck now had jobs at the EPA.
When the agency published the initial scoping documents for the first 10 chemicals to be assessed under the amendment in June 2017, it revealed that the assessment would not consider the health risk posed by the millions of tons of asbestos still left in homes and other buildings before its use was widely phased out of construction, which is the current greatest health risk asbestos poses to U.S. residents.
For Monforton, that decision represented a "complete missed opportunity."
"From a public health perspective, one of the important first steps is really having an understanding of the hazard and where it exists, because you can't make decisions about addressing the risk unless you know the magnitude of the problem," she said.
Monforton suspected that policy makers are afraid to conduct that analysis because the problem is so huge. Quantifying it would force them to either fix it or state outright that they weren't willing to do anything about it. She also thought that attitude was also behind pre-Trump failures to act.
"I cannot say that if we had a different administration that they would be opening up that whole can of worms," she said.
But if previous administrations have stuck their heads in the sand, Trump is different in that he praises asbestos with eyes wide open.
In 2012, for example, he tweeted that the use of asbestos would have prevented the World Trade Center from collapsing. His love for asbestos is so well known that a Russian asbestos company packed its product in plastic wrap stamped with his image.
Reinstein is worried the administration will continue ignoring asbestos already present in older buildings, continue granting an exception to the chlor-alkali industry to import it and use the SNUR to allow new uses while passing that limited action off as a full ban.
"If the EPA gets away with this, to me, the EPA's getting away with murder," she said.
Dr. Raja Flores, the Chairman for the Department of Thoracic Surgery at Mount Sinai Medical Center, who has been treating mesothelioma for more than 20 years, agreed.
"If they spent one day with me in my clinic and they saw the patients, if they came with me into my operating room and saw the damage that this is doing on the inside, if they had any heart at all, they would ban it," he said.
What's Next?
The EPA has not actually done the limited risk evaluation that would lead to a decision to ban new uses of asbestos or not, but in the meantime Reinstein and others are also pursuing other avenues.
Bills to ban asbestos have been introduced to Congress since Democratic Senator Patty Murray first introduced the Ban Asbestos in America Act in 2002, though none has been signed into law, according to MAAC.
The most recent attempt is the Alan Reinstein Ban Asbestos Now Act, named for Reinstein's late husband, which was introduced by Oregon Democrats Senator Jeff Merkley and Congresswoman Suzanne Bonamici in November 2017 and February of this year, respectively.
"Asbestos is dangerous and more than 50 countries around the world have banned it—for good reason," Bonamici said in an email. "Instead of joining them, the Trump administration is ignoring science and proposing to allow new uses of asbestos. That's unacceptable and takes us in the wrong direction. Congressional leaders must stand up and demand that the EPA follow its mission to protect public health and the environment. Lives are at stake."
Bonamici said she was working to build bipartisan support for the bill but so far had no Republican co-sponsors.
In the meantime, Flores and Monforton urged people to be aware of the possibility of asbestos exposure when pre-1970 buildings in their neighborhoods are disturbed due to construction or extreme weather and to make sure appropriate action has been taken to keep workers and residents safe.
"Whenever there's a construction site out there and you're being exposed to it, whether it's at work or at home or even on the street, you need to make sure that they've looked for asbestos," Flores said.
https://www.ecowatch.com/asbestos-us-epa-trump-2597804155.html
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Science Board Backs North Carolina's GenX Health Goal
Aug 21, 2018 | Inside EPA
North Carolina's science advisory board is endorsing the state health department's drinking water health goal and reference dose for GenX, the perfluorinated chemical, setting a marker for EPA just weeks before the agency is slated to unveil its own toxicity value.
North Carolina's science board Aug. 20 announced its findings endorsing the North Carolina Department of Health and Human Services' (DHHS) drinking water health goal of 140 parts per trillion (ppt), much more stringent than a health goal of 70,000 ppt proposed by the chemical's manufacturer, Chemours Co., the Associated Press (AP) reported.
While the board endorsed the values, it also advised that its recommendations be reviewed within three years to ensure health protection in light of ongoing research on the chemical world-wide.
GenX, a per- and polyfluoroalkyl substance (PFAS), has been used by manufacturers as a replacement for older PFAS, such as perfluorooctanoic acid (PFOA), that have been phased out. PFAS, some of which have been linked to adverse health effects including certain cancers, ulcerative colitis and thyroid disease, are comprised of thousands of perfluorinated chemicals known for their non-stick qualities used in a variety of commercial and industrial applications but are now raising alarm bells among communities across the country for their presence in drinking water systems.
In a new report, the science advisory board to DHHS and the state's Department of Environmental Quality (DEQ) notes GenX is an “emerging hazard” for which new studies are ongoing, but says it finds “the available evidence is adequate to inform the adoption of the [state's] reference dose and the provisional health goal.” The board “commends” the reference dose of 1x10^-4 milligram/kilogram/day “by DHHS to DEQ as the foundation for establishing health-protective environmental standards."
“As additional validated studies to address long-term exposure concerns become . . . available for GenX and other PFAS, this value should be re-evaluated and modified as needed to protect sensitive populations and the environment,” the board says in the report.
The AP reports that the state's provisional health goal cannot be enforced because it was not adopted through the process for setting enforceable limits. “The state health agency set the GenX mark for drinking water 'using the best available science as federal and state standards were not available,' spokeswoman Kelly Haight said Monday,” according to the AP story.
In North Carolina, citizens have fought Chemours' releases of GenX into the environment, pressing the state into action. The chemical has been found in the Cape Fear River, a source of drinking water for four counties in the state. Chemours manufactures the substance at a facility near Fayetteville, where concerns about levels of runoff and air emissions from the facility have led to monitoring and other actions from the state's environmental regulator.
A national coalition of citizens groups has called for regulators to set a 1 ppt level for combined PFAS in drinking water, much lower than existing health advisory levels for any PFAS.
Chemours did not respond by press time for comment on the board's report.
https://insideepa.com/daily-feed/science-board-backs-north-carolinas-genx-health-goal
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BASF Fined $142,000 for Excessive Chemical Gas Emissions in Texas
Aug 21, 2018 | BNA Daily Environment Report
By Karn Dhingra
German chemicals giant BASF SE is facing $142,063 in fines by the Texas Commission on Environmental Quality for emitting gases from chemicals used to make acrylic acid.
In addition to the fine, commission members will consider an enforcement order requiring BASF to submit an action plan to address the emission of 66,878 pounds of chemicals during an eight-month stretch at the company’s Freeport, Texas, plant near Houston.
From Sept. 25, 2015, to July 11, 2016, investigators found BASF’s plant leaked acrolein, acrylic acid, formaldehyde, propane, and propylene. Exposure to some of these chemicals can be harmful, according to the Environmental Protection Agency. Formaldehyde, for example, can irritate the skin, eyes, nose, and throat, and sufficient levels of exposure may cause some types of cancers.
The leaks were caused by damage to the heat exchanger at BASF’s plant, according to TCEQ’s investigation report. The heat exchanger incinerates a gas that is a byproduct from the oxidation of propylene to produce acrylic acid.
BASF first reported the incident on July 14, 2016. The company could have identified the leak when the company shut down the plant for cleaning in April 2016, according to the report.
Commissioners will consider the enforcement order at their Aug. 22 meeting, where they will vote to approve or reject the fine and proposed remedies, remand the order without voting on it, or to continue the item to a future agenda, an agency spokesperson told Bloomberg Environment.
“BASF worked with TCEQ to reach an agreement on findings related to an extended release from the Freeport site’s Acrylic Acid Ester unit,” Cindy Suggs, community and government affairs manager at BASF’s Freeport, Texas plant, said in an email to Bloomberg Environment. “Upon noting higher-than-expected releases of two chemical compounds, BASF immediately shut down the incinerator (and associated heat exchanger) and reported the initial findings to the TCEQ.”
BASF has also installed monitoring technology to ensure a similar incident will not occur in the future, Suggs added.
https://news.bloombergenvironment.com/environment-and-energy/basf-fined-142-000-for-excessive-chemical-gas-emissions-in-texas
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Industry Prioritises Microplastics for Chemical Risk Research Funding
Aug 22, 2018 | Chemical Watch
Microplastics feature prominently in this year's call for project proposals from the main European source of industry funding for research into the risks of chemicals.
Two of the seven areas selected by the European Chemical Industry Council (Cefic) Long-range Research Initiative (LRI) deal with the materials. They are:ECO48, to develop fate and transport models for microplastics in the aquatic environment (€200,000 over two years); andECO49, to evaluate factors that determine the environmental hazards of microplastics (€400,000 over three years).
The others areas are:ECO47, to improve IVIVE extrapolation models to predict bioconcentration using in vitrobiotransformation rates for bioaccumulation assessment in fish (€300,000 over two years);ECO50, to assess spatial and temporal variability in species assemblages and potential implications for chemical risk assessments (€400,000 over three years);EMSG59, species comparison in liver-mediated thyroid and thyroid-related toxicities (€600,000 over 18 months);C7, metabolic capacity of the gut microbiome (€575,000 over three years); andB21, to develop and parameterise PBPK models for inhalation exposure (€300,000 over 2.5 years).
Interested parties have until 2 September to submit proposals.
https://chemicalwatch.com/69887/industry-prioritises-microplastics-for-chemical-risk-research-funding
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Swedish PFAS Reporting Obligation Due in 2019
Aug 22, 2018 | Chemical Watch
Companies in Sweden must start providing information on the presence of per- and polyfluoroalkyl substances (PFAS) when notifying products to the national products register from 1 January 2019.
From that date, as per the amended regulation, they will have until the end of February 2020 to notify the manufactured quantities for the previous year, the Swedish chemicals agency, Kemi, said.
The notification of a new product is made once and the company then is obliged to advise the quantities manufactured or sold on a yearly basis.
Companies with annual sales under SEK5m (€474,803) will be exempt from the requirement.
Previously, companies had to provide information on all substances present at levels above 5%, with substances classified as hazardous reported regardless of the level of exposure.
As PFAS are often found in concentrations below 5% – and most of the substances are currently not assessed in terms of hazard – few companies have been obliged to notify the register.
The proposed amended regulation means that companies must also state whether the products contain deliberately added PFAS. This should apply regardless of level but actual content will not be reported, Kemi said.
PFAS are extremely difficult to break down and have contaminated drinking water in several places in Sweden. The amended regulation aims to increase knowledge of how PFAS are used. More information on this makes it easier to assess potential measures to protect human health and the environment, it said.
https://chemicalwatch.com/69882/swedish-pfas-reporting-obligation-due-in-2019
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Denmark Prepares Tenders for Substitution Programme
Aug 22, 2018 | Chemical Watch
The Danish EPA is preparing to launch tenders for a substitution project to be conducted under the joint chemicals initiative which began this year and runs to 2021.
The chosen stakeholders – whether it is a company or an institution – will collaborate with the EPA on innovative ideas on the substitution of harmful chemical substances.
The tender is expected to be announced on the procurement portal TenderKonnect in September.
In 2014, the environment ministry provided 13.5m DKK (€1.8m) in funding over four years to help SMEs work with university researchers and consultants on replacing substances of concern in their products.
https://chemicalwatch.com/69881/denmark-prepares-tenders-for-substitution-programme
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(ACC Mentioned) Canada's Ultra-Cheap Natural Gas Drives Hopes of Petrochemical Boom
Aug 22, 2018 | Reuters
By Rod Nickel
Canada’s gas-rich province of Alberta is looking to recreate the building boom spreading along the U.S. Gulf Coast, where inexpensive natural gas generated billions of dollars in investment by petrochemical companies.
The adoption by drillers of fracking technology to unlock oil and gas from shale rock expanded U.S. production dramatically starting a decade ago. That abundance has generated $194 billion since 2010 in announced capital investment to build or expand U.S. chemical plants that use gas to make plastics, fertilizer and fuel, according to the American Chemistry Council.
Alberta hopes to do the same thing, turning prices that are about one-third those at the U.S. Gulf Coast into a competitive advantage to attract petrochemical companies. Such investment would provide a badly needed market for oil and gas within the landlocked province, where energy companies struggle to reach buyers farther away.
Alberta in 2016 launched incentives to diversify its oil-based economy. Two projects, including Inter Pipeline Ltd’s (IPL.TO) planned C$3.5 billion ($2.7 billion) petrochemical plant near Edmonton, have been approved to share C$500 million in royalty credits.
Alberta solicited bids for a second subsidy round in June.
“They’re getting all kinds of expressions of interests,” David Podruzny, vice-president of business and economics at the Chemical Industry Association of Canada, said in an interview.
As attractive as cheap gas is, skeptics say Alberta’s incentives fall short of those in the U.S. Gulf, and the province also has the disadvantages of higher costs and inadequate infrastructure.
But companies are chasing opportunities even without government help.
CF Industries Holdings Inc (CF.N) is boosting ammonia fertilizer production by 150,000 short tons annually at its Medicine Hat, Alberta, plant starting later this year. The lower cost allows it to ship farther than usual, to farmers in the corn-growing U.S. state of Iowa.
“At times it’s free,” said Bert Frost, CF’s senior vice-president of sales, of Alberta’s gas. “We have the lowest-cost gas in the world today.”
Fertilizer producer Nutrien Ltd (NTR.TO) has begun analyzing a potential expansion in Alberta, Chief Executive Chuck Magro said. He expects the abundance of cheap gas to persist, even if the $40 billion LNG Canada terminal for liquefied natural gas is built in coming years, creating a new export outlet.
“Our analysis is you would need to build several (LNG terminals) before we would see much higher gas prices,” he said in an interview this month. “I’m quite bearish for natural gas in Western Canada for the foreseeable future.”
Methanex Corp (MX.TO), which makes a liquid chemical called methanol, is considering a second plant in Medicine Hat, said Paul Daoust, vice-president for North America.
Canada is the world’s fifth-largest gas producer, but much of the gas it used to sell into the Northeastern United States has been displaced by expanding U.S. supplies.
An incentive program spanning up to a decade and competitive with what is available along the U.S. Gulf Coast is necessary to offset Alberta’s higher capital costs, said Lori Kent, executive director of Resource Diversification Council.
Insufficient pipeline infrastructure is also holding the province back, said John Rogers, senior vice-president at credit ratings agency Moody’s.
Low prices have been a hardship for gas producers, and prolonged weakness could force them to reduce supplies.
Crew Energy Inc (CR.TO) has already shut in dry gas wells this year, said Chief Executive Dale Shwed.
“If companies are not going to make money producing gas and selling it, they’re not going to drill for it,” Shwed said.
https://www.reuters.com/article/us-canada-natural-gas-analysis/canadas-ultra-cheap-natural-gas-drives-hopes-of-petrochemical-boom-idUSKCN1L713E
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(ACC Mentioned) UK Fracking Push Could Fuel Global Plastics Crisis, Say Campaigners
Aug 22, 2018 | The Guardian
By Matthew Taylor
The push for a large-scale fracking operation in England will fuel the global plastic crisis and undermines the government’s claims that it is tackling the issue, according to a leading charity.
The Campaign to Protect Rural England (CPRE) says fracking will not only destroy large areas of the countryside, it will exacerbate the global plastic binge which is already causing widespread damage to oceans, habitats and the human food chain.
Daniel Carey-Dawes, campaigner at the CPRE, said the government “risks shooting itself in the foot in its fight against plastic” with its continued support for fracking.
“Not only will fracking industrialise our countryside, cause enormous amounts of landscape damage, air and water pollution, and pose grave risks to human health, it will also contribute to the production of new plastics,” he said.
“By opening the floodgates to fracking, the government will be fuelling the plastic plague that is already putting our countryside, cities and oceans at risk of irreversible harm.”
Companies including Ineos, Cuadrilla and Third Energy are all attempting to pursue fracking projects in the UK but have been bogged down in planning battles with local authorities and faced fierce local opposition. No fracking wells are currently in operation.
But campaigners warn that plans outlined by the business secretary, Greg Clark, earlier this year will mean that many of the democratic planning controls that are preventing the drilling of shale wells in England would be removed.
Carey-Dawes said that such removals would have dire consequences for the fight against plastic pollution: “The government must drop its proposals to simplify fracking exploration immediately if it intends its environmental ‘promises’ to be taken seriously.”
A spokesperson for the government reiterated its determination to reduce plastic pollution and added there was “no correlation between shale gas exploration and increased plastics production”.
However, last year the Guardian revealed that a huge boom in the US shale gas industry has resulted in a £180bn investment in plastic production facilities by fossil fuel giants such as ExxonMobil Chemical and Shell Chemical – contributing to a 40% rise in global plastic production over the next decade.
The American Chemistry Council (ACC) told the Guardian the reason was straight forward.
“I can summarise [the boom in plastics facilities] in two words,” said Kevin Swift, chief economist at the ACC. “Shale gas.”
The petrochemical giant Ineos is a major plastics producer with plants in Grangemouth in Scotland and Norway, and is at the forefront of the push for fracking in the UK.
It currently imports feedstock (the raw materials for making plastic) from the US, but on its website the company – owned by Jim Ratcliffe, the UK’s richest person – says fracking in the UK would allow it “to secure a supply of competitive energy and feedstock for its UK petrochemicals businesses.”
The firm has taken a robust and sometimes controversial approach to exploration, clashing with councils and appealing to authorities to force the National Trust to allow it access to their land.
An Ineos spokesperson said the argument put forward by the CPRE was “naive” and took no account of the “potential energy crisis” facing the UK.
He added the company supported a “circular economy model” where resources – including plastics – are reused and the “negative environmental impacts are minimised”.
He said shale gas in the UK would “displace imported gas for energy, not lead to an increase in gas use” and said the claim that a large shale industry in the UK would “lead to more plastic pollution is entirely false”.
“Shale gas is primarily methane which is used for energy, we don’t use methane to make chemicals or plastics … The CPRE seems to also want to forget that plastic plays a crucial role in the modern world; from lightweight car and plane parts, to blood bags and insulation.”
However, the CPRE pointed out that although methane was not used in plastic production other hydrocarbons, notably ethane, propane and butane, known as natural gas liquids (NGLs) were released during the shale gas process and are key feedstocks for plastic production.
In one of its own briefing documents, under the heading Why does the UK need shale gas? Ineos itself states: “Raw materials: UK manufacturing needs gas to produce everything from plastics to the chemicals used to clean our drinking water.”
Carey-Dawes, said: “For fracked gas to displace what we import, the number of wells required would cause harm to the English countryside on an industrial scale. Regardless, Ineos explicitly and publicly states, on their own website, that they want to frack for their plastic production.”
https://www.theguardian.com/environment/2018/aug/22/uk-fracking-push-could-fuel-global-plastics-crisis-say-campaigners
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Republicans Push FERC for Export Details
Aug 22, 2018 | E&E Energywire
By Hannah Northey
Republican senators on two key energy committees are pushing the nation's top energy regulator for more information about the status and timing of a series of liquefied natural gas export projects.
Sen. Lisa Murkowski of Alaska, chairwoman of the Energy and Natural Resources Committee, and Sen. John Barrasso of Wyoming, chairman of the Environment and Public Works Committee, asked Federal Energy Regulatory Commission Chairman Kevin McIntyre in a letter yesterday for more clarity about comments he made at an oversight hearing in mid-June.
The senators specifically pushed McIntyre on his statement that applications for LNG export terminals are larger and more complex, and inquired about the commission's plans for streamlining and prioritizing applications.
"We were encouraged by your statement regarding the need for timely processing of pending LNG export applications," the lawmakers wrote. "However, we would like clarification concerning FERC's current efforts to address resource constraints."
Also signing the letter were Republican Sens. Bill Cassidy and John Kennedy of Louisiana, Ted Cruz of Texas, Cory Gardner of Colorado, Jim Inhofe of Oklahoma, and James Risch of Idaho.
https://www.eenews.net/energywire/2018/08/22/stories/1060094915
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Another Appeal Filed on FERC's Penn East Approval
Aug 22, 2018 | E&E Energywire
By Saqib Rahim
New Jersey's ratepayer advocate has asked a federal appeals court to review the approval of the PennEast pipeline, in the latest legal move to impede the 120-mile Pennsylvania-to-Jersey gas project.
On Monday, the state's Division of the Rate Counsel asked the 3rd U.S. Circuit Court of Appeals to take a look at the actions the Federal Energy Regulatory Commission took to approve PennEast — first by granting it a certificate order, then by dismissing challenges to that certificate. Those moves took place in January and August.
The New Jersey Conservation Foundation and the Watershed Institute piled on, filing a joint petition for review to the U.S. Court of Appeals for the District of Columbia Circuit. That adds to yet another appeal, also put before the D.C. Circuit, filed this month by the Delaware Riverkeeper Network.
As proposed, the roughly $1 billion PennEast project would run some 120 miles from Pennsylvania to a major gas interconnection in New Jersey, a state that uses gas for almost half of its net electricity generation.
PennEast Pipeline Co. claims consumers are paying higher energy costs each winter in absence of the pipeline. PennEast declined to comment yesterday.
Under federal law, interstate gas pipelines have to get both federal and state approvals before they can be built. Under President Trump, FERC has attempted to streamline, and even update, its part of the process. But some state officials, especially in the Northeast, have come to see natural gas pipelines as incompatible with — or at least demanding more scrutiny under — their climate goals.
Some states, such as New York, have tried to use their authority as an effective veto on such pipelines. But in this case, environmentalists, and some New Jersey authorities, are trying to avoid letting it get that far. They're instead attacking the legality of FERC's approval of the pipeline, saying the regulator gave short shrift to landowners, climate change, endangered species and other concerns.
PennEast was first announced in 2014. In 2017, it took a major step in its permitting, obtaining a water certificate from Pennsylvania regulators. But later that year, New Jersey elected Democratic Gov. Phil Murphy, who said he valued the union jobs that came with pipeline building but also wanted to prioritize renewable energy and carbon cuts.
This year, officials under his charge have filed objections to PennEast. Earlier this year, state Attorney General Gurbir Grewal (D) asked FERC to rehear its PennEast approval; after it denied his request, he appealed to the D.C. Circuit Court of Appeals.
The New Jersey Department of Environmental Protection also had a request for rehearing denied by FERC.
https://www.eenews.net/energywire/2018/08/22/stories/1060094939
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The Next Big Bet in Fracking: Water
Aug 22, 2018 | The Wall Street Journal
By Christopher M. Matthews
Some investors see fortunes to be made in the U.S.’s hottest oil field—by speculating in water, not crude.
Fledgling companies, many backed by private equity, are rushing to help shale drillers deal with one of their trickiest problems: what to do with the vast volumes of wastewater that are a byproduct of fracking wells.
When producers blast a mix of water, sand and chemicals to release oil and gas from rock formations miles underground, they not only unlock oil and gas, but also massive quantities of briny water long buried beneath the surface. Drillers in the Permian Basin in New Mexico and Texas currently generate more than 1,000 Olympic-size swimming pools full of this murky, salty water every day. Handling it amounts to up to 25% of a well’s lease operating expense, according to analysts.
Investors have expressed interest in this corner of the U.S. shale industry, as oil production in the Permian soars to record levels. Analysts said the region could produce more than five million barrels of oil a day by 2023, more than the current daily production of Iran.
Sensing a chance for a big return, private-equity firms have invested more than $500 million into wastewater-disposal companies such as Solaris Water Midstream, WaterBridge Resources LLC, and Oilfield Water Logistics. There are roughly a dozen of these water-focused companies that analysts say could each be worth hundreds of millions of dollars.
These companies are building pipelines to transport the wastewater and dispose of it deep underground, hoping to displace the trucks that currently do the job. Some companies have a longer-term plan: recycling the wastewater to sell it back to drillers to reuse. Most of the companies are currently private; WaterBridge Resources in June announced plans for an initial public offering, and others are expected to follow suit.
“The math on this is really, really easy,” said Christopher Manning, a managing partner of Trilantic Capital Management LP, which has invested in Solaris Water Midstream and committed as much as $100 million to the company. “If the Permian goes up by one million barrels per day in oil production, it’s going up six million barrels in water. That’s an opportunity.”
Larger pools of capital are looking for a way into the game, and Mr. Manning and others expect the companies to attract billions of dollars in investment. KKR & Co., one of the world’s largest private-equity firms, has begun approaching companies in the space in recent months, according to people familiar with the matter. A KKR spokeswoman declined to comment.
Finding a long-term solution to the wastewater problem is essential for Permian producers. A single shale well can produce more than a million of barrels of oil over its lifetime and many times that amount of water.
Energy analysis firm IHS Markit has found that in some parts of the Permian Basin, wells produce 10 times as much water as they do hydrocarbons. In the Delaware portion of the Permian, the area’s most popular geologic deposit, water-to-oil ratios conservatively average 5 to 1, analysts said.
For years, drillers have relied on trucks to move the water, but surging U.S. shale production means trucks alone may not be able to handle the growth, a problem exacerbated by the continuing trucking shortage. Moving the water by truck, about 125 barrels at a time, is no longer feasible when a single well produces thousands of barrels a day. And rising water-management costs could add as much as $6 to the cost of producing a barrel of oil, according to IHS, potentially curbing the growth of future Permian oil supply by 400,000 barrels a day by 2025.
Truckers and the new entrants typically dispose of wastewater in underground wells, but the latter group hopes it can provide drillers the service more cheaply using pipelines that are scalable. Outside of Pecos, Texas, WaterBridge is building a network of pipelines to take away wastewater from some of the area’s biggest producers— Occidental Petroleum Corp. , Concho Resources Inc.,Anadarko Petroleum Corp. and Noble Energy Inc. The company said it would have 125 miles of pipelines built by the end of the year capable of handling 600,000 barrels a day.
“We really don’t know the potential here,” said Jason Long, WaterBridge’s chief commercial officer, during a recent tour of one of the company’s roughly 20 disposal sites on the edge of the Chihuahuan Desert, a compound of steel tanks that process thousands of barrels of water before pumping them into an underground disposal well. “We could sit back in 2020 and have 500 miles of pipe in the ground.”
There are looming regulatory and environmental challenges. Studies have linked disposal wells to earthquakes as wastewater from fracking can put stress on underground faults and increase seismic activity, and some in the industry predict regulators will tamp down on permitting new wells.
Still, producers are signing up for long-term contracts with companies like WaterBridge. That is a shift from what had been a spot market priced by the truck load and a sign that producers need to lock up a solution for their water, said David Capobianco, whose investment firm, Five Point Energy, has pledged $200 million to WaterBridge. Moving water by pipe costs anywhere from 60 cents to $1.50 a barrel compared with more than $2 by truck, said Mr. Capobianco, who previously headed Vulcan Capital, Microsoft Corp. co-founder Paul Allen’s investment firm.
Apache Corp. , one of the largest producers in the Permian, wants to reuse more water to reduce the millions of barrels it must dispose of and limit the freshwater it purchases for fracking, according to a company presentation earlier this year. Apache recycled more than 22 million barrels of water from 2013 to 2016 just in one subsection of the Permian.
“Prudent water management is critical to our success. It’s good for communities, it’s good for the environment and it’s good for business,” said Apache spokesman Phil West.
That means a potentially new opportunity for water-disposal players. Historically, producers have mostly used freshwater for fracking, but water companies are setting up their networks with an eye on treating produced water so it can be reused for fracking and resold to the shale drillers who paid them to take it away in the first place.
“You can flare gas,” said Mr. Capobianco. “You can’t flare water. Once the water stops flowing you have to shut in a well. When we began looking at this sector seven years ago, that was really an epiphany.”
https://www.wsj.com/articles/the-next-big-bet-in-fracking-water-1534930200
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Appellate Decision Sets High Bar For Trump EPA Effort To Revise RMP Rule
Aug 21, 2018 | Inside EPA
By Dave Reynolds
Environmentalists and industry attorneys say the appellate court ruling vacating the Trump administration's delay of the Obama-era facility safety rule sets a high bar for EPA's ongoing effort to revise the regulation, given the judges' emphasis on EPA's Clean Air Act duty to prevent disasters and failure to show the delay was consistent with increased safety.
Emma Cheuse, of Earthjustice, who represented community petitioners in the suit, tells Inside EPA that the ruling sets a high standard for EPA to successfully revise the Risk Management Plan (RMP) rule in a manner that reasonably reverses the agency's prior findings that new protections are necessary to prevent future accidents.
“The court ruled that the plain text of the statute is seeking meaningful prompt action by EPA to promote accident prevention, and the rollback proposal proposes to rescind all accident prevention provisions [of the Obama-era rule] so it directly conflicts with the court's finding that EPA has an obligation to protect under section 112(r)” of the air law, she said.
In its Aug. 17 ruling in Air Alliance Houston, et al., v. EPA and Andrew Wheeler, a panel of the U.S. Court of Appeals for the District of Columbia Circuit vacated the agency's 20-month delay of the Obama EPA's January 2017 RMP rule, finding that EPA's reasoning that it needs more time to revisit issues underlying the rule makes a “mockery” of the air act mandate.
Earthjustice's Cheuse points to additional language in the unsigned per curiam opinion of Judges Judith Rogers and Robert Wilkins, finding that EPA failed to provide a rational basis for delaying new protections or for reversing Obama-era conclusions. “[T]he Delay Rule does not demonstrate, or even acknowledge, that EPA considered Section 7412(r)(7)’s statutory objectives, namely, to 'prevent accidental releases,'” the judges say.
They add, “In promulgating the Chemical Disaster Rule, EPA had found, and the record shows, that there was a need for improvements to protect worker and community safety, and to reduce facilities, injuries, life disruption, and other harm.”
Several industry sources generally agree that the ruling's language will serve as at least a strong reminder for acting Administrator Andrew Wheeler that reasoned explanation is necessary for any changes to the Obama-era rule to survive a future lawsuit.
But others fear the ruling may have a more immediate effect. For example, some say the decision means several provisions of the rule, whose effective dates have already passed, will likely become effective as soon as the court issues its mandate, which could occur as soon as early October as long as EPA does not appeal.
Those include a duty to coordinate emergency response activities with local emergency responders and possibly a requirement for facilities to begin a three-year compliance audit of all covered processes.
Some industry sources say that other provisions of the Obama rule that are slated to take effect in 2020 or 2021 -- such as requirements for safer alternatives and root cause analyses -- may create uncertainty for companies that are now concerned that the Trump administration's rollback may not succeed.
Industry Split
But the industry sources differ on whether the ruling may hamper the ongoing effort to revise the rule.
In an Aug. 17 blog post, attorneys with the firm Conn Maciel Carey, say the ruling issues “a warning” to EPA that any unexplained inconsistency between the Obama-era risk findings that supported the rule, and the Trump administration's reasons for deeming new protections unnecessary could undermine the rollback.
The attorneys Micah Smith, Eric J. Conn, and Beeta Lashkari say the judges' ruling ignores the Trump administration's shift to a deregulatory approach that focuses on case-by-case enforcement rather than broad mandates.
“While the Court made clear that EPA has the ability make substantive changes to its own rules, that ability is limited by its Congressional authorization (the Clean Air Act in this case), and a change in presidential administrations has no effect on that authorization,” the attorneys say.
But two other industry sources say that the ruling will have little effect on the revision. They argue the ruling hinges on a Clean Air Act limit on delaying rules for purposes of revision to three months.
The sources acknowledge that the judges also note the court's holding EPA to reasonable decision-making, but argue the language is simply a reminder that EPA will have to justify any changes during the revision, possibly through its response to comments.
“The way I read it, they're really telling EPA, 'you just didn't do your homework. You had the authority to do these things but you just didn't do your homework correctly, and you didn't make your case strong enough,” one industry source says. The source adds EPA will have an opportunity to solidify its points in the revision process.
Shortly before the end of the Obama administration, EPA issued a January 2017 final rule updating the agency's RMP program with new requirements. The update rule generally requires facilities to conduct third-party audits, analyze safer alternatives, and streamline data disclosure to first responders and the public, among other requirements.
In response to petitions from industry and some GOP-led states, the Trump administration issued a final rule delaying the Obama-era RMP update for nearly two years, until February 2019, to allow time for the agency to reconsider and potentially revise the rule.
EPA is currently seeking public comment through Aug. 23 on a May 17 proposed rule seeking to rescind most requirements of the Obama-era rule.
In revising the rule, the Trump administration has backed industry arguments that the Obama-era rule is costly and unnecessary because the existing RMP rule has reduced accidents, and that provisions streamlining disclosure of facility data could worsen the risk of terror attacks.
The judges' ruling faults EPA's reasoning that it needs to postpone effective dates to allow more time to revisit issues underlying the rule as making a “mockery” of a Clean Air Act requirement to quickly implement rules.
“The Delay Rule does not have the purpose or effect of 'assur[ing] compliance' with Section 7412(r)(7); it is calculated to enable non-compliance,” the judges said.
'Does This Need To Be Revised?'
Cheuse, of Earthjustice, and Bethany Davis Noll, litigation director at the Institute for Policy Integrity, a group that backs the Obama-era rule, argue that the court's decision creates significant hurdles for the rule's rewrite and that EPA should withdraw or drop the proposed revision rule altogether and implement the Obama-era rule.
For example, Davis Noll notes that the judges' ruling notes that delaying the Obama-era rule increased risks to steelworkers. And she argues that EPA will struggle to explain how eliminating those same protections for steelworkers through a revision rule is consistent with the Clean Air Act's requirement for accident prevention.
Davis Noll also argues that the Trump administration's revision rule focuses largely on the economic benefits of scaling back the rule rather than on EPA's mandate to reduce accidents, which was a major focus of the court's ruling.
“In the proposed revision we have seen an emphasis on cutting costs without any real even-handed effort to address the harms that the roll back rule is going to cause,” she said. “I think it would be really hard for any administration to explain that” the requirements of the Obama-era update are not consistent with the law's requirement to reduce accidents.
She also argues that the ruling creates procedural hurdles. Commenters lack a baseline of an implemented rule to inform their input on any potential changes because of a delay that has now been deemed illegal.
“We should have an [implemented] rule and be able to look at that and say, 'does this need to be revised?'” she said.
Micah Smith, of Conn Maciel Carey, tells Inside EPA that the recent ruling reinforces the challenges that EPA and other agencies face during major swings in administrations' regulatory philosophies. “There's this weird [incongruity] where we all know [a change] is going on. But the court doesn't acknowledge that, and probably legally, it shouldn't,” Smith said. “Trying to roll back something that the previous administration did can be really dicey."
Smith said that the court's ruling serves as a reminder that EPA will have to justify any revisions it makes. But in the meantime companies face “tremendous uncertainty” in whether to move toward implementing major provisions of the Obama-era rule, like third-party audits and safer alternatives analysis, which are slated to take effect in March 2021, or bank on the Trump administration succeeding in rolling back those provisions.
“Without this delay, there is tremendous uncertainty about whether or when to implement changes to those programs,” Smith and the other attorneys with the firm say in the blog. “While there is more to be written on how this decision may shape EPA’s ongoing effort to rescind the 2017 RMP Amendments, the immediate effects of this ruling are of greatest concern to Industry.”
But another industry attorney doubted that the ruling will have a major impact, given many compliance deadlines are well into the future. “What [facilities] have to do, they will be able to do, and EPA should be able to get the rule revised before the other stuff kicks in,” the second industry source says.
https://insideepa.com/daily-news/appellate-decision-sets-high-bar-trump-epa-effort-revise-rmp-rule
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Court’s Blow to EPA Delay of Chemical Plant Safety Rules Sows Confusion
Aug 22, 2018 | BNA Daily Environment Report
By Sam Pearson
Trump administration legal efforts may unintentionally resurrect Obama-era chemical facility safety rules, even though companies thought the rules would be killed off.
Judges on the U.S. Court of Appeals for the District of Columbia Circuit found Aug. 17 the Environmental Protection Agency lacked sufficient basis to delay for 20 months the Obama-era changes to its risk management program, a set of safety standards aimed at keeping first responders and communities near chemical facilities safe.
Now about 12,500 facilities using high-risk chemicals are uncertain about complying with a litany of safety provisions that industry has derided for years as costly, ineffective, or unworkable. The companies also argued that making too much plant information publicly available could make them vulnerable to terrorist attacks or other security risks.
Countdown to ComplianceWith the D.C. Circuit’s rejection of the 20-month delay, Obama-era plant safety rules could soon apply.
Unless the EPA pursues and wins a rehearing before the full court, parts of the regulation could take effect as soon as October, Micah Smith, a partner at the law firm Conn Maciel Carey’s workplace safety practice group in Washington, told Bloomberg Environment.
“I’ve already been on the phone with a few different companies who are trying to establish how immediate this is; whether they need to start taking action right now,” Smith said.
Uncertainty around compliance could persist unless companies mount a successful legal fight or the EPA can replace the regulation with something else that can pass judicial review—a process already underway.
The agency estimates the Obama-era program could the industry about $131 million per year, but prevent some of an estimated $274.7 million in annual damages from unplanned chemical releases.
Chemical industry leaders have not warned investors of any near-term financial impact associated with possibly losing the case, Jason Miner, senior global chemicals analyst at Bloomberg Intelligence in Princeton, N.J., told Bloomberg Environment in an email.
“We just went through earnings season without hearing a peep about this,” Miner said.
Meeting ComplianceFirst to take effect would be a requirement that three-year compliance audits cover a broader set of safety elements for all individual production processes at a facility. Most regulated facilities have one chemical process, but especially complex sites like major chemical plants and oil refineries can have multiple processes.
About 100 facilities have more than 10, according to public comments the American Chemistry Council submitted in 2016.
“They have so many different processes that for them to audit all aspects of all processes could be pretty challenging,” Smith said.
Exxon Mobil Corp., Chevron USA Inc., Andeavor Inc., and LyondellBasell Industries N.V. didn’t respond to requests for comment by Bloomberg Environment or referred questions to industry trade organizations, which represent hundreds of affected firms.
Frank Macchiarola, the American Petroleum Institute downstream group director, said in a statement to Bloomberg Environment the trade group is disappointed in the court’s ruling.
‘Evaluation Our Options’“We are still evaluating our options,” Macchiarola said.
The American Chemistry Council said in a statement it was reviewing the ruling and will “evaluate the court’s decision and continue to work with the Agency to safeguard chemical facilities and protect communities.”
Companies also will face an immediate mandate to coordinate with emergency responders by providing them with information about regulated chemicals at their site, including stored quantities, the risks they present, and the facility’s ability to respond to accidental releases.
More far-reaching changes could take effect later.
By March 2020, certain companies would have to revise their emergency response programs. In addition, by March 2021 they’d be on the hook to implement third-party audit, incident investigation, root-cause analysis, safer technology, response exercises, and public information sharing. And then by March 2022 firms must update their risk management plans to be more comprehensive.
In the short-term, companies should think about what they can do to improve a facility, Smith said.
“If there’s any of these provisions that you see as beneficial or easy to implement, go for it—why not?” Smith said. “For those things that are terribly burdensome or expensive, then you have to evaluate.”
Pruitt’s Replacement RuleAlso up in the air is the status of the EPA’s effort to replace the Obama-era regulations, a series of changes proposed in response to a 2013 Texas fertilizer plant explosion that killed 15 people.
That proposal—which the agency is taking public comments on through Aug. 23—was issued by former EPA Administrator Scott Pruitt in May and the agency had planned to finalize it early in 2019. But now doing so could draw legal challenges.
“EPA can’t lawfully finalize the rollback rule based on the current proposal anymore,” Gordon Sommers, an attorney at Earthjustice in Washington who represented advocacy groups that pursued the case before the D.C. Circuit, told Bloomberg Environment in an email.
The EPA should withdraw the replacement rule and implement the Obama proposal, Sommers said.
The EPA didn’t respond to a request for comment from Bloomberg Environment.
But companies face legal peril even if the EPA doesn’t aggressively enforce the Obama regulations, Mark Farley, a partner at the law firm Katten Muchin Rosenman LLP in Houston, told Bloomberg Environment.
That’s because the Clean Air Act allows for citizen suits against violators which means individual plaintiffs or advocacy organizations can sue if they can prove companies are not complying with the regulations.
The case on EPA’s bid to delay the rules by 20 months is Air Alliance Houston v. EPA.
https://news.bloombergenvironment.com/safety/courts-blow-to-epa-delay-of-chemical-plant-safety-rules-sows-confusion
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Southern Co. CEO Warns Federal Cyber Rules 'Are Not Enough'
Aug 22, 2018 | E&E Daily
By Christa Marshall
Southern Co. CEO Tom Fanning warned Senate lawmakers yesterday that federal cyber standards for the power sector "are not enough" to protect against dangerous attacks on the grid and electricity system.
Appearing before the Senate Judiciary Subcommittee on Crime and Terrorism, Fanning outlined what a potential extreme attack, in which hackers got into grid management systems, could look like in the next decade. The panel met to hear from witnesses across multiple industries on how to protect the U.S. from a range of hackers and cyberthreats.
Even though threats to nuclear power plants grab headlines, the "real crown jewel is the electric system, [that] really deals with the electricity management infrastructure," Fanning said.
"If they could ever get into our ability to manage our electron flows across this part of the United States, impacting everything we border, it would be really catastrophic," he said.
Southern conducts a range of drills, including targeting its own computers, to prepare for such scenarios, he told the committee.
"We attack our personnel inside Southern company. ... We even send our board of directors fake phishes," he said.
A 2005 energy law helped establish unique mandatory cyber standards for the electricity sector that allow penalties that can top $1 million a violation a day per offender, but they alone cannot guarantee security, he said.
"That is why we are focused on growing partnerships across the industry and with government and on preparing to respond," he said.
Fanning co-chairs the Electricity Subsector Coordinating Council, a group of energy leaders that serve as the chief liaison between the power sector and the federal government on cybersecurity.
Among other activities, the ESCC has conducted a series of industry-only and industry-government exercises simulating attacks to prepare for various scenarios. It also is developing a "wish list" that will include legislative suggestions, according to Fanning.
Fanning said that Energy Secretary Rick Perry has given the issue the "highest priority" but told lawmakers the government could do more.
As one example, he told Sen. Ted Cruz (R-Texas) that any infrastructure bill could allocate funding for spare transformers to provide "greater capability for analyzing computer systems that are common to industry," he said.
Sen. Lindsey Graham (R-S.C.) told Fanning there need to be more "carrots" for industry, rather than regulations of it, perhaps through immunity from some lawsuits.
"If you do what's best in your industry, we will protect you from being sued," Graham said.
"That's a great idea," Fanning said.
Sen. Sheldon Whitehouse (D-R.I.) said he was concerned that there's no lead agency working with Congress on cybersecurity.
"What I'm afraid of, is that we're going to go forward into a cyber catastrophe, which everybody predicts but which we did nothing about" because executive agencies and Congress "wouldn't get their act together," he said.
https://www.eenews.net/eedaily/2018/08/22/stories/1060094929
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New Power Plant Proposal Sidesteps Issues Kavanaugh Raised
Aug 21, 2018 | BNA Daily Environment Report
By Fatima Hussein
Supreme Court nominee Brett Kavanaugh was skeptical of the Obama EPA’s broad attempt to regulate carbon dioxide from the power sector, but the Trump administration’s narrower replacement does not seem to raise the same legal questions.
The Environmental Protection Agency proposed the Affordable Clean Energy Rule Aug. 21 to replace the Obama administration’s Clean Power Plan. Once completed, the rule is expected to draw immediate lawsuits from some states and environmental groups that could potentially reach the Supreme Court.
As a judge on the U.S. Court of Appeals for the District of Columbia Circuit, Kavanaugh heard the September 2016 oral arguments over the Clean Power Plan. His questions at the time showed his skepticism over the Obama administration’s broad reading of its authority under the Clean Air Act.
The Trump administration’s more modest rule only focuses on the steps individual power plants can take to curb their carbon dioxide emissions, but the Clean Power Plan was much broader. It encouraged utilities to switch to cleaner fuels or invest in renewable power instead, an expansive reading of the law that appeared to concern Kavanaugh.
Kavanaugh Favors Congressional ActionThroughout the Clean Power Plan arguments, Kavanaugh raised the major questions doctrine—a legal theory that significant economic and political issues are best addressed by Congress, and not by agencies like the EPA. The U.S. Supreme Court has halted the proceedings, so Kavanaugh never had the chance to rule on the case.
Kavanaugh raised doubts about the EPA’s authority to act as it did, William W. Buzbee, an environmental law professor at Georgetown University Law Center in Washington, told Bloomberg Environment. “It’s a subject Kavanaugh has raised in other cases as well.”
“One reading of the tea leaves is that a future Justice Kavanaugh may essentially derail agencies by saying Congress didn’t clearly enough hand them power, instead of seeing a broad delegation under Chevron,” Buzbee said, referring to the Chevron doctrine.
The Chevron doctrine, named for a landmark 1984 Supreme Court decision involving ChevronU.S.A., Inc., affords agencies deference in how to interpret laws in cases where a statute is vague.
Clean Power Plan ‘Conundrum’Kavanaugh was very involved in asking about the “legislative and statutory conundrum that is inherent in the Clean Power Plan,” said John Cruden, a Beveridge & Diamond attorney and former head of the Environment and Natural Resources Division at the Justice Department, who oversaw the defense of the rule.
“He directed a lot of questioning concerning the statutory framework in an effort to address and understand potential conflicting parts of the law,” Cruden told Bloomberg Environment.
The Trump administration’s much narrower Affordable Clean Energy rule could avoid some of those pitfalls.
“Kavanaugh felt that not every owner of fossil units could comply simply by building new low- or zero-emitting units and so the rule would require at least some fossil generators to subsidize their competitors, which he apparently viewed as beyond the bounds of what Congress authorized EPA to require under the Clean Air Act,” Kevin Poloncarz, a partner at Covington & Burling LLP who argued on behalf of utility companies in favor of the Clean Power Plan, told Bloomberg Environment.
Ted Hadzi-Antich, a senior attorney in the Texas Public Policy Foundation’s Center for the American Future, which joined challenges to the Clean Power Plan, told Bloomberg Environment it may be too soon to tell what Kavanaugh would think of the proposed Affordable Clean Energy rule.
“Kavanaugh is a very careful jurist and thinker, and trying to put myself in his shoes and form an opinion about this proposal, he’d study it thoroughly before he’d form an opinion,” Hadzi-Antich said.
Kavanaugh’s Senate confirmation hearings are scheduled to begin Sept. 4. If confirmed, Kavanaugh would replace the retired Justice Anthony Kennedy.
https://news.bloombergenvironment.com/environment-and-energy/new-power-plant-proposal-sidesteps-issues-kavanaugh-raised
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EPA's 'Affordable Clean Energy' Rule Gives States Broad Discretion On GHGs
Aug 21, 2018 | Inside EPA
By Dawn Reeves
The Trump EPA's long-awaited proposal to replace the Obama-era Clean Power Plan (CPP), the Affordable Clean Energy (ACE) rule, does not set an overall greenhouse gas reduction limit or emissions rate for power plants, instead granting broad discretion to states to set GHG limits at individual plants based on an assessment of what can be achieved at each facility.
The Aug. 21 proposed rule also includes relief from new source review (NSR) requirements to install modern pollution controls at an existing facility that undertakes projects to boost efficiency and lower GHGs, suggesting that older plants could stay online longer.
The rule text also indicates the NSR exemption could apply to the “reactivation of a very clean coal-fired [electric generating unit (EGU)],” which suggests that recently retired coal plants could come back online.
Acting EPA Administrator Andrew Wheeler and air chief William Wehrum outlined the proposal for reporters on an Aug. 21 call, where Wheeler called the CPP replacement “a better plan” than the CPP it seeks to replace, one that “respects the rule of law” and “operates in the four corners of the Clean Air Act."
“The era of top-down federal mandates is over,” he said. “The ACE rule will continue emission cuts into the future, legally, and with proper respect for the states.”
Wehrum outlined the three main components of the proposal, including that it redefines the relationship and responsibilities of EPA and states under section 111 of the air law to grant far more discretion to states, giving them “the primary authority to determine what emission controls need to be established.”
EPA's role is to create a framework and make recommendations for improving power plant efficiency and reducing GHGs, he said.
EPA does this by identifying the best system of emission reduction (BSER) as heat-rate efficiency improvements at an existing power plant, and then provides states with a list of “candidate technologies” to consider as they make plant-by-plant determinations.
To do this, EPA also has to revise a separate rule defining BSER, which has in the past required the agency to identify an emissions limit. The proposal sets no numeric limit.
Wehrum said the CPP sought to regulate the power sector as a whole, including in areas where EPA lacked authority. ACE is “bringing this regulation back into focus . . . at the source.”
Wehrum also outlined the proposed NSR reforms to note that the program otherwise “could stand as a barrier to efficiency projects” and that the exemption allows ACE and NSR to “operate in concert rather than in conflict.” He also clarified that the reforms only apply to coal plants making efficiency upgrades under ACE.
However, Democratic lawmakers, state attorneys general (AGs), legal experts, environmentalists and others are already questioning the legality of the rule, in particular the changes it seeks to make to NSR. And a coalition of AGs led by New York's Barbara Underwood (D) is already vowing to sue over the rule if it is finalized.
Senate Democrats expressed outrage over the proposal, including by citing EPA's own estimates that it could lead to 1,400 more premature deaths from air pollution compared with the CPP. “If that isn't enough reason to say, 'No thank you,' I'm not sure what is,” said Sen. Tom Carper (D-DE) during an Aug. 21 press conference.
Sen. Sheldon Whitehouse (D-RI) charged that the proposal is a byproduct of “corruption” at EPA due to the heavy influence of the fossil fuel industry. “We have found that when that corruption and conflicts of interest are exposed to courts, they lose and they lose and they lose. We predict a similar fate for this phony rule,” he said.
'Little Difference' In Emissions
On the press call, Wehrum said projections that the rule will achieve similar GHG cuts to the CPP are based on market forces, not the intricacies of the rule. “It is difficult to predict with certainty what's going to happen, and the reason is” because EPA is giving states primary authority to impose measures, and “that flexibility and latitude means it's difficult to predict what states are going to do.”
But he added that compared to the CPP “we believe there's going to be very little difference” in emissions because of industry trends that are expected to continue including big shifts away from coal and toward natural gas and renewable energy.
He said prior reports that the rule would allow states to seek waivers from compliance “is incorrect,” and that all states will have to submit compliance plans to EPA three years after the rule is final. EPA would then have one year to approve plans, and additional time to impose a federal plan if a state fails to submit one or submits a deficient one.
However, the proposal does allow states to exempt an individual plant if it is determined to be at or near the end of its remaining useful life. “Specifically, the Act requires that EPA permit states to consider, 'among other factors, the remaining useful life' of an existing source in applying a standard of performance to such sources. CAA section 111(d)(1),” the proposal says.
Yet Wehrum stressed on the call that there “may be different measures required on different units, but it is not true” that a state would “not need to do anything. That is not permissible under the program.”
EPA predicts that ACE will save consumers a marginal amount of money on their energy costs, predicting electricity prices to drop between 0.2 percent and 0.5 percent in 2025 compared to prices under the CPP, which critics had warned would bring skyrocketing electricity bills.
And the proposal contemplates allowing states to include trading as a compliance mechanism even though it is beyond a facility's fenceline. EPA seeks comment on whether allowing trading would “result in such standards going beyond what section 111(d) permits. . . . EPA welcomes comments on the legality and appropriateness of utilizing this provision generally, and in the context of specific compliance flexibilities that states may employ.”
On the call, Wehrum said the agency believes BSER should be focused on controls and measures at the plant and that possible flexibilities such as trading “creates tension because, on the one hand, we think the law should be read to require consideration of individual power plants. On the other hand, we understand the kind of flexibilities provided by trading and improve these programs, make them more cost effective and effective overall.”
He said the agency is “looking forward to getting comment to help us think through that question.”
Finally, Wehrum defended the legality of the ACE proposal. He said an important part of the proposal “is to bring the agency back and implement the Clean Air Act the way we think it should be implemented” to focus on efficient operation of power plants.
That, he said, is “on much firmer legal ground than the CPP was,” which was stayed by the Supreme Court so it could not be implemented during litigation. “We're confident” ACE brings the agency back to its “core function” of “regulating things that emit.
https://insideepa.com/daily-news/epas-affordable-clean-energy-rule-gives-states-broad-discretion-ghgs
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EPA Details ACE Rule's Emissions, Cost Increases, Bolstering Critics
Aug 21, 2018 | Inside EPA
By Dawn Reeves
Critics of EPA's newly proposed Affordable Clean Energy (ACE) rule to cut power sector greenhouse gases, offered as a narrower replacement to the Obama-era Clean Power Plan (CPP), are citing the agency's own analyses showing increased emissions and costs to highlight what they say are deep flaws that will make the rule vulnerable in court.
Specifically, environmentalist and other opponents of the Trump EPA measure cite agency analysis that the plan could cause as many as 1,400 additional premature deaths annually beginning in 2030 compared to the CPP, that it would vastly reduce overall benefits compared to the CPP, that it could boost both GHGs and criteria pollutants, and that it will have only a marginal impact, at best, on lowering electricity prices.
These observers are especially critical of the proposal's provision to offer relief from the Clean Air Act's new source review (NSR) permitting requirements to install modern pollution controls if coal plants boost efficiency to lower GHGs, and suggest that even EPA knows how legally vulnerable that portion is, since the agency says that measure is severable from the rest of the rule.
If ACE is finalized, EPA will “face enormous legal hurdles because it will have to explain why it is exercising its discretion to pick a legal interpretation that causes so much harm,” Ricky Revesz, dean emeritus of New York University's law school, told reporters on an Aug. 21 call.
He and other Clean Air Act experts said that the proposal to restrict mandated GHG cuts to what can be achieved by efficiency improvements at individual coal plants “is downright counterproductive, leading to an increase in GHGs. It will also lead to a significant increase in pollutants that affect public health” and bring “increased premature deaths and asthma attacks.”
Revesz noted those claims are being made not by “opponents but EPA itself” in its Regulatory Impact Analysis (RIA) that shows a range of increased premature deaths caused by extra exposure to ozone and fine particulate matter. One scenario shows a range of 470 to 1,400 additional early deaths a year in 2030. He added that the RIA acknowledges “net foregone benefits in the billions of dollars” compared to the ACE rule's net annual benefits of about $400 million.
“Typically, agencies don't acknowledge enormous harm from” their own proposed rulemaking, according to Revesz. But here EPA makes it “clear in the RIA, it's clear in the Federal Register [notice] and I think that finding deserves a great deal of attention.”
Overall, EPA acknowledges that the proposal's annual “net benefits” would be between $2.3 billion and $6.4 billion lower compared with implementing the Obama-era CPP standards, when using a 3 percent discount rate.
Cumulatively, the agency finds that its plan would reduce “net benefits” by up to $76 billion through 2037.
EPA air chief William Wehrum addressed this issue during a separate Aug. 21 press call, where he was asked why it is acceptable for the agency to propose a CPP replacement that has additional costs and premature deaths when it separately justifies its proposed vehicle GHG rule rollback by arguing that would save 1,000 lives each year through avoided auto accidents.
In response, Wehrum acknowledged that EPA's job is to protect public health, but that it is limited by its Clean Air Act authority. The Trump EPA argues that the CPP's requirements go well beyond that authority.
The agency is also contending, however, that ACE and the CPP will achieve similar GHG reductions based on the industry's downward GHG trajectory due largely to market forces.
'Causes So Much Harm'
But Revesz said the agency's decision “confining its attention” to heat-rate improvements only achievable at a facility is “inconsistent” with regulatory determinations made by both Republican and Democratic administrations “going back decades.”
EPA's RIA includes a range of estimated costs and benefits based on various scenarios because the plan does not set an overall GHG reduction limit or emissions rate and instead grants states wide discretion in setting standards for individual plants.
As such, the agency assesses the costs and benefits of three “illustrative” compliance scenarios based on varying levels of efficiency gains at different prices per unit of electricity.
In addition to comparing the rule to implementing the CPP, the RIA also uses other comparisons in an effort to downplay some of the negative findings. For example, it includes a series of charts looking only at the benefits of reducing the “targeted pollutant,” an analysis that omits any “co-benefits” of reducing conventional air pollutants alongside carbon dioxide, which comprised more than half of the CPP's benefits.
In the RIA's targeted pollutant analysis, EPA finds the plan might still reduce net benefits by $500 million annually, or it could boost such benefits by $300 million.
Environmentalists and others are also charging that the Trump EPA's benefits calculations are flawed, given that it uses an “interim” social cost of carbon (SCC) value that is far lower than estimates developed by the Obama administration because they are based only on climate-related benefits in the United States, and not globally.
Revesz said the Trump SCC, which also subjects the domestic benefits to a high interest rate, is an “unfair” and deliberate attempt to cut the benefits of reducing GHGs that is not supported by a single reputable economist or scientist.
Additionally, the agency also includes analyses of the rule compared with an “alternative” scenario in which the CPP never existed, even though it includes the CPP in its “base case.”
This “alternative” scenario yields more favorable cost-benefit figures, with the RIA finding that the plan could have a marginal decrease in net benefits each year or increase such benefits by $1.1 billion annually.
Additionally, the RIA looks at compliance costs under various scenarios to find that three of four -- including a “no CPP” case -- reduce costs. However, one scenario would increase costs, meaning that industry could pay more to comply with ACE than it would to meet the CPP. Also, compared to a no-CPP baseline, the rule only reduces costs in one of three scenarios.
“Due to a number of changes in the electricity sector since the CPP was finalized, . . . the sector has become less carbon intensive over the past several years, and the trend is projected to continue. These changes and trends are reflected in the modeling used for this analysis. As such, achieving the emissions levels required under CPP requires less effort and expense, relative to a scenario without the CPP, and the estimated compliance costs are significantly lower than what was estimated in the final CPP RIA,” EPA says.
The Natural Resources Defense Council (NRDC) cites the compliance cost estimates to note that even EPA acknowledges a scenario where coal plants improves their efficiency by 4.5 percent at a cost of $100 per kilowatt/hour would impose up to $500 million more in annual costs compared to the CPP.
“You read that right: Trump's EPA is proposing to replace the CPP with a scam that is less protective but more costly,” the group says in a blog post.
NSR 'Loophole'
Sue Tierney of the Analysis Group said on the press call that the power sector has already cut GHGs by 28 percent -- nearly all of the CPP's requirement of a 32 percent reduction from 2005 levels by 2030. She doubts that the ACE rule will do anything to change the downward coal trajectory, even with the controversial proposal to include NSR relief for coal plants making efficiency upgrades.
“Given the financial challenges of some of the older coal-fired power plants . . . it is entirely possible this gesture to give them regulatory relief for installing efficiency improvements won't even be attractive because it is very difficult to justify in the real world those business decisions to add new investments on their power plants,” she said.
But she and others acknowledge that smaller coal plants nearing retirement could seek to forestall closing for years by taking advantage of the NSR exemption to upgrade and then run more often.
NRDC addresses this in another blog post, warning that “minuscule efficiency improvements may slightly reduce a coal plant’s emission rate” but that “a coal plant that operates more efficiently may be called upon to run more hours, increasing the total amount of CO2 emitted overall. The proposal acknowledges the possibility of this 'rebound effect.' Instead of trying to prevent the rebound effect, [EPA] proposes a loophole to encourage it by” including the NSR exemption.
Tierney added that NSR changes are not something that industry is clamoring for anymore given coal's weakened state, but they are “high on the list” of the administration. Revesz said Republican administrations have long sought to grant “eternal life” to older plants that never have to meet modern pollution standards and he sees ACE's NSR exemptions as “a cynical effort to bury something of enormous importance” in a dense regulation dealing with something else.
An EPA spokeswoman says the proposed NSR changes are intended to benefit efficiency improvements that decrease hourly emissions and “could be one tool” for states to use in their compliance plans. The spokeswoman adds states “would have the option (but would not be required) to adopt the” provision. Additionally, she spokeswoman says all of the RIA scenarios show CO2 reductions under this approach along with “small changes in the amount of projected operable coal capacity.”
Finally, an Aug. 21 working paper by the think tank Resources for the Future (RFF) is adding technical rigor to concerns about the plan's potential emissions increases. The paper analyzed the “potential effects of a similar at-the-source policy scenario on national and state emissions” of CO2, sulfur dioxide (SO2) and nitrogen oxides (NOx) and finds a “modest” cut of 2.6 percent of power sector CO2 emissions nationally, with increases in eight states.
It also finds evidence of a rebound effect, in which coal plants that become more efficient operate more often,” the paper says, adding that the increased emissions in some areas “would degrade air quality and cause adverse health effects.” Further, when compared to a “beyond-the-source” policy like the CPP, emissions of CO2, SO2 and NOx are “substantially higher.”
RFF's Dallas Burtaw has long warned about such a rebound effect, and has noted that air law section 111(d) requires the agency to weigh “other environmental outcomes” of its rules, meaning EPA likely must show that its standards do no worsen air quality.
https://insideepa.com/daily-news/epa-details-ace-rules-emissions-cost-increases-bolstering-critics
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Narrower EPA Power Plan Leaves Emissions Trading Up in Air
Aug 21, 2018 | BNA Daily Environment Report
By Abby Smith
The EPA proposal to replace Obama-era power sector carbon controls leaves state regulators and utilities with unanswered questions about whether they can use emissions trading to comply with the new Trump administration plan.
The Environmental Protection Agency on Aug. 21 unveiled its plans to replace Obama-era greenhouse gas limits for existing power plants, also known as the Clean Power Plan, with a narrower alternative.
The Trump EPA proposes to base its standards on heat rate, or efficiency, improvements that can be achieved at an individual facility. It would replace the Obama administration’s broader plan, which also urged utilities to switch from coal to cleaner-burning natural gas and renewable energy.
Under emissions trading, power plants that produce fewer emissions than allowed can sell credits to those that emit more, to help bring them into compliance.
While the Clean Power Plan explicitly allowed—and in some ways encouraged—emissions trading, it is not clear whether the Trump administration replacement plan would.
EPA Seeking CommentThe new plan isn’t specific about whether—or how—states can use trading or other compliance options, such as averaging emissions across facilities. That is because the EPA appears to be grappling with whether it can legally allow those broader compliance options, which extend beyond what an individual facility can do.
Compliance flexibilities, such as trading, create a tension with how the agency is interpreting the Clean Air Act, EPA air chief Bill Wehrum told reporters on an Aug. 21 call. The Trump EPA is proposing it is unlawful for the agency to consider anything outside the confines of what an individual power plant can achieve, through efficiency improvements, when setting its regulatory framework.
The EPA is seeking comment on whether trading and emissions averaging—both of which extend beyond an individual facility—could be allowed under that narrow reading of the statute, Wehrum said. The Obama Clean Power Plan, by contrast, looked more broadly at the electricity grid as a whole.
“We think the law should be read to require consideration of individual power plants’ [actions], but on the other hand we understand that the kind of flexibility provided by trading can improve implementation of these kinds of programs and make them more cost-effective overall,” Wehrum said.
Prolonging UncertaintyDeferring the question of whether to allow trading, however, prolongs the uncertainty that power companies say they are facing.
“Utilities want clarity for their planning cycles. They want certainty for what their planning cycle is going to look like so they can make investments today,” Kevin Poloncarz, an attorney with Covington & Burling LLP in San Francisco, told Bloomberg Environment.
The less detail the EPA provides on compliance mechanisms, the less certainty that utilities have, added Poloncarz, who represents several utilities such as Calpine Corp. and National Grid that support the Clean Power Plan.
The EPA is putting the onus on utilities and state regulators, which may be eyeing trading as a low-cost option to implement the new plan, to persuade the agency to more explicitly endorse it and provide clearer guidance.
It is also possible the EPA ultimately won’t allow trading to comply with its new plan.
Clean Power Plan TradingThe Clean Power Plan allowed emissions trading within power companies, across companies, and across states, Janet McCabe, who was acting EPA air chief during the Obama administration’s second term, told reporters on an Aug. 20 press call. It was modeled after prior trading systems the EPA used for conventional air pollution requirements, including sulfur dioxide and acid rain.
The Trump EPA’s restricted approach may not provide that kind of flexibility, Joe Goffman, former senior counsel in the EPA’s air office during the Obama administration, said on the Aug. 20 call.
And in that case, it could actually compel utilities that wouldn’t have otherwise spent money on their coal-fired units to do so for efficiency improvements, Goffman said.
Industry backers of the EPA’s new plan see a way for narrower standards and broad compliance options to work in harmony. That is because the Clean Air Act limits the EPA’s role to establishing a framework for emissions cuts and allows state regulators discretion to choose how to comply.
The EPA’s new proposal, called the Affordable Clean Energy rule, follows that model.
“States will be truly in the driver’s seat,” Dan Byers, vice president for policy at the U.S. Chamber of Commerce’s Global Energy Institute, told Bloomberg Environment. For example, states will be able to consider a power plant’s remaining useful life and determine how—or whether—to impose the requirements on that unit.
Byers said the Clean Air Act was clear the EPA must base emissions standards on what can be achieved at an individual facility.
“I have a hard time seeing how the notion of flexibility on the compliance side dictates that standards have to be” broader, Byers said.
‘Defies Logic’But environmentalists argue the Trump EPA—as well as its supporters—want to have their cake and eat it, too.
The narrow standards the EPA is proposing already fall far short of what the agency must do to combat climate change, and allowing emissions trading or other compliance flexibilities would dull even further the EPA plan’s impact on the sector’s carbon emissions, they said.
That asymmetry—between the narrow standard-setting and broader compliance options—would be a major legal vulnerability for the EPA’s replacement plan, Andres Restrepo, an attorney with the Sierra Club, told Bloomberg Environment.
The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Environment is operated by entities controlled by Michael Bloomberg.
Because the Trump EPA takes the position the standard must look only at what an individual plant can achieve, “I don’t think you can say something like trading is permitted from a legal standpoint,” Restrepo added. “It completely defies logic.”
https://news.bloombergenvironment.com/environment-and-energy/narrower-epa-power-plan-leaves-emissions-trading-up-in-air
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Refiners, Manufacturers Back Air Permit Changes for Power Plants
Aug 21, 2018 | BNA Daily Environment Report
By Abby Smith and Amena H. Saiyid
Oil and gas refiners and manufacturers are backing an EPA-proposed change to air pollution permitting—which now is aimed only at power plants—in hopes it will eventually extend to their sectors.
The Environmental Protection Agency is proposing to tailor changes to the “new source review” permitting program as part of a broader rewrite of the Clean Power Plan, the Obama-era rule that set first-ever limits on carbon dioxide from existing power plants. The new source review permitting program requires companies to install controls when they expand or add new facilities that result in an increase in emissions.
Typically, any industrial facility that either expands or engages in new construction that significantly increases emissions of air pollutants such as nitrogen oxides, particulate matter, and sulfur dioxide is required to get a new source review permit. That emissions increase has been historically measured on an annual basis, but the EPA is now proposing to assess any emissions bump for power plants by also using an hourly rate, mirroring an effort the Bush EPA proposed in 2007 but never finalized. That change could mean power plants could run longer without triggering additional requirements to control their pollution.
The new source review changes are “an absolute priority for manufacturers, and we believe it is critical to achieving greenhouse gas reductions in a cost-effective manner,” Ross Eisenberg, vice president of energy and resources policy for the National Association of Manufacturers, told Bloomberg Environment. The association’s board includes representatives from many major corporations, including General Electric Co., Phillips 66, and BASF Corp.
Ideally, the refining and manufacturing sectors would like the EPA to extend the permitting changes to their factories and plants, as well. But representatives told Bloomberg Environment they would be content to let them apply to just power plants for now. That is because the changes could ultimately be extended to their sectors, they said.
“To the extent that refiners and manufacturers are pushing for new source review reform in the Clean Power Plan [replacement], it would be to set precedent,” Richard Alonso, a partner at Sidney Austin LLP in Washington, told Bloomberg Environment in an email. “If EPA gives [power plants] relief from new source [review]—why not give the same relief to everyone?”
The Trump administration’s broader Aug. 21 proposal (RIN:2060-AT67) sets carbon dioxide limits based on how much individual power plants can improve their heat rate, or efficiency—much narrower than the Obama administration’s rule, which also urged utilities to switch from coal to cleaner-burning natural gas and to renewable energy. The new source review changes are tucked into the Trump administration’s broader proposal.
‘Life of Its Own’Industry trade groups—including the American Petroleum Institute, the American Fuel & Petrochemical Manufacturers, and the U.S. Chamber of Commerce—have long argued the new source review program keeps plants from making efficiency improvements they otherwise might make out of concern they would trigger the permitting requirements.
The proposed change to use an hourly rate would ease the program, at least for power plants, because it relieves them of the task of projecting what their future annual emissions might be. It also could ultimately allow power plants that undergo efficiency projects to operate more frequently while remaining below the threshold triggering requirements to obtain a permit and install controls to capture any additional pollution an efficiency modification may cause.
The permitting program “has been applied in conflict with the kind of measures states will require power plants to deploy to meet” the requirements of the EPA’s replacement proposal, Bill Wehrum, EPA’s air chief, told reporters on an Aug. 21 press call.
For example, the annual test for determining emissions increases might show a bump for a project that produces an overall environmental benefit, Wehrum said. Adding the short-term, hourly test for emissions increases now allows the new source review program to work in concert with encouraging efficiency improvements at power plants, he added.
Environmental advocates and former Obama EPA officials said the new source review provision could do just as much, if not more, damage than the weakened carbon limits the agency proposed.
“This isn’t billed as a new source review rule, but it ought to be,” Gina McCarthy, former Obama EPA administrator who led the agency when it crafted the Clean Power Plan, told reporters on an Aug. 20 press call.
The proposed change “is something that could take on a life of its own when it looks like it’s just a small ancillary thing,” she said.
The adjustments to new source review could effectively give coal-fired power plants “another significant lease on life” by allowing them to operate more efficiently and frequently without having to update their pollution controls, Janet McCabe, who was acting EPA air chief during the Obama administration’s second term, told reporters.
Broader Permitting EffortThe proposed change adds to a larger EPA effort to make the new source review program more industry-friendly, largely through incremental guidance and rulemaking.
For example, the EPA already has a rule under White House review that would allow factories, refineries, and power plants to combine emissions increases from separate—yet related—projects for permitting purposes. The agency also issued guidance in December 2017 saying it won’t second guess industry estimates of their pollution increases.
Those changes and the adjustments made to new source review requirements in the EPA’s Clean Power Plan replacement proposal will need to work in tandem, Dan Byers, vice president for policy at the U.S. Chamber of Commerce Global Energy Institute, told Bloomberg Environment.
Industry representatives said the EPA’s proposed new source review change would provide broader benefit.
“Industry believes that if it can reduce pollution generation on a per unit of product basis and not increase the potential to emit, then the U.S. gets the benefits of those products (electricity, steel) for less pollution per unit, which benefits everyone,” Eric Hiser, a partner with Phoenix-based Jorden Hiser & Joy PLC , told Bloomberg Environment in an email.
While the change doesn’t yet apply to them, the refining and manufacturing sectors see an indirect benefit from potentially cheaper electricity costs, Hiser added.
The Energy Information Administration in 2017 ranked the industrial sector—which includes utilities, manufacturers and refiners—as the third-largest consumer of electricity, after the residential and commercial sectors.
Legal VulnerabilityIt isn’t unusual for the power sector to have new source review rules separate from those of other industrial sectors, Kevin Poloncarz, an attorney with Covington & Burling LLP in San Francisco, told Bloomberg Environment.
But Poloncarz, who represents Calpine Corp., National Grid,and others that supported the Clean Power Plan, suggested the EPA might have a better chance justifying the change to an hourly rate as opposed to a wholesale exemption for power plants’ efficiency projects. That was something the agency had sought input on when crafting the Aug. 21 proposal.
The EPA lost lawsuits challenging Bush-era regulations attempting to exempt pollution control projects from new source review.
How to calculate an emissions increase isn’t fully defined in the statute, Poloncarz added, so the EPA would be afforded more discretion in that area.
But environmentalists argued options already exist for industry to avoid new source review requirements when making efficiency upgrades.
For example, facilities can agree to cap their emissions at the annual limit required by the permitting program, Andres Restrepo, an attorney with the Sierra Club, told Bloomberg Environment. The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Environment is operated by entities controlled by Michael Bloomberg.
The proposed change is a “real wolf in sheep’s clothing—dressing up a life-extension program for old coal plants as a rule to address climate,” Jay Duffy, an attorney with the nonprofit Clean Air Task Force, told Bloomberg Environment.
https://news.bloombergenvironment.com/environment-and-energy/refiners-manufacturers-back-air-permit-changes-for-power-plants-1
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Climate Rule Litigation: Here We Go Again?
Aug 22, 2018 | E&E Energywire
By Ellen M. Gilmer
New legal battles are already brewing over EPA's plans to replace former President Obama's landmark Clean Power Plan with a drastically scaled-back effort to cut carbon emissions from the power sector.
The Trump administration's proposal, dubbed the Affordable Clean Energy rule, discards the Clean Power Plan's multifaceted approach to cleaning up the power grid and instead focuses narrowly on making coal-fired power plants more efficient.
Opponents argue that the ACE rule will do little, if anything, to fight climate change because it will allow otherwise declining coal plants to survive longer and power the grid more often. Critics say acting EPA Administrator Andrew Wheeler's proposal is riddled with loopholes and faulty judgment that render it both useless and unlawful.
"Today's Trump-Wheeler proposal is an abdication of EPA's legal and moral responsibility to protect our country, our states and our communities from the worst impacts of the climate crisis," Sierra Club attorney Joanne Spalding told reporters yesterday. "If EPA moves forward with this rollback, we are confident that it will be struck down in court."
But Wheeler says the ACE rule will help power-sector emissions continue to decline, and he maintains that the narrower approach is necessary because it stays within EPA's authority under the Clean Air Act. Clean Power Plan opponents have long argued that the act requires air rules to zero in on power plants, rather than making changes to the broader power grid.
"It respects the rule of law and will enable states to build affordable, clean and reliable energy portfolios," Wheeler said after unveiling the proposal yesterday. "ACE operates within the four corners of the Clean Air Act. The era of top-down, one-size-fits-all federal mandates is over."
Here's what to know about the courtroom fights to come.What's the Trump administration's legal justification for replacing the Clean Power Plan?
Trump officials give two key legal reasons for scrapping the Clean Power Plan in favor of the ACE rule: to give state governments a greater role in planning emissions cuts and to refocus oversight on power plants.
EPA air chief Bill Wehrum told reporters yesterday that the proposed regulation would "redefine" the relationship between states and the federal government.
"The Clean Power Plan was very federal-heavy," he said. "It was essentially a federal mandate that left the states very little latitude as to what they would do under the program and how they would do it. We believe that's not the correct way to implement this part of the law, and that's not what Congress intended."
The ACE rule gives states the primary authority to decide how best to cut emissions at power plants — guided by a list of "candidate technologies" recommended by EPA. States must submit their plans for EPA approval within three years. The regulation does not set a minimum standard for emission reductions.
The narrower focus on power plants is also a key feature of the proposal, Wehrum said. That stems from a Clean Air Act standard requiring EPA to use the "best system of emission reduction" in its regulations for existing sources. Obama's EPA thought the best system was a sectorwide approach; President Trump's EPA thinks the law requires that regulation be limited to specific technology at power plants.
"We believe that the law requires that this program be implemented to focus on emissions controls and other measures that can be applied at the source to particular power plants," he said. "And this is a substantial difference from the Clean Power Plan, which reached beyond power plants and sought to regulate the electric power sector as a whole."Who's opposed to the new plan?
Clean Power Plan supporters quickly set to work yesterday dissecting the Trump administration's proposal and threatening future legal action.
Among them: Democratic lawmakers and a throng of environmental groups flooding inboxes with fact checks, legal analyses and economic breakdowns of the ACE rule. Natural Resources Defense Council President Rhea Suh, for example, vowed that her group will "fight this dangerous retreat with every tool available."
Former Obama officials, clean energy groups and attorneys general from states favoring further climate action were also in the mix.
"If the Trump administration's proposal to dismantle the Clean Power Plan is adopted, we will work with our state and local partners to file suit to block it — in order to protect New Yorkers, and all Americans, from the increasingly devastating impacts of climate change," New York Attorney General Barbara Underwood (D) said in a statement.What are opponents' key legal objections?
State and environmental attorneys argue that the ACE rule falls far short of EPA's obligations under the Clean Air Act.
Because the agency determined in 2009 that greenhouse gases endanger public health, EPA must take action to regulate sources. But critics say the new proposal doesn't do that effectively and does not meet the Clean Air Act standard of a "best system of emission reduction."
"So, the Clean Air Act requires EPA to define the best system of emission reduction," said Richard Revesz, director of New York University's Institute for Policy Integrity. "Instead, today EPA has identified a system of emission reduction that is, at best, mediocre, far from 'best.' Most likely, the system EPA has defined is downright counterproductive."
Opponents of EPA's new plan are also sounding alarms about part of the ACE rule that changes how the agency's New Source Review permitting program works — ultimately allowing more emissions of pollutants tied to premature deaths (Greenwire, Aug. 21).
Revesz said EPA may face a steep battle in the courtroom explaining why it opted for an approach that leads to such lower levels of environmental protection.
NRDC attorney David Doniger noted that EPA has faced multiple recent courtroom losses on other efforts to roll back regulations, and he expects the ACE rule to follow the same course.
"We are confident the courts will rebuke the Trump administration as they have with increasing frequency and find this proposal an illegal evasion of EPA's responsibilities under the Clean Air Act," he said.How will the litigation play out?
A courtroom battle over the ACE rule, if finalized, is inevitable.
But it will take a while before it's time for litigation. EPA has set a 60-day comment period for the proposed ACE rule, but experts think the rulemaking process could take as long as a year. Legal action likely won't begin until the rule is finalized. Doniger noted that court proceedings will then play out to the end of Trump's term.
The lawsuits will land in the U.S. Court of Appeals for the District of Columbia Circuit. That's the same court that considered but never resolved litigation over the Clean Power Plan. The massive case was placed in abeyance last year after Trump's EPA told the court it was working on a rollback.
Clean Power Plan supporters have repeatedly urged the D.C. Circuit to lift the abeyance and decide the many legal questions in play about EPA's Clean Air Act authority. Separately, they've encouraged the Supreme Court to revisit its 2016 decision freezing implementation of the Obama rule (Climatewire, July 31).
Sean Donahue, an attorney who represents a coalition of environmental groups in that case, said he's doubtful the Supreme Court will revisit the Clean Power Plan stay. He said environmentalists will continue pushing the D.C. Circuit to lift the abeyance of the litigation.
"We continue to believe that the case that was argued nearly two years ago should be decided, in part because a lot of the issues about what EPA can do under the statute are the same," he said.How is EPA responding to the pushback?
EPA officials say they're feeling pretty confident about their odds in the courtroom.
"An important part of what we're doing here is getting us back in our lane," said Wehrum, the air chief. "We believe the CPP went beyond EPA's legal authority in some very fundamental and important ways."
He argued that the dispatch of power plants and the design of power grids should stay in the control of state governments. Wehrum and Wheeler both pointed to the Supreme Court stay as support for their argument that judges would agree.
"We think we're on very firm legal ground," Wehrum said. "In fact, we think we're on much firmer legal ground than the CPP was."
https://www.eenews.net/energywire/2018/08/22/stories/1060094917
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Power Plant Emissions Proposal Relies on Science EPA Wants to Shun
Aug 22, 2018 | BNA Daily Environment Report
By Eric Roston
The Environmental Protection Agency’s proposal to loosen power-plant regulations relies in part on scientific studies that the agency itself is trying to exclude from rulemaking.
Former EPA Administrator Scott Pruitt in April proposed a regulation that would break with decades of federal practice by limiting the science available to regulators. He called the initiative the “Strengthening Transparency in Regulatory Science.”
The proposal, which is still pending, was designed to make sure that all data from studies used by the agency should be in the public domain. Such a rule could prevent the EPA from consulting many basic studies that link air pollution and premature deaths because they rely on public health data provided anonymously to protect people’s identities.
But the EPA’s proposed replacement to former President Barack Obama’s climate-change fighting Clean Power Plan was accompanied by a 300-page analysis that may rely in part on just such studies to estimate health impacts. For example, it cites extended follow-up articles to two landmark studies, the Harvard “Six Cities” research on air pollution and mortality and corroborating work by the American Cancer Society.
Andrew Rosenberg, director of the Union of Concerned Scientists’ Center for Science and Democracy, says at least three studies in data tables in the proposal might be unusable if the science rule were in effect.
The EPA documents say “implementing the proposed rule is expected to increase emissions of carbon dioxide (CO2) and increase the level of emissions of certain pollutants in the atmosphere that adversely affect human health.”
The agency concluded that as many as 1,630 more people may die prematurely from heart and lung disease each year by 2030 if its new proposal goes into effect.
The EPA press office did not respond to an email asking about the transparency rule.
https://news.bloombergenvironment.com/environment-and-energy/powerplant-emissions-proposal-relies-on-science-epa-wants-to-shun
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7 Takeaways from EPA’s Proposed Coal Pollution Rule
Aug 22, 2018 | PoliticoPro
By Alex Guillen
The Trump administration’s proposed carbon rule for coal plants ratchets back the scope and emissions reductions of the Obama administration’s original rule while questioning EPA’s ability to take more stringent action on climate change.
The energy policy world will be reading the proposal’s fine print and checking EPA’s math for months. Here are key policy points to know while delving into the details of EPA’s proposal.
Changes to NSR permitting
The proposal includes changes to a fundamental EPA permitting program designed to protect improvements in local air quality.
Under the program known as New Source Review, power plants owners cannot build a new facility or renovate an existing one until they calculate whether the change will lead to an increase in annual emissions — and if so, to get a permit from state regulators, a process that takes time and money. NSR was designed to prevent areas that meet air quality standards from backsliding. But Republicans and industry groups have long complained that the NSR program can prevent them from upgrading power plants to run more efficiently if those changes would allow the plant to run more often, leading to an increase in absolute emissions.
The agency has proposed two alternative tests that measure emissions increases on an hourly basis under which plants can more easily show efficiency gains as opposed to annualized accounting. That change would mean that “fewer sources will trigger major NSR [requirements] under an hourly emissions increase,” EPA says in its proposal.
EPA said it is concerned that some coal plants would choose to shut down “in advance of the end of their expected useful life” rather than pay to go through NSR permitting for new efficiency technologies under the replacement carbon proposal, known as the Affordable Clean Energy rule. States would have the option to choose between the existing annualized test and the hourly test alternative.
The permitting changes — at least for now — will apply only to coal plants, according to EPA air chief Bill Wehrum, who said the proposal is designed to allow NSR and the ACE rule to “operate in concert rather than in conflict with each other."
Sources from a wide variety of sectors emitting a range of pollutants are subject to the NSR permitting requirements, and likely will watch this program to see if similar changes might apply to their sectors. EPA in recent months has made other key changes to the wider NSR program easing enforcement and helping sources to avoid the more stringent permitting requirements.
Miles Keogh, executive director of the National Association of Clean Air Agencies, which represents state air regulators, says EPA's proposal would open the door to more air pollution.
“The NSR connection is huge," he said in an email. "It makes it hard for state utility commissions to deny pollution-increasing investments because they generally approve spending money (and earning a return) on federal requirements like environmental rules. That’ll undermine a lot of states with monopoly utilities that have invested money in clean energy, because now they’ll have a hard time not undermining their own investments."
Up to 1,400 premature deaths by 2030
EPA estimates its rule could lead to as many as 1,400 additional premature deaths per year by 2030 compared to a scenario in which the Clean Power Plan was implemented.
The proposal's Regulatory Impact Analysis includes several different methodologies for counting premature deaths under various compliance scenarios caused primarily by increases in soot and ozone pollution that impacts cardiovascular health.
One of those methodologies projects premature deaths increase to an upper range of 1,400 annually by 2030 under two of the three compliance scenarios, and up to 1,200 under the third. The analysis also says the figure could be as low as 400 to 470, depending on how states comply.
Those scenarios are still better than a scenario without any climate rule. EPA's analysis places the range in that scenario at 540 to 1,600 premature deaths per year by 2030.
EPA also considered nondeath health impacts, projecting a range of increases in benchmarks such as hospital admissions, nonfatal heart attacks, asthma attacks, lost work days and school absences.
Asked about the premature death projections, Wehrum said that the ACE rule is meant to deal with carbon dioxide, not pollutants like sulfur dioxide or particulate matter that more directly impact human health and which EPA already regulates under other programs. “We’re implementing the law as we believe Congress intended it to be implemented,” he said.
Where are the jobs?
While President Donald Trump portrays his regulatory rollbacks as a job-creating strategy, EPA is more circumspect in its predictions about the replacement power plant rule.
The agency says the “overall employment impacts are expected to be relatively small,” thanks to a strong economy, even as local effects may be more pronounced in some regions.
“If the U.S. economy is at full employment, as current economic conditions indicate is likely, even a large-scale environmental regulation is unlikely to have a noticeable impact on aggregate net employment,” EPA notes.
In general, EPA says coal jobs may rise while natural gas, nuclear and renewable jobs may fall in response to the new proposal, but EPA does not offer firm numbers. The analysis cites recent job losses in coal-dependent states such as West Virginia and Wyoming and notes its “particular concern” about job losses among workers in declining industries or isolated areas where unemployment can be more difficult to escape.
“If potentially dislocated workers are vulnerable, for example as those in Appalachia likely are, besides experiencing persistent job loss as already mentioned, earnings can be permanently lowered, and the wider community may be negatively affected,” EPA writes.
No minimum requirements, but states can't totally opt out
The proposed rule doesn’t set specific emissions targets for states to meet.
“What states are required to do is take our recommendations, the so-called candidate technologies we’ve identified in the proposed rule, and make a rational, fact-based decision for each of the affected units in their jurisdiction,” Wehrum said.
That means states have at least some wiggle room to justify setting more or less stringent requirements for coal plants within their borders.
There’s also no way to “opt out” of the program completely, according to Wehrum. “It’s not true that the program would allow states to say, ‘Well, we looked at this and decided we don’t want to do anything here,’” he said.
EPA likes trading, unsure it’s allowed
Allowing trading between coal plants within a state might help make the program less expensive and more effective, like EPA’s successful acid rain trading program, Wehrum said. But EPA isn’t sure that trading actually fits within the rigid, limited structure of the rule.
The Clean Power Plan allowed states to consider trading within and across state lines as a way to identify the cheapest compliance options.
But the new proposal says EPA is worried that trading under the ACE rule would be “inconsistent with our proposed interpretation of the [‘best system of emissions reduction’] as limited to measures that apply at and to an individual source.”
“There’s a tension as we interpret the law,” Wehrum said.
The proposal also says EPA is considering allowing states to average emissions among generating units, but only within the same facility, such as coal-fired power plants with multiple discrete boilers. The agency is taking comment whether and how either strategy could be incorporated into the final rule.
Trend away from coal will continue
Wehrum tacitly acknowledged that even without the Obama administration’s Clean Power Plan, states and utilities are headed in the general direction of that rule anyway.
“We believe there’s going to be very little difference as to how CPP would play out versus how this proposed rule would play out,” he said. “The biggest reason is things have changed a lot since the CPP was put in place. The industry continues to transform in front of our eyes, there continue to be big shifts in the types of generating plants that power plants operators are building and operating.”
That larger economic trend away from coal and toward gas and renewables is the strategy the Obama EPA relied on in crafting the Clean Power Plan.
The tech menu
States can choose from a menu of “candidate technologies” to improve heat-rate efficiency at power plants.
The options are: Neural network/intelligent sootblowers; boiler feed pumps; air heater and duct leakage control; variable frequency drives; blade path upgrades for steam turbines; redesign or replacement of economizer; and improved operating and maintenance practices.
Depending on the size of the coal plant and the technologies chosen, those options can lead to efficiency gains of 0.1 percent to as high as 2.9 percent, according to EPA. The choice of technology can be influenced by the remaining useful life of a plant. For example, at older facilities, EPA argues it might not make sense to invest in more effective, more expensive technologies that might not recoup their expenses before the plant shuts down.
https://subscriber.politicopro.com/energy/article/2018/08/7-takeaways-from-epas-proposed-coal-pollution-rule-745640
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Future President Could Re-Enter Paris Pact Without Carbon Rule
Aug 22, 2018 | E&E Climatewire
By Jean Chemnick
Yesterday's move by the Trump administration to scrap President Obama's premier climate rule wouldn't make it harder for a future administration to rejoin the Paris Agreement.
"It is not a barrier to re-entry," said Todd Stern, the Obama-era official who led the negotiations for the United States in Paris 3 ½ years ago.
The Clean Power Plan was a cornerstone of Obama's pledge to the world when his administration joined the Paris Agreement. The plan, which is being replaced under President Trump, sought to cut emissions in the U.S. power sector 32 percent by 2030.
It seems that a future administration would not be hampered by its revocation.
That's due to a feature that Stern and his team spent years helping to build into the Paris deal. A nation's commitment is a political promise, not a legal contract.
There are some legal obligations for members of the Paris deal, like a requirement to issue new commitments, known as nationally determined contributions, along a regular schedule. Even failure to comply with that might not be a dealbreaker in this case, said Stern, who believes other nations might lend some flexibility to the United States if an incoming president were to miss the NDC deadline in 2020.
"If, on Nov. 3, 2020, the Democrats win, I would imagine that the countries of the world would be quite happy to cut the U.S. some slack and let them put in a target in 2021," he said.
That assumes Trump makes good on his decision 14 months ago to withdraw the United States from the 2015 deal. The process would be completed around the time of the 2020 presidential election.
At the time, Trump claimed that continued membership in Paris would obligate the United States to keep domestic policies that he called economically damaging, like the Clean Power Plan. EPA proposed a much laxer replacement for the rule yesterday.
But there is virtually no relationship between Paris membership and the power rule. While the United States promised to cut its greenhouse gas emissions between 26 and 28 percent compared with 2005 levels by 2025 as part of the Paris accord, there's no mechanism to penalize a nation that misses its targets. The NDC, a document the State Department transmitted to the U.N. climate body ahead of the Paris summit in 2015, mentions plans to complete "regulations to cut carbon emissions from new and existing power plants." That's as specific as it gets.
A Rhodium Group analysis released in June shows that the United States was on track to miss its Paris commitment by several percentage points even with Obama-era regulations in place. Rhodium currently estimates the United States could cut emissions between 12 and 20 percent compared with 2005 by 2025, a far cry from the promised 26 to 28 percent.
And while the net effect of Trump's rollbacks could put the NDC's goal further out of reach, that might be countered by market forces, subnational policies and unforeseen developments.
"A lot can happen in a year, let alone a decade," the Rhodium Group observes.
If, in 2021, a president is inaugurated who wishes to re-enter the United States into the Paris Agreement, the incoming administration would be tasked with writing a new NDC for 2030. It would be based on prospective, rather than past, actions.
David Waskow, director of the World Resources Institute's International Climate Initiative, said the world would cheer if the United States came back to Paris.
“Many governments are very committed to Paris as a joint endeavor, and then also for domestic reasons are really committed to climate action, so I think that if the U.S. were in fact to re-enter Paris, and do it in credible way with strong action, would be welcomed back into that fold,” he said.
https://www.eenews.net/climatewire/2018/08/22/stories/1060094887
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Grasping for Straws in California May Get Harder as Bill Proceeds
Aug 21, 2018 | BNA Daily Environment Report
By Emily C. Dooley
California restaurant owners face fines of up to $300 for handing out single-use plastic straws, unless customers specifically request, them under a bill passed by the state’s Senate.
The California Senate Aug. 20 voted 25-12 in support of a bill that seeks to remove plastic from the restaurant scene. Violations can be up to $25 per day, capped at $300.
Supporters say the ban on straws will help reduce plastic pollution, while opponents call it one more unnecessary regulation and say there are bigger issues to solve.
Simple First StepBut 25 percent of fish sold in California seafood markets contain some plastic, and reducing plastic straw use is one way to address the issue, Sen. Henry Stern (D) said on the Senate floor.
“This is a very simple first step to reducing a big problem,” he said, describing the ban as “empowering the consumer” rather than a mandate.
Republican state Sen. Joel Anderson, who opposes the bill, pointed out that the State Capitol’s in-house cafeteria provides plastic straws. Sen. Jim Nielsen (R), another opponent, said the bill “should not be preoccupying our time.”
The bill must go back to the Assembly to consider and vote on Senate amendments and, if approved, go to Gov. Jerry Brown (D) for signature. His office declined to comment on whether he would sign it.
“We’ve gotten one step closer to reducing plastic pollution from single use plastic straws,” one of the bill’s authors, Assemblyman Richard Bloom (D) said in a statement to Bloomberg Environment Aug. 20. “For decades, we have thoughtlessly dumped single use plastics into our environment, damaging the health of our oceans and harming the wildlife that depends on it.”
The Assembly session ends Aug. 31.
The San Francisco Board of Supervisors passed a ban July 31 on selling single-use serving utensils and containers, including straws, that are made with fluorinated chemicals. The mayor approved the regulation Aug. 10.
https://news.bloombergenvironment.com/environment-and-energy/grasping-for-straws-in-california-may-get-harder-as-bill-proceeds
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