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AM ACC Clips Report - September 5, 2018

Industry and Association News

(ACC Mentioned) Congress Passes Bill Rolling Back Some Tariffs
Sep 4, 2018 | Washington Examiner
By Sean Higgins

On a voice vote and with little fanfare the House passed legislation Tuesday that would roll back tariffs on an estimated 1,660 products from China, mostly chemicals.
(ACC Mentioned) Cancer Risk and Emissions: Dems Speak out, Call For EPA Funding
Sep 5, 2018 | Patch.com
By Andrea Earnest

Several political leaders and candidates gathered outside Sterigenics International Inc., on Tuesday morning after reports that emissions from the facility could contribute to an increased risk of cancer in the area.
(ACC Mentioned) White House Taps Lawyer to Lead EPA Chemicals Office
Sep 4, 2018 | Chemical & Engineering News
By Britt Erickson

President Trump’s latest choice to lead the U.S. Environmental Protection Agency’s chemicals office, Alexandra Dapolito Dunn, is much less controversial than his first choice, Michael Dourson.
(ACC Mentioned) Sustainable Plastic Solutions Crucial for Global Challenges
Sep 4, 2018 | Saudi Gazette
By Abdulwahab Al-Sadoun

Across the world today, plastic pollution is perhaps the single most debated topic.
Brett Kavanaugh: Good News for Polluters, Bad News for Public Health
Sep 5, 2018 | Environmental Working Group
By Scott Faber

One reason to think twice before confirming Brett Kavanaugh to the critical open swing seat on the Supreme Court is his long record of adopting extreme views to defend polluters.
4 Takeaways from Kavanaugh's First Day
Sep 5, 2018 | E&E Daily
By Nick Sobczyk and Ellen M. Gilmer

Democrats on the Senate Judiciary Committee gathered outside the Capitol yesterday morning and promised to attend the Brett Kavanaugh hearing "under protest."
EPA Rejects OIG Call For 'Threat Analysis' To Justify Pruitt Security Team
Sep 5, 2018 | Inside EPA
By David LaRoss

EPA is rejecting calls from its Office of Inspector General (OIG) to pursue a “threat analysis” and take other steps to justify the agency's use of a round-the-clock security detail to protect former Administrator Scott Pruitt, leaving unresolved disputes about the merits of spending millions of dollars on the increased security team.
Climate Skeptic to Join NSC, Advise Trump on Emerging Technologies
Sep 4, 2018 | The Hill - E2 Wire
By Miranda Green

President Trump is appointing William Happer, a well-known climate skeptic, to his National Security Council (NSC).

LCSA News

Drinking Water Utilities Target EPA's Narrow Approach On TSCA Analysis
Sep 4, 2018 | Inside EPA
By Maria Hegstad

A group of drinking water utilities is criticizing EPA's narrow approach to regulating chemicals under the new Toxic Substances Control Act, charging that the agency's decision to reduce scrutiny of uses already regulated by other EPA programs could result in increased risks of drinking water contamination.
House Democrats Again Seek TSCA Review Hearing
Sep 4, 2018 | Inside EPA

House Democrats are renewing their calls for a committee hearing on EPA's implementation of the revised toxics law, signaling the likelihood that such a hearing will be a priority if Democrats take control of the House in the upcoming November elections, though Trump administration plans to nominate a toxics office chief may delay that.
EPA Needs To Get its SNURs in Order Under TSCA
Sep 4, 2018 | Environmental Defense Fund
By Richard Denison

On Friday EDF submitted comments to EPA on a batch of Significant New Use Rules (SNURs) the Environmental Protection Agency (EPA) published on August 1 pursuant to the Toxic Substances Control Act (TSCA).

Chemical Management News

New Jersey Sets Strictest Limit Nationwide for Fluorinated Chemical
Sep 4, 2018 | BNA Daily Environment Report
By Sylvia Carignan

New Jersey set the lowest enforceable limit in the country for a fluorinated chemical, establishing a precedent that will capture the attention of other states and the U.S. EPA.
Preservative Pinch Shows Need for Options, Supply Chain Preparation
Sep 4, 2018 | BNA Daily Environment Report
By Pat Rizzuto

An ongoing global shortage of a chemical used in inks, disinfectants, cleaning, and many other products shows why manufacturers need backup plans to ensure they can meet their commercial obligations, an attorney told Bloomberg Environment.
Bayer Says More Americans Are Alleging Weed Killers Cause Cancer
Sep 5, 2018 | The Wall Street Journal
By Ruth Bender

Bayer AG said the number of American plaintiffs alleging the company’s newly acquired weed killers cause cancer has risen sharply, adding to concerns about potentially lengthy and costly litigation stemming from its acquisition of Monsanto.
Illinois Plans to Implement Stricter, More Expensive Lead Rule
Sep 4, 2018 | BNA Daily Environment Report
By Stephen Joyce

An Illinois proposal to tighten lead standards and keep the dangerous metal at lower blood levels would also increase maintenance costs for Illinois property owners.

Energy News

Shell's Cracker Project Progressing After Administration Waives Steel Quota
Sep 4, 2018 | Natural Gas Intelligence
By Jamison Cocklin

Shell Chemical Appalachia LLC can continue constructing its multi-billion dollar ethane cracker in western Pennsylvania without delay after the Trump administration last week eased restrictions on imported steel from South Korea, Argentina and Brazil.
Colo. Says It's Cut Methane Leaks as Trump Eases U.S. Rules
Sep 5, 2018 | AP (In E&E Energywire)
By Dan Elliott

The Trump administration is rolling back some U.S. regulations on climate-changing methane pollution, calling them expensive and burdensome, but Colorado says its rules are working — and they have industry support.
'Second Wave' of Export Projects to Be Decided by End of 2019
Sep 5, 2018 | E&E Energywire
By Jenny Mandel

Federal regulators last week laid out a timeline for permitting decisions on 13 pending liquefied natural gas export projects, issuing a memorandum of understanding that they said would streamline and speed up environmental reviews for the complex projects.
Democrats Look to Amend Bill to Push Small-Scale Exports
Sep 5, 2018 | E&E Daily
By Sam Mintz

The House will debate two Democratic amendments this week to a bill aimed at expediting small-scale natural gas exports.
Details Remain Murky on Tentative U.S.-Mexico Trade Pact
Sep 4, 2018 | Natural Gas Intelligence
By Charlie Passut

After President Trump declared in late August that the United States and Mexico had reached a tentative trade agreement that could replace the North American Free Trade Agreement (NAFTA), the energy industry was still scrambling for details.

Chemical Security News

Appellate Court Pulls Order to Quickly Implement RMP
Sep 4, 2018 | Inside EPA

A federal appellate court has withdrawn its order striking down the Trump EPA's delay of an Obama-era rule tightening facility safety requirements, saying it “inadvertently” issued its mandate, a procedural step finalizing its ruling, following environmentalists' request and will give EPA and other litigants one day to oppose advocates' request.
DOE, Industry to Prepare Cyber Emergency Plans
Sep 5, 2018 | E&E Energywire
By Peter Behr

The Department of Energy and U.S. grid operators need detailed emergency operating plans to combat a state-backed cyberattack, says a former Defense Department official.

Transportation and Infrastructure News

With Pipelines Full, Oil and Gas Companies Turning to Trucks, Rail
Sep 4, 2018 | Houston Chronicle
By Rye Druzin

Oil producers in the Permian Basin, dealing with a shortage of pipelines, are increasingly turning to trucks and rail to ship the flood of crude from the West Texas oil field to refineries and export terminals on the Gulf Coast.

Environment News

Dire Climate Change Warnings Cut from Trump Power-Plant Proposal
Sep 4, 2018 | BNA Daily Environment Report
By Jennifer A. Dlouhy

Warnings about potentially severe consequences of climate change were deleted from a Trump administration plan to weaken curbs on power plant emissions during a White House review.
CPP Backers Renew Push For D.C. Circuit To Issue Long-Delayed Ruling
Sep 4, 2018 | Inside EPA
By Lee Logan

States and environmentalists that support the Obama EPA's Clean Power Plan (CPP) utility greenhouse gas rule are renewing their calls for an appellate court to issue its long-delayed ruling on the merits of the policy, a move that likely would create hurdles for Trump EPA efforts to replace the rule with a much narrower measure.
9th Circuit Backs Approval of EPA Mont. Plan
Sep 4, 2018 | E&E News PM
By Sean Reilly

A federal appeals court has endorsed EPA's approval of a Montana air quality plan, notwithstanding cloudiness in the language surrounding a key aspect of the New Source Review permitting program.
17 States Urge Court to Reject EPA Bid to Freeze Litigation
Sep 4, 2018 | E&E News PM
By Jeremy P. Jacobs

Seventeen states and other parties urged a federal appeals court today to reject EPA's request to keep litigation concerning the Clean Power Plan on hold.
Massachusetts Emissions Rules Apply to Power Plants, Court Says
Sep 4, 2018 | BNA Daily Environment Report
By Adrianne Appel

Massachusetts electric power producers are subject to the state’s carbon emissions caps, the state’s highest court ruled Sept. 4.

Industry and Association News

(ACC Mentioned) Congress Passes Bill Rolling Back Some Tariffs

Sep 4, 2018 | Washington Examiner

By Sean Higgins

On a voice vote and with little fanfare the House passed legislation Tuesday that would roll back tariffs on an estimated 1,660 products from China, mostly chemicals. The legislation, dubbed the Miscellaneous Tariffs Act, previously passed the Senate last month and now heads to the White House, which has not taken a public position on it.
The bill’s supporters argue that the tariffs are outdated and protect few products made domestically and therefore drove up costs for the manufacturers that need them. A Reuters analysis said that the tariffs included just 145 items made in the U.S.
"Requiring manufacturers to pay tariffs on products that simply aren't made here runs up their manufacturing costs and puts them at a competitive disadvantage," said Rep. Kevin Brady, R-Texas, chairman of the House Ways and Means Committee.
The legislation has broad bipartisan support. Rep. Bill Pascrell, D-N.J., co-sponsored it. "I will always support American manufacturers and anything they helps make them competitive," he said, though he did note that the countries having their tariffs lifted were not reciprocating with similar actions.
Business groups praised it. The American Chemistry Council said the tariffs "unnecessarily raise the costs of those inputs, deter innovation and economic growth, and ultimately weaken our country’s competitive advantage. Eliminating tariffs just makes good economic sense."
The legislation now goes to president's desk to be signed, but it is unclear what President Trump will do. The administration has not opposed the bill but has aggressively used new tariffs or the threats of them to as part of its trade policies and therefore may not be keen to remove existing ones. A White House spokesman could not be reached for comment.
https://www.washingtonexaminer.com/policy/economy/congress-passes-bill-rolling-back-some-tariffs

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(ACC Mentioned) Cancer Risk and Emissions: Dems Speak out, Call For EPA Funding

Sep 5, 2018 | Patch.com

By Andrea Earnest

Several political leaders and candidates gathered outside Sterigenics International Inc., on Tuesday morning after reports that emissions from the facility could contribute to an increased risk of cancer in the area. A recent report from the Agency for Toxic Substances and Disease Registry, which is a division of the CDC, stated, "If measured and modeled data represent typical EtO ambient concentrations in ambient air, an elevated cancer risk exists for residents and off-site workers in the Willowbrook community surrounding the Sterigenics facility. These evaluated risks present a public health hazard to these populations."
Now, political leaders are demanding that President Donald Trump and Congress support the Environmental Protection Agency, according to a release. Some local leaders and opponents are also blasting 6th District Congressional Rep. Peter Roskam, accusing him of staying silent on the issue.
Rep. Bill Foster (D-11), along with Roskam's Democratic opponent Sean Casten, 17th District Cook County Board candidate Abdelnasser Rashid, 41st District State Senate candidate Bridget Fitzgerald, 82nd District State Representative candidate Tom Chlystek and others called for the president and Roskam to fully fund and protect the EPA so it can monitor and address incidents like the one at Sterigenics in Willowbrook.
According to a release, Casten called for Alexandra Dapolito Dunn, the head of EPA Office of Chemical Safety and Pollution Prevention, to visit Sterigenics immediately.
Casten also called out current Rep. Roskam for his silence on the issue and for failing to protect the EPA, according to a release.
"Peter Roskam's silence over Sterigenics is astonishing," Casten said in a release. "I'm a scientist who believes in facts, and the facts show ethylene oxide - the toxin emitted from Sterigenics - is giving people cancer in the Sixth Congressional District. Instead of protecting the EPA, Roskam voted to gut the board that reviews the very reports that showed ethylene oxide increases the risk of cancer 30-fold."
Sterigenics International Inc. uses ethylene oxide to sterilize medical equipment and other products. The sterilization process emits ethylene oxide, and a report from the U.S. National Cancer Institute notes, "Exposure to (ethylene oxide) is highly irritating to the eyes, skin and respiratory tract, induces nausea and vomiting and causes central nervous system depression. Ethylene oxide is mutagenic in humans and chronic exposure is associated with an increased risk of leukemia, stomach cancer, pancreatic cancer and non-Hodgkin lymphoma."
"It appears Peter Roskam only has the well-being of the oil and chemical industry in mind. Instead of acting quickly to do anything to protect residents of Willowbrook and neighboring communities, Peter Roskam has kept silent at the behest of his corporate benefactors like the American Chemistry Council - the same folks who have spent over $200,000 on his re-election," Casten added.
Several Willowbrook families have retained a Chicago law firm to investigate ethylene oxide emissions released. Local political leaders also sent a letter to Sterigenics, which stated it is "imperative that the community be assured that Sterigenics is acting as a good corporate citizen and are taking all steps necessary to protect those who are potentially impacted by the emissions of ethylene oxide from their facility."
Many political leaders have called for the facility to cease operations until further study can be done.
Roskam did not immediately respond to a message from Patch asking for a comment.
https://patch.com/illinois/burrridge/cancer-risk-emissions-dems-speak-out-call-epa-funding

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(ACC Mentioned) White House Taps Lawyer to Lead EPA Chemicals Office

Sep 4, 2018 | Chemical & Engineering News

By Britt Erickson

President Trump’s latest choice to lead the U.S. Environmental Protection Agency’s chemicals office, Alexandra Dapolito Dunn, is much less controversial than his first choice, Michael Dourson.
Unlike Dourson, who has a background working with the chemical industry, Dunn is an environmental lawyer who currently serves as EPA’s regional administrator for New England. Dourson withdrew his nomination last December.
Dunn has experience working with state agencies and universities to shape policy. Before joining EPA, she served as executive director and general counsel for the Environmental Council of the States, a nonpartisan organization that works with state governments on environmental matters. She previously served as executive director and general counsel for the Association of Clean Water Administrators, which works with state agencies on water issues. She has also served as dean of the Environmental Law Program at Pace University’s Elisabeth Haub School of Law, and she taught at the Catholic University of America’s Columbus School of Law and American University’s Washington College of Law.
Dunn holds a B.A. in political science from James Madison University and a J.D. from the Columbus School of Law.
The American Chemistry Council, which represents chemical manufacturers, welcomed Dunn’s nomination, calling her a “well-qualified candidate for this important position.” The group urged the Senate to quickly confirm her nomination. “She has earned a reputation for striving to build consensus and for considering all sides of an issue before acting,” ACC said in a statement.
Environmentalists are urging Dunn, if confirmed, to implement the 2016 revisions to the Toxic Substances Control Act in a manner that protects public health. “Every aspect of the law’s implementation by the Trump Administration has gone badly off the rails, skewed heavily in the chemical industry’s favor at the expense of the public’s health,” Richard Denison, a lead senior scientist at the environmental group, Environmental Defense Fund, claims in a blog post. He is calling for the next head of EPA’s Office of Chemical Safety & Pollution Prevention “to facilitate a fundamental shift in TSCA implementation back to a course that comports with the law, reflects strong science, and is protective of public and worker health, including that of vulnerable subpopulations.”
https://cen.acs.org/people/profiles/White-House-taps-lawyer-lead/96/i36

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(ACC Mentioned) Sustainable Plastic Solutions Crucial for Global Challenges

Sep 4, 2018 | Saudi Gazette

By Abdulwahab Al-Sadoun

Across the world today, plastic pollution is perhaps the single most debated topic. Often singled out as the biggest threat to our environment in modern times, the material itself has become the subject of wide spread criticism, stringent regulations and bans. In May this year, the European Commission proposed a ban on a list of single-use plastic products and their substitution with other more “sustainable” alternatives. In the West and even in the UAE, some big brands and retailers have been swift to ban plastic straws, coffee stirrers and single-use plastic bags in a series of moves aimed at combating marine litter and addressing plastic pollution.

It is important to note that what we’re seeing as a response by the global community to this growing environmental crisis is largely based on emotions and is hardly backed by scientific research. We often hear calls to ban plastic but let us first consider the environmental implications of replacing it with other alternatives. A recent study by Trucost found that using plastic in consumer goods and packaging is nearly four times less harmful to the environment than it would be if plastics were replaced with alternative materials, such as paper and glass. Incidentally, the manufacturing and recycling of these alternative materials is far more energy and water intensive compared to that of plastic.

The study further warns that replacing plastics with alternatives would increase environmental costs from $139 billion based on figures from 2015 to $533 billion annually. Worse yet, it would grow the global warming potential by 130%, energy use by 80%, and waste generation by 55 million tons. The study also estimates that in the Middle East and Africa region, the environmental cost of moving from plastics to alternative materials will jump from $6 per ton to $34 per ton. This would have a significant negative environmental impact, including on several of the Sustainable Development Goals especially SDG 2 (Zero Hunger), SDG 3 (Good Health and Well-Being), SDG 6 (Clean Water and Sanitation), SDG 12 (Responsible Consumption and Production), and SDG 13 (Climate Action).

Lack of waste management infrastructure

Plastic marine litter is a global challenge comprised of complex factors, chief amongst which is the mismanagement of plastic waste due to a lack of adequate land-based infrastructure in emerging economies. As much as three-fourths of land-sourced ocean plastic waste comes from uncollected waste from land, with the remaining originating from gaps in the collection system itself. Among the top contributors of plastic marine litter globally are some of Asia’s fastest growing economies such as Indonesia, the Philippines, Vietnam, Thailand and China, which accounted for a combined 16.7 million metric tons of mismanaged plastic in 2010.

China has recently put a ban on imports of 22 types of lower-grade waste, including plastic waste, creating a real urgency to develop domestic recycling and waste management infrastructure in countries that largely depend on exporting their excess waste to China. With Asia’s largest economy accounting for about two-thirds of global plastic waste imports in 2016, this has created an urgent situation for these countries, in particular the GCC which exports a significant amount of its waste to China. The establishment of a robust recycling and waste management industry in the Arabian Gulf could yield significant benefits for the region, including added value to the local economy, job creation, and achieving the sustainability targets listed in the various national visions by regional governments. According to some statistics, as many as 10 new jobs can be added to the region for each ton of plastic waste generated, summing up recycling, collection, sorting, and transportation, while recycling just one kilogram of plastic waste could save 1.4 kg of CO2 from being emitted into the atmosphere. Saudi Arabia is already taking steps in this direction with the establishment of a recycling sector company via its Public Investment Fund (PIF).

Plastic energy recovery

Beyond recycling, to truly transition into a more sustainable economic model, the Arabian Gulf region must embrace the circular economy concept which is grounded on the principle of maximizing the value and utility of materials over their lifecycle and keeping them inside the value chain for as long as possible, thus minimizing energy and resource consumption. Thanks to its flexibility, as a material, plastic can play a key role in enabling the circular economy. With current technology, as much as 50% of post-use plastics can be reused and recovered for their energy through chemical recycling, with additional 40% being brought back into the cycle through mechanical recycling. Nevertheless, a greater focus will be needed on creating aftermarkets, treatment options, or both, for collected waste. Only through the full implementation of waste management systems can leakage of plastic into the ocean be prevented.

Developing even more efficient plastic packaging and increasing recycling and the conversion of plastic waste to energy can help further curb ocean litter and preserve valuable resources. According to the American Chemistry Council (ACC), recycling HDPE and PET plastics can save enough energy each year to power 750,000 homes. Germany is one positive example to the world as it boasts one of the highest recycling rates globally and saves about Euro 3.7 billion annually due to recycling and waste to energy conversion. Investing in research and development can pay huge dividends to the regional economy, while also enhancing its leadership role in environmental care and global innovation indices.

We live in a world that faces a constant influx of challenges, from rapidly growing populations, to a fast expanding middle class, urbanization, climate change and technological disruptions. These trends are significantly impacting our daily lives, changing the ways we access key necessities such as water, food, housing and transportation, putting a growing amount of pressure on basic services and goods, with the healthcare sector, especially in countries with aging populations, increasingly feeling the strain. Modern healthcare advancements would not be possible without the use of plastic materials that have for decades played a key role in providing essential medical supplies, helping to improve the health of millions of people and saving lives around the world. As it stands, today’s most innovative medical procedures depend on plastic innovations. How much of this can we replace with better alternatives? The answer is “probably none”!

However, as the debate on sustainability continues, some NGOs and brand owners are promoting alternatives that they feel are more environmentally friendly, in the process only replacing single-use plastic with other single-use materials. This is not helping to reduce waste, but only changing its composition. A circular economy that significantly reduces waste can only be achieved through behavioral change and moving from single-use to reusable applications – plastic is still the most sustainable option to promote reusability. In a time of rapid innovation and growing societal challenges, we need to develop sustainable solutions using solid scientific research and facts. The only way forward is to innovate and collaborate to address all global challenges that we, as a society, face today.
http://saudigazette.com.sa/article/542715/BUSINESS/Sustainable-plastic-solutions-crucial-for-global-challenges

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Brett Kavanaugh: Good News for Polluters, Bad News for Public Health

Sep 5, 2018 | Environmental Working Group

By Scott Faber

One reason to think twice before confirming Brett Kavanaugh to the critical open swing seat on the Supreme Court is his long record of adopting extreme views to defend polluters.
A close review of Kavanaugh’s record as a judge on the U.S. Court of Appeals for the District of Columbia reveals that he repeatedly ruled to limit the Environmental Protection Agency’s ability to reduce pollution in air and water. The nonprofit law firm Earthjustice found that of 18 EPA-related cases decided on substantive, rather than procedural, grounds, Kavanaugh ruled in favor of more pollution in 16 cases.Kavanaugh ruled that the EPA lacks the authority to regulate greenhouse gases and ruled against regulating cross-state air pollution.He ruled that the EPA did not have to update carbon monoxide standards and sought to delay rules to limit emissions from the production of cancer-causing PVC. He ruled in favor of dumping coal waste and dumping hazardous wastewithout regard for public health.He ruled that it’s okay for factory farms to foul the air of their neighbors, and argued that it’s okay to rely on the chemical industry’s data.
To support these rulings, Kavanaugh either argued that the EPA should ignore the public health benefits of reducing pollution, that the EPA underestimated or ignored the cost of regulation to polluters, that judges should read statues in ways that limit the EPA’s ability to protect public health, or some combination of all three arguments.
In particular, Kavanaugh concluded in this case that the EPA lacks the authority under the federal Clean Air Act to regulate the greenhouse gases contributing to climate change. While Kavanaugh apparently believes that climate change is real and deserves our attention, he clearly does not believe that the EPA has the legal authority to do anything about it.
That’s despite the fact that the federal Clean Air Act gave EPA the authority to regulate any air pollutant, not just those listed by name in the law. Indeed, in this case, the Supreme Court ruled that greenhouse gases fit with the act’s “capacious” definition of an air pollutant.
That’s not all.
When the Trump administration sought to delay rules designed to reduce emissions of methane, a powerful greenhouse gas, Kavanaugh sided with polluters. When the EPA sought to replace fluorinated chemicals known as HFCs to reduce greenhouse gas emissions, Kavanaugh complained that the proposed rule pulled the rug out from under polluters – even though replacement chemicals are readily available. Kavanaugh also supported giving large plants and factories more time to comply with greenhouse gas rules.
Even when Kavanaugh, citing precedent, concurred in a decision to uphold a greenhouse gas regulation, he doubled down on his view that the EPA lacks the authority to regulate greenhouse gases like carbon dioxide.
What’s more, Kavanaugh has also challenged the EPA’s authority to regulate air pollution that starts in upwind states like Ohio but pollutes downwind states like Maine. The Clean Air Act not only requires states to meet air quality goals but also empowers the EPA to ensure that upwind states bear their share of the pollution they cause in downwind states – the so-called “good neighbor” provision.
In this case, Kavanaugh argued that the EPA could not apportion sulfur dioxide and nitrous oxide pollution reductions among upwind states – even though EPA’s proposed rule would have prevented up to 34,000 premature deaths. The fact that the Supreme Court, including some of the Court’s conservative justices, found this view too extreme suggests just how willing Kavanaugh is to legislate from the bench to protect polluters.
Of equally great concern should be Kavanaugh’s record of using flawed cost-benefit analysis to tip the scales in favor of polluters and against public health. Kavanaugh’s views on costs and benefits could not only block efforts to reduce air and water pollution but could also imperil efforts to regulate toxic substances like asbestos.
In one case, Kavanaugh sought to underestimate the public health benefits of reducing mercury pollution by discounting other benefits, like reducing particulate matter.
In some cases, Kavanaugh has adopted the view that the EPA must always weigh the costs to polluters against the benefits to public health – regardless of Congressional direction not to do so. When the EPA was proposing to regulate mercury emissions, Kavanaugh argued that the EPA was obligated to consider the costs of regulatory compliance to polluters. Likewise, when the EPA proposed to apportion cross-state pollution, Kavanaugh sided with industry by advocating for the regulation that is least costly to industry, not most protective of public health. In another case, Kavanaugh argued that the EPA had failed to consider the costs to a coal company dumping mine waste into streams, even though the agency had no obligation to consider cost.
Kavanaugh has also argued against giving deference to the EPA’s interpretation of the law, especially in cases related to air pollution. It’s very likely that Kavanaugh will be fifth vote to strike down the EPA’s view that certain kinds of small streams are protected by the federal Clean Water Act.
Before a polluter discharges pollution into a body of water subject to the Clean Water Act, the polluter must obtain a permit to ensure that the waterway does not become so polluted that it can no longer serve as a source of drinking water or support recreational uses like fishing. But if some small streams are excluded from the protections of the Clean Water Act, polluters discharging into those streams may avoid meeting water quality standards.
The last time the Supreme Court considered which bodies of water are covered by the Clean Water Act, the justices now on the court were evenly split. Justice Anthony Kennedy cast the deciding vote and wrote an opinion that concluded bodies of water were subject to the Clean Water Act when they had a “significant nexus” to bigger rivers. For Kennedy, that meant that smaller rivers upstream would significantly impact the physical, chemical or biological make-up of rivers downstream.
But Kavanaugh is widely expected to share the view of the court’s other conservative justices. Those justices concluded the waters protected by federal law did not include small streams that may not flow year-round. Using data from the EPA and the U.S. Geological Survey, EWG found more than 100 million American receive their drinking water supplies from these small streams.
The Supreme Court’s open seat is the critical vote on once-in-a-generation decisions related to air, water, and toxic chemicals. Judge Kavanaugh is no ordinary judge: He is a partisan warrior who has adopted extreme views to favor polluters at the expense of public health.
https://www.ewg.org/news-and-analysis/2018/09/brett-kavanaugh-good-news-polluters-bad-news-public-health#.W4-FPM4zb0N

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4 Takeaways from Kavanaugh's First Day

Sep 5, 2018 | E&E Daily

By Nick Sobczyk and Ellen M. Gilmer

Democrats on the Senate Judiciary Committee gathered outside the Capitol yesterday morning and promised to attend the Brett Kavanaugh hearing "under protest."
That pledge played out during a chaotic first hour, as President Trump's Supreme Court nominee formally began his confirmation process.
Protesters repeatedly interrupted Judiciary Chairman Chuck Grassley (R-Iowa), and Sen. Richard Blumenthal of Connecticut and other Democrats asked multiple times for a vote to adjourn to allow more time to review documents released the night before the hearing (Greenwire, Sept. 4).
It was a hot start, but once senators settled into their opening statements, the day ultimately yielded few insights into how Kavanaugh would rule from the Supreme Court bench, particularly on environmental issues.
Kavanaugh sat stone-faced for much of the hearing as Democrats requested it be delayed and railed against Senate Republicans and the White House for refusing to release documents from his time working at the White House during the George W. Bush administration.
Republicans, meanwhile, fended off Democratic attacks and praised Kavanaugh as a well-qualified candidate for the nation's top court.
When he finally got a chance to speak for himself late in the afternoon, Kavanaugh said he would be a "team player" on the Supreme Court and that he rules based on his interpretation of the law, rather than policy preferences.
"Over the past 12 years, I have ruled sometimes for the prosecution and sometimes for criminal defendants, sometimes for workers and sometimes for businesses, sometimes for environmentalists and sometimes for coal miners," he said. "In each case, I've followed the law. I don't decide cases based on personal or policy preferences."
Although it appears most minds are already made up, Kavanaugh is likely to face questions on climate change, administrative law and other environmental issues in the days ahead.
Here are four takeaways from his first day before the Judiciary Committee:Environmental issues on the back burner — for now
Energy and environmental policy issues were relegated to postscript status during yesterday's hearing.
Senators' concerns about Kavanaugh's impact on the environment were typically sandwiched in lists of other issues, including worker rights, health care and consumer protections.
Blumenthal said Kavanaugh would have the power to decide "whether we drink clean water and breathe clean air."
Fellow Democrat Chris Coons of Delaware pointed to Kavanaugh's history of disagreeing with some of his D.C. Circuit colleagues as a red flag: "Many of your dissents would undercut environmental protections."
Kavanaugh has parted with other judges in a number of environmental cases, including one in which he questioned EPA's authority for certain greenhouse gas regulations and one in which he said the agency should have taken a closer look at the costs of a power plant rule.
Sen. Sheldon Whitehouse (D-R.I.) said that Kavanaugh's approach would allow the Supreme Court to continue "helping polluters pollute."
The Democrats' concerns drew what amounted to an eye roll from Sen. Ben Sasse, a Republican from Nebraska.
"Judge Kavanaugh doesn't lust after dirty water and stinky air," he said, likening such allegations to satire from The Onion.
Despite the lack of attention during opening statements, some Democrats are hoping to hear more on his environmental record in light of a series of regulatory rollbacks at EPA.
Senate Environment and Public Works Committee ranking member Tom Carper (D-Del.) penned a letter last month with other Democrats on his panel urging a more thorough examination of Kavanaugh's environmental positions, particularly from his time in the George W. Bush White House.
Though he doesn't sit on the Judiciary panel, Carper yesterday ticked off a list of environmental issues he wanted to hear about during the question-and-answer portion of the hearing, including EPA's cross-state air pollution requirements and the agency's decision last week to reconsider an Obama-era rule aimed at limiting mercury and other toxic air pollution emissions.
"Cross-border pollution is high on the list. The issues revolving around mercury are high on the list. The endangerment finding — is it settled law?" Carper said. "Those are maybe the top three."
The League of Conservation Voters last night distributed a list of targeted questions the group wants senators to ask Kavanaugh about his environmental record.
Among them: Does Kavanaugh want to overturn Massachusetts v. EPA, the Supreme Court case that paved the way for EPA's regulation of greenhouse gas emissions? When has the nominee "weighed public health benefits above corporate profits"? And will he block the Trump administration from unlawful regulatory rollbacks?
The Natural Resources Defense Council, meanwhile, doubled down on Democrats' calls for documents from Kavanaugh's time in the Bush administration. The group noted that the records could shed light on his role in President Bush's environmental rollbacks.
Whitehouse hedged yesterday when asked whether his plans for today's hearing would include questions about climate change and administrative law.
"We'll see," he said.Trump a common thread
The chief concern Democrats raised yesterday did not involve any one legal or policy area but, instead, one person: President Trump.
"There will always be an asterisk by your name," Blumenthal told Kavanaugh, noting the investigations surrounding the president and the 2016 election.
Many Senate Democrats said they're concerned Trump chose Kavanaugh for his views on executive power and immunity.
Though Kavanaugh played a key role in the Kenneth Starr investigation of President Clinton in the 1990s, he has since concluded that subjecting a sitting president to such a probe was a mistake.
"I find it difficult to imagine that your views on this subject escaped the attention of President Trump, who seems increasingly fixated on his own legal jeopardy," Sen. Patrick Leahy (D-Vt.) said yesterday.
Hawaii Democrat Mazie Hirono agreed.
"The president is trying as hard as he can to protect himself from the independent, impartial and dogged investigation of his abuse of power before the walls close in on him entirely," she said.
Republican Sens. Mike Crapo of Idaho and Lindsey Graham of South Carolina responded that Democrats' resistance to Kavanaugh stems from an unwillingness to accept the results of the 2016 election.
"You can't lose the election and pick judges," Graham said. "If you want to pick judges, you've got to win."Dems appeal to the base
In addition to their protests over process and Trump, Democrats sought to frame Kavanaugh as an enemy of common liberal causes — such as climate change, abortion rights and President Obama's health care law — that have gotten big play in the midterm elections.
Whitehouse listed a series of 5-4 decisions in which he said the conservative majority on the court under Chief Justice John Roberts sided with corporate interests and polluters.
Whitehouse added that both Kavanaugh and Supreme Court Justice Neil Gorsuch have the support of conservative organizations like the Federalist Society and Judicial Crisis Network.
"No wonder the American people feel the game is rigged," he said.
Some Democrats and liberal groups also circulated fundraising emails during the hearing. Sen. Cory Booker (D-N.J.) sent out a plea urging supporters to "join the fight," citing health care and the landmark Roe v. Wade abortion ruling.
Republicans, meanwhile, dismissed the Democratic objections as a political ploy.
"They have to turn the volume up to 11 to try to paint you as one of the four horsemen of the apocalypse," Sen. Orrin Hatch (R-Utah) said to Kavanaugh.
Sen. Ted Cruz (R-Texas) called Democratic protests an attempt to "relitigate the 2016 presidential election."
"Virtually every Democratic senator had little to nothing to say about Judge Kavanaugh's record as a judge," Cruz told reporters after the hearing.
Hatch added that he thought some on the committee are simply looking for a sound bite to use in a 2020 presidential run. At least two Democrats on the panel — Booker and Sen. Kamala Harris of California — are seen as potential candidates to challenge Trump.
"We have folks who want to run for president, who want that moment in the spotlight, who want that coveted TV clip," Hatch said. "Frankly, I wish we could drop all the nonsense."
But Harris noted that Republicans have openly advocated for conservative justices on the court on the campaign trail, even as Obama Supreme Court nominee Merrick Garland languished without a hearing.
"I think that we have to give pause when those kinds of concerns are expressed to also think about the fact that there has been many a political campaign that has been run indicating an intention to use the United States Supreme Court as a political tool to end things like the Affordable Care Act, the Voting Rights Act and campaign finance reform," Harris said.Republicans forge ahead
Despite continued opposition from Democrats and environmental groups, Kavanaugh appears to be on track for a brisk confirmation.
Grassley said yesterday the committee would vote on his nomination Sept. 13, when he's likely to pass on a party-line vote.
In the full Senate, the GOP will hold a 51-49 majority with the appointment of former Republican Sen. Jon Kyl to replace the seat vacated by the death of Arizona Sen. John McCain (Greenwire, Sept. 4).
Republicans are hoping to sway moderate Democrats from red states, such as Sens. Heidi Heitkamp of North Dakota and Joe Manchin of West Virginia, to join them in voting for Kavanaugh.
But moderate Republican Sens. Lisa Murkowski of Alaska and Susan Collins of Maine are seen as the key swing votes.
Neither had much to say about Kavanaugh yesterday, despite the fireworks at the hearing.
Murkowski said simply, "A lot of drama."
https://www.eenews.net/eedaily/2018/09/05/stories/1060095799

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EPA Rejects OIG Call For 'Threat Analysis' To Justify Pruitt Security Team

Sep 5, 2018 | Inside EPA

By David LaRoss

EPA is rejecting calls from its Office of Inspector General (OIG) to pursue a “threat analysis” and take other steps to justify the agency's use of a round-the-clock security detail to protect former Administrator Scott Pruitt, leaving unresolved disputes about the merits of spending millions of dollars on the increased security team.
According to a Sept. 4 OIG report, “EPA Asserts Statutory Law Enforcement Authority to Protect Its Administrator but Lacks Procedures to Assess Threats and Identify the Proper Level of Protection,” eight of the OIG's 12 recommendations to EPA are partially or fully unresolved, including many that rest on the threat analysis question as well as whether “improper” overtime pay to enforcement agents contributed to the $3.5 million it spent on Pruitt's protective service detail (PSD).
The agency disagrees that there is a need to use a threat analysis to justify the level of security detail assigned to the administrator, and it also opposes the OIG's call to review in-depth overtime pay given to the detail.
The OIG is looking to hold meetings with senior EPA officials to address the unresolved disputes, and if those are unsuccessful it could launch a dispute-resolution process.
The report followed a hotline complaint to the OIG that alleged timekeeping irregularities and potential salary cap violations by members of Pruitt's team. Critics of the former administrator accused him of having an excessive security detail -- one of several claims about his misuse of agency funds. Pruitt eventually resigned in July following a series of ethics scandals, including the ramped-up security detail.
According to the report, Pruitt's use of 24-hour protection from Feb. 1, 2017, to Dec. 31, 2017, hiked spending on security to $3.5 million from $1.6 million in the prior period, an increase of more than 110 percent “without documented justification.”
The OIG report finds “that the PSD has no final, approved standard operating procedures that address the level of protection required for the Administrator or how those services are to be provided. The failure to have effective and current standard operating procedures can result in the organization having unclear lines of authority, inconsistent practices, inappropriate or inadequate staffing, and excessive or unnecessary costs.”
However, EPA in its responses to draft versions of the report disputes either OIG's preferred solutions -- such as using a threat analysis to determine the need for a PSD -- or its conclusions that overtime payments to security agents were “improper.”
“[A] threat analysis, while informative, is not dispositive of a decision to provide protection nor what level of protection should be provided. Further, the lack of threats does not mean that there is no risk or that protective services are not justified,” reads the response, which is signed by EPA enforcement chief Susan Bodine, Chief Financial Officer Holly Greaves and General Counsel Matt Leopold.
EPA in its response to the report agreed to provide a formal legal argument for its authority to administer a PSD; craft “new policies, procedures and/or guidance” on how criminal enforcement agents can split their time between PSD duties and enforcement activities; and audit the wages of an agent who was found to be overpaid for work as a security agent, followed by recovering the amount of the overpayment.
But the agency says it “disagrees” either partly or completely on eight other recommendations, including those that call for new policies that would determine when a PSD is justified based on a threat analysis and a broader investigation of possible overpayments to other agents, such as through inappropriately authorized overtime.
Thanks to that ongoing conflict, OIG is seeking to either hold a new round of meetings with Bodine, Greaves and Leopold “within 30 days” or begin dispute-resolution procedures, the report says.
The security report is the first in an expected series of releases from the OIG, after the office announced in August that it was close to finishing at least four audits of Pruitt's conduct as EPA administrator. Before Pruitt resigned on July 6, OIG had open audits on a host of issues such as the PSD, Pruitt's travel spending, and his use of Safe Drinking Water authority to hire staffers outside the normal administrative process.
OIG Recommendations
Of the eight “unresolved” recommendations, three deal with how EPA should decide the necessary level of protection for an official. OIG is calling for the agency to use regularly updated threat analyses “to justify the proper level of protection required for the Administrator”; use those findings in turn to set “appropriate” PSD staff levels; and craft “comprehensive policies, procedures and standard operating procedures for threat determinations and PSD operations.
But the EPA officials' joint response counters that the OIG's preferred metric would have failed to foresee high-profile attacks on political figures, including the 2017 shooting of Rep. Steve Scalise (R-LA) and the attack on former Rep. Gabby Giffords (D-AZ) in 2011.
“A threat assessment as envisioned in the draft report would not have identified a need for the protective services provided to the House Majority Whip, Steve Scalise, on that day. However, if his detail had not been present at the morning practice of the Republican team, it is likely that most of the members of that team would now be dead,” the response says.
The other five recommendations OIG says are unresolved deal with overtime payments to enforcement officers that worked on Pruitt's PSD. The report says EPA lacked controls to prevent “improper” overtime authorizations, and calls for a broad audit followed by rescinding improper payments.
But EPA says in the response that the only question on that subject should be whether the officers actually worked the time for which they were paid.
“The payments made to PSD agents were, in fact, payments made for actual overtime worked and as such, these payments were not improper even though the pre-approval requests for overtime may not have been according to best practices,” the response says.
Two of the four “resolved” recommendations deal with EPA's statutory authority to establish a PSD in the first place -- a question that the OIG describes as novel, because traditionally only the Secret Service and State Department can use police powers to protect executive-branch officials.
The OIG's report includes a letter from EPA's Office of General Counsel that details its legal argument to the contrary, arguing that the agency's police powers include security in addition to direct enforcement of environmental laws, but it also notes that the letter was only provided in response to a draft that said “the agency -- repeatedly -- failed to respond to our requests” for that document.
The other two recommendations that OIG considers resolved deal with a specific officer who collected $16,299.33 in overtime pay even though the waiver for that overtime was denied. EPA is agreeing to audit that agent's 2017 pay and recover improperly paid wages.
In a Sept. 4 statement, the Environmental Integrity Project's Executive Director Eric Schaeffer said the report “confirms what we already know: there was no serious evaluation of the so-called ‘threats’ to former Administrator Scott Pruitt’s personal safety, and no reason to justify providing him with round the clock security and first class travel.”
https://insideepa.com/daily-news/epa-rejects-oig-call-threat-analysis-justify-pruitt-security-team

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Climate Skeptic to Join NSC, Advise Trump on Emerging Technologies

Sep 4, 2018 | The Hill - E2 Wire

By Miranda Green

President Trump is appointing William Happer, a well-known climate skeptic, to his National Security Council (NSC).
Happer, a prominent atomic physics professor at Princeton University who has questioned human involvement in climate change, will head up the NSC's office for emerging technologies as senior director, an NSC spokesperson confirmed to The Hill on Tuesday.
CNN first reported the appointment.
Happer has publicly questioned how much human activity has contributed to global warming. A decade ago, he requested that the American Physical Society change its position on climate change to one that raised doubts about global warming. The request was harshly rejected.
More recently, in 2013, Happer coauthored a Wall Street Journal op-ed defending carbon dioxide production as "a boon to plant life," saying it "has little correlation with global temperature."
Happer told CNN last year that carbon dioxide is not the toxic "pollutant" that the public made it out to be.
"The temperature is not rising nearly as fast as the alarmist computer models predicted," he told CNN in April 2017.
Happer previously served in the Department of Energy under former President George H.W. Bush as a research director. He was reportedly a frontrunner to be President Trump's science adviser, telling The Guardian that after meeting with Trump in January 2017 that he would accept the post if it were offered to him.
"There’s a whole area of climate so-called science that is really more like a cult,” Happer told The Guardian in February 2017.
“It’s like Hare Krishna or something like that," he said. "They’re glassy-eyed and they chant. It will potentially harm the image of all science.”
Trump in 2017 announced that he was pulling the U.S. out of the Paris climate accord, a multination agreement that seeks to drastically cut global greenhouse gas emissions.
Trump announced last month that meteorologist Kelvin Droegemeier would be his science adviser.
Happer did not return a request for comment.
http://thehill.com/policy/energy-environment/405043-noted-climate-skeptic-to-advise-trump-on-emerging-technologies

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LCSA News

Drinking Water Utilities Target EPA's Narrow Approach On TSCA Analysis

Sep 4, 2018 | Inside EPA

By Maria Hegstad

A group of drinking water utilities is criticizing EPA's narrow approach to regulating chemicals under the new Toxic Substances Control Act, charging that the agency's decision to reduce scrutiny of uses already regulated by other EPA programs could result in increased risks of drinking water contamination.
In an Aug. 30 comment letter, the Association of Metropolitan Water Agencies (AMWA), representing large, publicly-owned drinking water utilities, criticized EPA's proposed significant new use rule (SNUR) limiting some potential uses of 27 chemicals under the revised Toxic Substances Control Act (TSCA), charging that one of those substances -- a chloroflurocarbon (CFC) -- is listed as a contaminant of concern subject to mandatory monitoring requirements.
“While the SNUR may be appropriate for protecting workers from exposure, AMWA is concerned about the end use of these chemicals after the manufacturing process or other use, which could result in air emissions releases, effluent releases and improper disposal under the Resource Conservation and Recovery Act,” writes AMWA's CEO Diane VanDe Hei.
“The agency should always consider the interaction of various existing laws, including the Safe Drinking Water Act (SDWA) as the end result of all of these loadings into the environment could result in a future problem for source water protection and ultimately necessitate additional drinking water treatment at a high cost to the public. It is crucial to strive towards the prevention of pollutants entering drinking water sources and TSCA provides us with a unique opportunity to protect the environment and public health.”
AMWA's comments echo concerns from environmentalists, worker safety advocates and others, who have criticized the Trump EPA for taking a narrow approach when assessing both new and existing chemicals for possible regulation by precluding from its risk analyses uses that are already regulated by other EPA programs and other agencies, as well as legacy uses.
For example, the Environmental Protection Network (EPN), a group of former agency officials, warned in recent comments that EPA's plan to preclude consideration of risks addressed by other programs when assessing the first ten existing chemicals under TSCA violates statutory mandates.
Citing language in section 6, EPN says “these provisions clearly establish the role for other EPA programs: information known through other statutory programs shall be considered in the risk evaluation phase for existing chemicals under TSCA, and after completion of the risk evaluation, the administrator must follow a process to consider the potential use of other programs to address the risk under the TSCA standard. The proposed EPA approach would reverse and fundamentally alter this process.”
While the group's letter addresses EPA's approach dealing with existing chemicals -- those in commerce before the original law was adopted in 1976 -- the agency has taken a similar approach in dealing with new chemicals.
Proposed SNUR
At issue in the proposed SNUR is EPA's decision to allow some uses of a CFC as one of 27 substances of which the agency is similarly proposing to allow some potential uses.
In the proposed rule, EPA says the premanufacture notice (PMN) submitted by the applicant shows that the substance is intended for use as an “intermediate,” a chemical used or produced in the process of making other substances.
But the agency acknowledged that it identified concerns for acute human toxicity, as well as concerns for toxicity to aquatic and terrestrial organisms, which the agency sought to address with a consent order between the agency and manufacturers under its TSCA 5(e) authority, and now through the SNUR.
“The [TSCA section 5(e)] Order was issued under TSCA sections 5(a)(3)(B)(ii)(I), 5(a)(3)(B)(ii)(II) and 5(e)(1)(A)(ii)(I), based on a finding that the substance may present an unreasonable risk of injury to health and the environment and that the substance will be produced in substantial quantities and may be reasonably anticipated to enter the environment in substantial quantities,” EPA's direct final rule states.
The rule goes on to describe the steps EPA is proposing to address its concerns about the risks the chemical poses, among them: a requirement that the manufacturers submit certain toxicity tests before exceeding specified production limits; requiring the use of protective equipment and engineering controls for workers and “No release of the substance resulting in surface water concentrations that exceed 240 [parts per billion].”
While AMWA points to these controls in its letter, it warns that EPA is not accounting for other risks that the agency may be reviewing under other programs.
For example, the group notes that EPA in 2012 decided to list the chemical as a “contaminant of concern in drinking water supplies under EPA’s third Unregulated Contaminant Monitoring Rule (UCMR-3),” which requires utilities to monitor for the presence of contaminants for possible future regulation.
“CFC is of particular concern as a ground water contaminant, as CFCs degrade slowly in ground water,” the group adds, raising concerns that its use could result in groundwater contamination.
“The availability of ground water for a variety of purposes, but most importantly as a source of safe, high quality drinking water, is essential,” it says, adding that “ground water contamination is expensive to detect and monitor. Further, once present, many of the contaminants, including CFCs, are very difficult or impossible to remove from aquifers."
“AMWA recommends EPA reconsider approval for SNURs for chemicals known to have an acute toxicity to human health and is identified as a potential contaminant of concern in drinking water supplies,” the group says.
https://insideepa.com/daily-news/drinking-water-utilities-target-epas-narrow-approach-tsca-analysis

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House Democrats Again Seek TSCA Review Hearing

Sep 4, 2018 | Inside EPA

House Democrats are renewing their calls for a committee hearing on EPA's implementation of the revised toxics law, signaling the likelihood that such a hearing will be a priority if Democrats take control of the House in the upcoming November elections, though Trump administration plans to nominate a toxics office chief may delay that.
In an Aug. 29 letter, Rep. Frank Pallone (D-NJ), the top Democrat on the Energy and Commerce Committee, along with the Democratic members of the environment subcommittee, ask Republicans to grant their fourth request for a hearing on EPA's implementation of the revised Toxic Substances Control Act (TSCA).
“It is now well over a year since our original request and two years since [TSCA] reform legislation was signed into law, and it is completely unacceptable that the Committee has yet to hold a single hearing on implementation of this critically important public health program,” they write.
“The law made substantial revisions to TSCA to strengthen public health protections, but we remain concerned that EPA’s implementation of the reformed TSCA program contradicts the new law’s language and intent and undermines public confidence in the program,” the letter adds.
The letter, to committee Chairman Greg Walden (R-OR) and environment subcommittee Chairman John Shimkus (R-IL) raise a litany of concerns with how the administration is implementing the law, including that political officials are allowing for chemical risks over the advice of agency staff in violation of the June 2016 rewrite, and endangering public health.
The letter was sent days before the Trump administration announced its intent to nominate EPA Region I Administrator Alexandra Dunn to lead EPA's toxics office -- which oversees TSCA implementation -- a move that is likely to further delay any hearing.
Democrats first requested a hearing in June and August of last year, and were told a hearing would be held in September 2017. When that date passed, the lawmakers lodged a third request in November 2017.
The lawmakers' letter reiterates a host of concerns of environmentalists and their Democratic backers.
They argue that senior Trump administration appointee to the toxics office, Nancy Beck, a former lobbyist with the American Chemistry Council, has held numerous meetings with industry groups since joining EPA and revised Obama-era rules for evaluating existing chemicals largely along industry talking points.
Additionally, the lawmakers say that EPA's chemical reviews fail to meet a TSCA requirement to consider reasonably foreseeable uses, and they blame the administration for failing to follow through on Obama-era proposed rules banning certain uses of methylene chloride and the solvent trichloroethylene.
They also call the Trump administration's proposed significant new use rule on asbestos a “loophole” that will allow for future uses of the known carcinogen.
“Each year, 15,000 Americans die from asbestos-related diseases such as mesothelioma, and now EPA’s rulemaking has created a loophole that allows legacy asbestos uses to be revived without requiring agency review or approval,” the lawmakers say.
“As a result, Uralasbest, a Russian company that is one of the world’s largest asbestos producers, posted a message of support for President Trump on their official Facebook page with photos of packed asbestos material adorned with the face of Trump and the text, 'Approved by Donald Trump, 45th President of the United States.'”
In addition to Pallone, the letter was also signed by Reps. Paul Tonko (D-NY), ranking Democrat on the environment subcommittee, Raul Ruiz (D-CA), Scott Peters (D-CA), Gene Green (D-TX), Diana DeGette (D-CO), Jerry McNerney (D-CA), Tony Cardenas (D-CA), Debbie Dingell (D-MI), and Doris Matsui (D-CA).
https://insideepa.com/daily-feed/house-democrats-again-seek-tsca-review-hearing

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EPA Needs To Get its SNURs in Order Under TSCA

Sep 4, 2018 | Environmental Defense Fund

By Richard Denison

On Friday EDF submitted comments to EPA on a batch of Significant New Use Rules (SNURs) the Environmental Protection Agency (EPA) published on August 1 pursuant to the Toxic Substances Control Act (TSCA).
The SNURs relate to 145 new chemicals for which EPA had earlier issued consent orders that imposed certain conditions on the substances. Those consent orders date back to when EPA was still pursuing the development of such orders for many new chemicals it reviewed, and prior to the recent “pivots” it has been making in an effort to avoid issuing orders by circumventing the requirements of the TSCA provisions governing new chemicals.
TSCA anticipates that EPA will promulgate SNURs to follow up on consent orders. In fact, TSCA section 5(f)(4) requires that when EPA issues an order, EPA must either promulgate a SNUR or provide a statement explaining why EPA is not doing so. And when EPA does promulgate such a SNUR, the SNUR must “identif[y] as a significant new use any manufacturing, processing, use, distribution in commerce, or disposal of the chemical substance that does not conform to the restrictions imposed by the … order.”
EDF strongly supports EPA’s use of SNURs to follow up on consent orders it issues. That is because the order only applies to the original company that submitted a premanufacture notice (PMN) to EPA for a new chemical. A proper SNUR then requires that company or any other company that seeks to deviate from the conditions in the order to first notify EPA, triggering a review of that “significant new use.”
While EDF supports EPA’s issuance of SNURs for these 145 new chemicals, our review of the proposed SNURs raised concerns, prompting us to file “adverse” comments. Our comments raise two major concerns:
First, EPA has adopted an ad hoc testing policy in the direct final rule that does not comply with the requirements of TSCA, without sufficient explanation, and without providing any notice and opportunity for public comment on the policy. EPA needs to avoid adopting such an ad hocpolicy.
Second, as noted above, TSCA (as well as EPA’s longstanding policy) requires SNURs to “conform” to the restrictions in the corresponding orders. Yet we identified numerous inconsistencies between the orders and SNURs. EPA must ensure that the final SNURs identify as a significant new use any activity that is not consistent with the restrictions in the corresponding consent orders.
See our comments for details.
NOTE: EPA had published the SNURs both as a direct final rule and as a proposed rule, noting that if it received any adverse comments, it would withdraw the direct final rule and consider the comments received in the process of finalizing the proposed rule. We expect EPA will now pursue this course.
http://blogs.edf.org/health/2018/09/04/epa-needs-to-get-its-snurs-in-order-under-tsca/

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Chemical Management News

New Jersey Sets Strictest Limit Nationwide for Fluorinated Chemical

Sep 4, 2018 | BNA Daily Environment Report

By Sylvia Carignan

New Jersey set the lowest enforceable limit in the country for a fluorinated chemical, establishing a precedent that will capture the attention of other states and the U.S. EPA.
New Jersey Department of Environmental Protection set Sept. 4 a statewide standard for perfluorononanoic acid, or PFNA, of 13 parts per trillion in drinking water. The state’s adoption of a formal standard requires water companies and utilities to monitor supplies and, if necessary, take corrective actions to remove the chemical. Drinking water standards also are relied on as targets in cleaning up waste sites in the state.
The move comes as surveys indicate PFNA concentrations in people’s blood are on the rise.
Broad Family of Compounds
PFNA is part of a family of about 3,000 fluorinated chemicals that can cause adverse health effects, including liver tissue damage, immune system or thyroid effects, and changes in cholesterol, according to the Environmental Protection Agency.
Fluorinated chemicals have been used to manufacture firefighting foams and in making nonstick and stain-resistant coatings in clothing, fast-food wrappers, carpets, and other consumer products.
The two most widely known members of the fluorinated chemical family are perfluorooctanesulfonic acid (PFOS) and perfluorooctanoic acid (PFOA), which have turned up in drinking water supplies across the country.
When people are exposed to PFOA or PFOS in drinking water at more than EPA’s unenforceable guidance of 70 parts per trillion during their lifetimes, they could be at risk for adverse health effects, according to the EPA.
The New Jersey Drinking Water Quality Institute, composed of state officials, academics, water utilities, and consultants, proposed the 13 parts per trillion limit in 2015.
Though the amount of most fluorinated chemicals in Americans’ blood is declining, the amount of PFNA is increasing, according to a 2013 study published in the Journal of Clinical & Experimental Pharmacology.
https://news.bloombergenvironment.com/environment-and-energy/new-jersey-sets-strictest-limit-nationwide-for-fluorinated-chemical?context=landing&limit=30&tab=news

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Preservative Pinch Shows Need for Options, Supply Chain Preparation

Sep 4, 2018 | BNA Daily Environment Report

By Pat Rizzuto

An ongoing global shortage of a chemical used in inks, disinfectants, cleaning, and many other products shows why manufacturers need backup plans to ensure they can meet their commercial obligations, an attorney told Bloomberg Environment.
“This may well be an illustration of the new normal,” Lynn Bergeson, managing partner of Bergeson & Campbell, P.C., told Bloomberg Environment by email Aug. 31.
The shortage of a preservative called 1,2-benzisothiazol-3(2H)-one, or BIT, also underscores why chemical manufacturers need to develop new compounds that paint, pesticide, fabric softener, and other product manufacturers can use to keep their goods free of microbes and bacteria. The BIT shortage apparently stems from problems getting from Chinese suppliers an essential ingredient used to make the preservative.
“Our strong recommendation is for clients to anticipate these events and have in place durable protocols, ‘Plan Bs’, and some commercial redundancy to weather the storms on the horizon,” Bergeson said.
Greener Chemicals Needed
The shortage also spotlights calls for greener alternatives when there are shortages.
While BIT can irritate skin, according to information manufacturers have provided the European Chemicals Agency, it is less harmful than some alternatives. In fact, BIT is among the ingredients companies use in products that may meet the stringent, health-protective criteria set by the EPA’s Safer Choice program.
Products that use or previously have used BIT include Procter & Gamble Co.’s Downy Fabric Softener and several Mr. Clean products, ink cartridges made by Brother International Corp., and Seventh Generation, Inc.'s dishwasher gel.
“For several years, we’ve been researching alternatives to BIT, but have not yet found a substance that is as effective while meeting our strong safety standards,” Brandi Thomas, senior public relations manager for Seventh Generation, said. “We’ve also worked with our suppliers to find alternatives and are currently researching the viability of these alternatives in our products.”
Seventh Generation supported a recent competition to identify new, greener preservatives, Thomas said.
The competition was organized by the Green Chemistry & Commerce Council, which works across industrial sectors and supply chains to develop greener chemicals. The council announced the winners in August.
The council sponsored the competition because regulations restricting or banning preservatives, along with corporate chemical policies that seek to reduce the use of chemicals that may irritate skin, have shrunk the number of preservatives available to the global supply chain, the council’s executive director Joel Tickner told Bloomberg Environment.
Companies up and down the supply chain were able to jointly work on the competition because it focused on identifying chemicals that provide a specific function—killing microbes and bacteria—rather than finding substitutes to replace a particular chemical, he said.
https://news.bloombergenvironment.com/environment-and-energy/preservative-pinch-shows-need-for-options-supply-chain-preparation?context=landing&limit=30&tab=news

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Bayer Says More Americans Are Alleging Weed Killers Cause Cancer

Sep 5, 2018 | The Wall Street Journal

By Ruth Bender

Bayer AG said the number of American plaintiffs alleging the company’s newly acquired weed killers cause cancer has risen sharply, adding to concerns about potentially lengthy and costly litigation stemming from its acquisition of Monsanto.
The company on Wednesday also lowered its full-year earnings outlook because of delays in closing its $63 billion purchase of Monsanto, which included a portfolio of herbicides, including its flagship Roundup, that contain glyphosate.
Bayer said Wednesday it faced some 8,700 plaintiffs across the U.S. as of late August—mainly cancer patients who claim to have fallen ill after being exposed to the glyphosate-containing Monsanto herbicides.
Last month, shortly after Bayer closed the acquisition, Monsanto was ordered to pay $289.2 million by a California state jury. It found that Monsanto’s Roundup and Ranger Pro products presented a “substantial danger” to consumers, and that Monsanto knew or should have known of potential risks and failed to warn users.
Bayer rejected the verdict as “wrong,” and is seeking a review of the court decision. It said it would appeal if necessary, a process that it expects could take up to a year. Such large jury awards are often ultimately reduced and in some cases overturned. Bayer hasn’t disclosed any provision for liabilities linked to the cases. Bayer argues some 800 studies have proven that the chemical is safe and doesn’t cause cancer.
Bayer’s shares opened 2.9% lower after the earnings report and were still trading some 2% lower in early afternoon trade.
As of late July, Bayer counted some 8,000 plaintiffs. A few months earlier—before the California jury victory—the number stood at some 5,200.
“Despite overall reassuring results, the glyphosate litigation uncertainty will likely remain an overhang in the mid-term,” Jefferies analysts wrote in a note to investors.
Roundup has come under increased scrutiny after a unit of the World Health Organization in 2015 said that glyphosate was probably carcinogenic. Yet further studies have produced mixed results about the potential carcinogenic hazard of glyphosate. The U.S. Environmental Protection Agency in September 2017 concluded a decades-long assessment of glyphosate risks and found the chemical not likely carcinogenic to humans.
Bayer on Wednesday didn’t say how much money it was setting aside to cover legal costs or potential payments. “We continue to believe that we have meritorious defenses and intend to defend ourselves vigorously in all of these lawsuits,” the company said in a statement.
Bayer expects more lawsuits in the future. The next case is due to go to trial in St. Louis in late October. So far, the majority of cases were filed in Missouri, Delaware and California, Bayer said.
The Leverkusen-based company closed the Monsanto deal on June 7 following two years of regulatory review during which the company had to shed more assets than originally planned to get the green light. Bayer blamed its lowered earnings outlook on the longer-than-expected review.
“The acquired business generates the majority of its sales and, above all, earnings in the first half of the year,” Chief Executive Werner Baumann said.
Bayer said it now expects full-year core earnings per share of between €5.7 ($6.6) and €5.9, lower than consensus expectations and below 2017’s €6.64 a share, a restated figure to account for the integration of Monsanto. Bayer had previously targeted core EPS to stay flat.
However, Bayer does expect the acquisition to boost its full-year sales, which it now targets at more than €39 billion, compared with its previous forecast of €35 billion.
Bayer reported a fall in second-quarter net profit to €799 million from $1.22 billion a year earlier after Bayer further reduced its stake in plastics company Covestro AG . Sales rose 8.8% to €9.48 billion from a restated figure of €8.71 billion, boosted by the integration of Monsanto, which offset weakness in the pharmaceuticals and consumer-health segments.
https://www.wsj.com/articles/bayer-says-more-americans-are-alleging-weed-killers-cause-cancer-1536145735?mod=searchresults&page=1&pos=2

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Illinois Plans to Implement Stricter, More Expensive Lead Rule

Sep 4, 2018 | BNA Daily Environment Report

By Stephen Joyce

An Illinois proposal to tighten lead standards and keep the dangerous metal at lower blood levels would also increase maintenance costs for Illinois property owners.
An Illinois Department of Public Health proposed rule would halve its current standard to align with the federal Centers for Disease Control and Prevention reference blood-lead level of 5 micrograms per deciliter for children and pregnant women.
If the rule is adopted, Illinois will be one of seven states to adopt the CDC standard, joining Maine, North Carolina, Ohio, New Hampshire, New Jersey, and Rhode Island.
Lead is a neurotoxin linked to brain damage, development delays, and behavior problems.
Medical Surveillance
The draft rule would prompt medical surveillance and other public health actions when blood lead levels exceed the CDC’s reference level. In addition, the proposal would require property owners to pay for more testing of indoor apartment complex common rooms and outdoor soils for lead.
The rule breaks new ground because for the first time, Illinois property owners would be required to pay for the testing of soils in close proximity to dwellings under certain circumstances, Mike Scobey, Illinois Realtors’ senior director of local advocacy and global programs, told Bloomberg Environment.
“So [inspectors] might find no real lead paint problem in the house, but could find lead dust in the soils. And that could be from another area,” he said.
The rule would change case management and followup obligations to make them “a little more rigorous, so that adds some cost,” Scobey said.
Funding Trends
The state Department of Public Health spent $3 million on lead-poisoning prevention efforts for children and pregnant woman in fiscal 2018 and will spend double that amount, to $6 million, in fiscal 2019, Melaney Arnold, DPH spokeswoman, told Bloomberg Environment in a Sept. 4 email.
Those additional funds will be used to support lowering of the reference level, she said.
State lead-poisoning abatement efforts total about $10 million, and Medicaid funds also may pay for some health services to children and pregnant women negatively affected by lead, Housing Action Illinois’ policy advocate Bob Palmer said.
Illinois children with elevated blood lead levels has been a persistent problem in the state. Out of approximately 270,000 Illinois children tested in 2014, more than 6 percent had elevated blood lead concentrations. Approximately 65 percent of Illinois housing units were built prior to a 1978 federal ban on residential lead paint, the Illinois DPH said.
Licensed Testing
Under existing Illinois regulations, the dwellings of children found to possess blood lead levels exceeding the state standard must be tested by a licensed lead abatement worker.
“Those workers aren’t cheap,” Scobey said.
The regulation also expands the areas required to be tested to include facilities where a child is a “frequent visitor,” which could be a child-care center or a grandmother’s home, Scobey said.
Expanding Owner Obligations
The proposed rule would beef up inspections of regulated facilities occupied by children, requiring child care and health care providers to report elevated blood level tests to the state within 48 hours, and authorize nurse case management, nutrition counseling, and medical care, Palmer told Bloomberg Environment.
The proposed rule also would make possible more nurse home visits for lead-exposed children and referrals for developmental screenings, Palmer said.
The rule doesn’t go as far as his organization would like, because no funding mechanism is attached to ensure full state implementation, he said. Palmer said his organization has pledged to advocate for that funding in 2019.
Comments on the Illinois proposed rule—which was published Aug. 17 and would take effect Jan. 1, 2019—are due Oct. 1.
https://news.bloombergenvironment.com/environment-and-energy/illinois-plans-to-implement-stricter-more-expensive-lead-rule?context=landing&limit=30&tab=news

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Energy News

Shell's Cracker Project Progressing After Administration Waives Steel Quota

Sep 4, 2018 | Natural Gas Intelligence

By Jamison Cocklin

Shell Chemical Appalachia LLC can continue constructing its multi-billion dollar ethane cracker in western Pennsylvania without delay after the Trump administration last week eased restrictions on imported steel from South Korea, Argentina and Brazil.
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Story can be found here: http://www.naturalgasintel.com/articles/115657-article-headline

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Colo. Says It's Cut Methane Leaks as Trump Eases U.S. Rules

Sep 5, 2018 | AP (In E&E Energywire)

By Dan Elliott

The Trump administration is rolling back some U.S. regulations on climate-changing methane pollution, calling them expensive and burdensome, but Colorado says its rules are working — and they have industry support.
Energy companies have found and repaired about 73,000 methane leaks since 2015 under a state-required oil field inspection program, according to the Colorado Air Pollution Control Division. The number of leaks fell by 52 percent, from more than 36,000 in 2015 to about 17,250 in 2017, according to a state report released last week.
Neither the government nor industry groups could say how much methane has been kept out of the atmosphere when the leaks were fixed, citing the complexity of factors involved.
But state officials said the sharp decline in the number of leaks shows Colorado is succeeding.
"We're just really encouraged by what we're seeing with this program and with the industry as a whole," said Mark McMillan, a manager in the state air pollution agency.
Methane is the primary component of natural gas. It is also a greenhouse gas, contributing to global warming by trapping heat in the Earth's atmosphere.
Colorado, the fifth-largest natural gas producer in the nation, started requiring energy companies to regularly inspect oil field equipment for leaks in 2014. The program is designed to reduce releases of methane and volatile organic compounds, or VOCs, which are also components of natural gas.
Under the right conditions — which are often present in Denver and Colorado's Front Range urban corridor — VOCs turn into ground-level ozone. Ozone, the main component of smog, can aggravate asthma and contribute to early deaths from respiratory disease.
Environmental and industry groups agreed Colorado's program is working, with some reservations.
"It's good to see that the number of leaks is lower than it was back when the program started. But it's not time to celebrate yet," said David McCabe, a senior scientist with the Clean Air Task Force, an environmental group.
Colorado's oil and gas industry is still releasing a lot of methane and VOCs, he said.
The Colorado Petroleum Council supports the state's rules, Executive Director Tracee Bentley said through a spokesman, Reid Porter. The Colorado council is affiliated with the American Petroleum Institute.
Colorado's success reflects a broad industry effort to reduce methane releases, Porter said.
The Obama administration imposed two sets of nationwide rules designed to reduce methane leaks and waste in the oil and gas industry, one by EPA and one by the Interior Department. The EPA rules applied to new oil field facilities. The Interior Department rules applied to new and existing facilities on federal and Native American land.
The Trump administration is rolling back both sets of rules. The administration called the Interior Department regulations burdensome and said they cost more than they were worth. Officials said removing the EPA rule would save energy companies up to $16 million over 14 years.
Energy companies also have argued they are already working to reduce leaks of methane, a product they can sell.
Bentley said the Interior and EPA rules are redundant.
"Two sets of regulations, two agencies, guarantees duplicative and costly overlap," she said.
Regulation would be better left to the states, Bentley said.
The Colorado program relies on oil and gas companies to report their inspections and results, although the state makes its own unannounced inspections using infrared cameras that can detect methane leaks.
The state does not expect to report its results until late this year or next, but the inspections have shown a decline in leaks that reflects what companies reported, said Jeremy Neustifter, an air quality planner with the Colorado Department of Public Health and Environment.
https://www.eenews.net/energywire/2018/09/05/stories/1060095749

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'Second Wave' of Export Projects to Be Decided by End of 2019

Sep 5, 2018 | E&E Energywire

By Jenny Mandel

Federal regulators last week laid out a timeline for permitting decisions on 13 pending liquefied natural gas export projects, issuing a memorandum of understanding that they said would streamline and speed up environmental reviews for the complex projects.
The new process by the Federal Energy Regulatory Commission and the Pipeline and Hazardous Materials Safety Administration will allow the agency to complete its decisions on a slew of proposed LNG export projects — expansions of two export terminals and construction of 11 new facilities — by early November 2019, lining up a completion of the federal permitting process by early February 2020 on all the projects.
The schedule includes dates for finalization of the main National Environmental Policy Act reviews for two projects this year, and then most of the rest in the first half of next year. The Alaska LNG project, a $44 billion effort, would be reviewed by November of next year and get a final federal decision in February 2020.
Once FERC issues its permit decision, other federal agencies have 90 days to finalize any other outstanding permits.
On Friday, FERC and the PHMSA published an MOU laying out the terms of their cooperation in reviewing the siting and safety reviews of LNG export projects.
Under the MOU, PHMSA will be responsible for assessing a project's adherence to standards governing the location and safety of LNG facilities. PHMSA will issue its findings through a letter of determination, "which FERC will accept as the authoritative determination of a proposed facility's ability to comply with safety regulations," according to PHMSA.
FERC will be responsible for determining whether LNG facilities whose applications it oversees meet other legal requirements. Under the Natural Gas Act, the Energy Department separately decides whether natural gas exports are in the public interest.
For fiscal 2019, funding for the increased PHMSA workload will be transferred from FERC's accounts, according to the MOU. FERC's work is largely applicant-funded, and the agency in June sent letters to some project developers asking that they "consider providing a third party contractor" to assist the agency in reviewing the fire safety portion of project engineering plans (Energywire, July 18).
The LNG industry has long complained of scheduling uncertainty in part stemming from the Energy Department's open-ended "national interest" review and from FERC's more structured siting and safety permitting. FERC officials have recently said staffing shortages have slowed the agency's consideration of pending projects, and the agency has faced pressure from members of Congress to address the issue (Energywire, Aug. 22).
In announcing the interagency agreement, FERC Chairman Kevin McIntyre said FERC "is pleased to collaborate with PHMSA to better leverage each agency's expertise and to process LNG applications in the safest and most efficient way possible."Paying for the next wave of exports
Despite the complexity of LNG permitting, financing is often the biggest hurdle export projects face. The United States saw a group of export projects reach "final investment decision," or FID, between 2011 and 2015, but then came a drop-off in the announcement of FIDs in 2016 through this year as construction began on the first wave of projects and global markets responded to the promised surge of LNG supply with a pause in new contracts.
Recently, industry stakeholders have said a shift in world LNG markets away from strong seller control toward more buyer flexibility has made it more difficult for potential exporters to sign long-term contracts with buyers that would, in turn, help them line up financing and reach decisions to proceed. Concern about the climate profile of natural gas and opposition to pipeline and export terminal build-out in parts of the United States have also slowed some projects.
Fred Hutchison, who leads the industry advocacy group LNG Allies, praised FERC for responding to pressure on the schedule issue.
"The next wave of U.S. LNG projects face stiff competition from LNG plants proposed in Australia, Canada, Qatar, and Russia. The FERC commissioners understand the reality of the global natural gas marketplace and are doing all they can to make sure that proposed U.S. projects receive their federal permits in a timely manner," he said in a statement.
Hutchison said the next priority for industry is to ensure that a fifth FERC commissioner is nominated and confirmed so that projects can go forward once FERC staff work is completed. Commissioner Robert Powelson stepped down at the end of July. "That will ensure that FERC can meet the relatively short LNG timelines that were just announced," he said.
https://www.eenews.net/energywire/2018/09/05/stories/1060095805

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Democrats Look to Amend Bill to Push Small-Scale Exports

Sep 5, 2018 | E&E Daily

By Sam Mintz

The House will debate two Democratic amendments this week to a bill aimed at expediting small-scale natural gas exports.
The legislation, H.R. 4606 from Rep. Bill Johnson (R-Ohio), would direct the Department of Energy to automatically approve applications to export 0.14 billion cubic feet of gas per day or less, as long as they do not require an environmental assessment under the National Environmental Policy Act.
Johnson and the Republican majority have said it would provide certainty to American companies hoping to export liquefied natural gas to markets like the Caribbean.
But Democrats are arguing both that the bill is unnecessary because it would replicate a DOE regulation that was finalized in August and that an "unrestricted" natural gas export policy could lead to higher gas prices and exacerbate climate change.
In a Rules Committee meeting on the bill last night, Georgia Republican Rep. Rob Woodall defended the legislation against those claims.
"Either of those could be true. This is the law of the land so the bill changes nothing, or this bill is going to make dramatic changes to the law of the land, and thus consequences for consumers may occur," Woodall said. "What I don't understand is how both can be true."
Johnson, the sponsor of the legislation, also made an argument last night against Democrats' suggestion that H.R. 4606 could allow companies to skip the review process for larger projects by splitting them into smaller pieces that would qualify for the expedited process.
"These LNG companies are building to economies of scale. The financial viability of stacking or combining many small-scale trains is simply not viable," he said. "The operating costs would surely cause the cost of the gas to be uncompetitive in the global market."
Johnson also said his staff had consulted with DOE's Office of Fossil Energy and been assured the agency would not accept requests by LNG companies trying to combine more than one small-scale export authorization.
One of the amendments that will be up for debate when the bill hits the House floor, from Rep. Diana DeGette (D-Colo.), would require export applications to show that the gas to be exported was produced using techniques to minimize methane emissions.
The other, from Rep. Frank Pallone (D-N.J.), ranking member on the Energy and Commerce Committee, would require a hearing and public input on applications before they are approved.
The Rules Committee declined to make in order two other Democratic amendments.
https://www.eenews.net/eedaily/2018/09/05/stories/1060095785

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Details Remain Murky on Tentative U.S.-Mexico Trade Pact

Sep 4, 2018 | Natural Gas Intelligence

By Charlie Passut

After President Trump declared in late August that the United States and Mexico had reached a tentative trade agreement that could replace the North American Free Trade Agreement (NAFTA), the energy industry was still scrambling for details.
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Story can be found here: http://www.naturalgasintel.com/articles/115658-details-remain-murky-on-tentative-us-mexico-trade-pact

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Chemical Security News

Appellate Court Pulls Order to Quickly Implement RMP

Sep 4, 2018 | Inside EPA

A federal appellate court has withdrawn its order striking down the Trump EPA's delay of an Obama-era rule tightening facility safety requirements, saying it “inadvertently” issued its mandate, a procedural step finalizing its ruling, following environmentalists' request and will give EPA and other litigants one day to oppose advocates' request.
In a Sept. 4 order, a panel of the U.S. Court of Appeals for the District of Columbia Circuit withdrew its mandate issued last week finalizing its Aug. 17 ruling that vacated the Trump administration's lengthy delay of an Obama-era rule strengthening EPA's Risk Management Plan (RMP) facility accident prevention program.
“Upon consideration of the motion of Industry respondent-intervenors to reconsider the issuance of the mandate, and the response in support, and the motion of State respondent-intervenors to reconsider the issuance of the mandate, and it appearing that the court’s mandate inadvertently issued on August 31, 2018,” the court orders EPA to “return the mandate forthwith to the” D.C. Circuit.
The court gives EPA, states, and industry intervenors until Sept. 5 at 4 pm. to respond to environmentalist petitioners' Aug. 24 request for expedited issuance of the mandate finalizing the court's ruling in the case, Air Alliance Houston, et al., v. EPA and Andrew Wheeler.
The court's reversal follows a flurry of Aug. 31 emergency requests from GOP-led state and industry intervenors, backed by EPA, that faulted the court's decision to swiftly issue the mandate finalizing its ruling as violating procedural rules that seek to ensure litigants a chance to respond to such a request.
Specifically, the industry intervenors, backed by EPA, argued that quickly finalizing the ruling violated a provision in the Federal Rules of Appellate Procedure that sets a 10-day period for responding to petitioners' Aug 24 filing.
The groups say the court never gave them notice of the decision to grant the mandate request, violating the 10-day period rule.
EPA and a coalition of industry groups said they had planned to respond to environmentalists' request for expediting issuance of the mandate on Sept. 4.
Those filings responded to a two-judge panel of the court's Aug. 31 decision to grant environmentalists' novel request to quickly issue its mandate for the Aug. 17 ruling scrapping the Trump administration's delay of the RMP update rule.
Advocates had requested an expedited mandate, arguing that further postponing implementation rewarded EPA's illegal delay of the rule, put millions at risk from future disasters, and that EPA was unlikely to prevail in any appeal.
Prior to the court's granting advocates' request for expedited issuance of the mandate, the deadline for EPA appealing was slated for around Oct. 8.
In the lawsuit, critics challenged the Trump administration's delay of the RMP rule as violating a Clean Air Act limit on delays for purposes for reconsidering final rules, and the law's requirement to quickly implement new protections.
The two-judge panel of the D.C. Circuit agreed, vacating the delay rule but not immediately issuing its mandate in the case. Judge Brett Kavanaugh and two other judges heard oral argument in the case, but Kavanaugh did not participate in the ruling while his nomination to be the next Supreme Court justice is pending in the Senate.
https://insideepa.com/daily-feed/appellate-court-pulls-order-quickly-implement-rmp

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DOE, Industry to Prepare Cyber Emergency Plans

Sep 5, 2018 | E&E Energywire

By Peter Behr

The Department of Energy and U.S. grid operators need detailed emergency operating plans to combat a state-backed cyberattack, says a former Defense Department official.
Further, he says, "harsh and politically contentious" options should be on the table when there's a cyber crisis to ensure the power is left on for critical military, energy and public safety needs.
Doing so would necessarily leave some lower-priority customers of all kinds without power, or facing rolling blackouts, until the crisis was over. But that could prevent the beginnings of an attack from causing cascading failures, while limiting damaging outages, Paul Stockton, former assistant DOD secretary for homeland defense, said in a paper published by the Johns Hopkins University Applied Physics Laboratory.
"Government officials — and, ultimately, the president — should make such decisions and provide political top cover and liability protections for power companies that implement them," Stockton said.
"One of the interesting hypothetical situations is, if one city is completely unoperational [after a cyberattack] and another is 100 percent, who decides to take from the one and make two that are 50 percent? That isn't a decision industry wants to make or is equipped to make," said Scott Aaronson, the Edison Electric Institute's vice president for security and preparedness.
DOE and electric power companies are working with the North American Transmission Forum to develop a series of action plans that the Energy secretary would use in ordering emergency actions, Aaronson said. The forum is an industry group working on transmission technology and policy.
The project's first product will be emergency operating plans to respond to a massive solar storm triggering electromagnetic disturbances that could black out large parts of North America and potentially disable transformers. That was a good place to start because the extensive research already done on the threat will guide the response planning, Aaronson said.
"We will build out teams to look at the various scenarios and build out templates," said Aaronson, who is also secretary of the Electricity Subsector Coordinating Council, the highest-level government and industry cybersecurity strategy panel. The timing of these reports isn't settled. "It's up to the engineers," he said.
"This will never be a process that's finished," he added.
For a decade, power companies have been strengthening defensive shields against cyberattacks, following mandatory rules in the case of regulated companies and voluntary guidelines for the others.
Stockton said his paper, based on interviews with government and industry experts, is meant to help the sector prepare for attacks that get through.
Road map of options
In 2015, Congress gave the secretary of Energy broad authority to direct power company operations during a presidentially declared grid emergency. But it provided little guidance about what DOE orders should do, said Stockton, managing director of security consulting firm Sonecon LLC and an adviser to Exelon Corp. and other energy companies.
"The secretary of energy's new authorities are so vast that they entail a potential risk: issuing ill-conceived, poorly coordinated emergency orders could hurt rather than help power company operations," Stockton wrote.
"DOE and industry have only begun to figure out how to use this authority to actually be helpful during cyberattacks as opposed to getting in the way, or worse," he added in an interview. He called on DOE and energy companies to create an emergency playbook of grid defensive moves, a road map of options to use before, during and after a major cyberattack.
"You can't wave a magic wand and use this authority," Aaronson said. "It has to have a process behind it. What we don't want to do is write these orders in the middle of these incidents."
Aaronson said Stockton's report is important "because it brings together in one place a lot of the considerations regarding the president's and the secretary of Energy's new emergency authority."
Utilities should develop methods for running their power operations when international cyber tensions increase, Stockton said — for example, keeping some power plants that are not needed for normal operation in active standby status to speed a response to an attack.
The planning would also speed recovery after a natural disaster that takes down transmission lines or gas pipelines, Stockton said. Potential attackers who realize recovery has been planned for could be deterred, he said. "If we can really get the bulk [interstate] power back on quickly and sustain flows to critical facilities, it makes attacking it a lot less tempting," he said.
As the plans take shape, DOE and the industry may need to return to Congress for more legislation on potential legal vulnerabilities for power companies taking emergency actions, and for additional financial support, Stockton said.Threat headlines
The potential threat of cyberattacks on the nation's critical energy infrastructure jumped back into headlines last month following a series of unusual unclassified public briefings by the Department of Homeland Security.
Jonathan Homer, chief of the industrial control systems group at DHS's Hunt and Incident Response Team, said a wide-ranging intrusion attack originating in Russia, according to federal officials, had hit an unspecified number of U.S. energy facilities over the past year.
"They got to the point that they could turn the switches" to shut down equipment, Homer said. The Russian government has denied responsibility.
After an alarming response to that disclosure, DHS clarified that only a single U.S. generator suffered a breach of its control systems — a small wind turbine installation, whose loss would have posed no threat to the surrounding grid, officials said (Energywire, Aug. 1).
That conclusion was repeated yesterday by EEI and the nation's two other major electric power groups, the National Rural Electric Cooperative Association and the American Public Power Association, in a letter to Sen. Ed Markey (D-Mass.) responding to his query about the DHS briefing.
The intrusion campaign was detected last summer, triggering alerts to U.S. power companies, the groups said (Energywire, June 27, 2017). The DHS briefing, they said, "rehashed the event from a year ago — there was no new security incident."
"Clarifications aside, the threat from nation states, such as Russia, and from many other adversaries that may wish to harm the energy grid, is real and growing," the organizations' letter said.
"There absolutely are situations where some pretty sophisticated campaigns are trying and failing," Aaronson said in an interview. "Sometimes they are trying, succeeding and getting caught, and are remedied."
Energy consultant Tom Alrich, who writes a blog on grid security regulation, noted that DHS's account of the attack had changed several times within a week and speculated on whether that revealed differences within DHS about the handling of the threat.
"I find it hard to believe that it's just the normal fog of war that led to these contradictions. In any case, a single definitive statement of what happened, issued by someone presumably above the fray and the factions, could settle this," he said.
https://www.eenews.net/energywire/2018/09/05/stories/1060095803

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Transportation and Infrastructure News

With Pipelines Full, Oil and Gas Companies Turning to Trucks, Rail

Sep 4, 2018 | Houston Chronicle

By Rye Druzin

Oil producers in the Permian Basin, dealing with a shortage of pipelines, are increasingly turning to trucks and rail to ship the flood of crude from the West Texas oil field to refineries and export terminals on the Gulf Coast.
These transportation shifts are driven by two simple math problems. First, crude oil production in the Permian has reached 3.6 million barrels a day, while pipeline capacity out of the region is just 3.5 million barrels a day, according to the energy research firm Wood Mackenzie. Next, crude is selling for as much as $10 more a barrel in South Texas, the Gulf Coast and other markets outside of West Texas, where inventories are building in part because of the lack of pipeline capacity
The latest effort to move oil to more lucrative markets was launched earlier this week, when the Houston oil transport company JupiterMLP signed a deal with Vista Proppants and Logistics of Fort Worth to ship West Texas crude by rail from Vista’s loading terminal in Pecos. Vista plans to ship about 400,000 barrels a month from its Pecos terminal through 2019 and potentially into 2020, depending on when pipeline projects are completed.
It’s unclear how much of crude Vista will handle for JupiterMLP, which has completed permitting to build a processing and export terminal at the Port of Brownsville and plans a 670-mile pipeline from West Texas to the export terminal. Neither company responded to requests for comment.
Pipeline capacity has become a particular problem in the Permian, as booming production of both crude and natural gas has exceeded capacity and created bottlenecks. Several companies, including Kinder Morgan and Phillips 66 Partners, both of Houston, are racing to complete pipeline projects, but most are not expected to begin operations until at least next year.
The bottlenecks, meanwhile, are not only having an impact on prices in West Texas prices, but also production. The Railroad Commission of Texas, which oversees the oil and gas industry, recently reported that oil production in the state — most of it concentrated in the Permian — declined about 2 percent in June, compared to the same month a year earlier, the first year-over-year decline since early 2017. Analysts attributed the decrease to the pipeline shortage.
A recent analysis by the London consultancy Westwood Global Energy Group estimated that pipeline constraints could delay as much as $1.4 billion of investment in the Permian and keep 345 wells from getting completed in the second half of this year. That means the wells have been drilled, but not hydraulically fractured, or fracked, to begin producing oil and gas.
The number of these drilled but uncompleted wells, known as DUCs, have increased significantly in the Permian. The Department of Energy estimated 3,470 DUC wells in the Permian in July, up 80 percent from just over 1,900 a year earlier.
Production companies big and small are contracting for pipeline capacity on yet-to-be completed and cutting deals with trucking companies and rail carriers to get their crude out of West Texas to other markets in the meantime. Union Pacific Railroad, one of the largest rail operators in the country, has seen a recent uptick in crude oil coming out of the Permian, said company spokesman Jeff DeGraff, though he wouldn’t cite specific figures.
Oil companies have also turned to the trucking industry to transport their crude, potentially adding more stress on an industry that is already under pressure from driver shortages and the demands of hauling record amounts of sand and water for fracking and moving drilling rigs and equipment from one site to another.
Matt Nevarez, the director of operations for the Midland trucking company TexStar Crude Transport in Midland, said demand for shipping crude is so strong that his company is hiring trucks out of San Antonio to carry oil from West Texas to South Texas markets in Three Rivers, Cotulla, and Victoria. When asked which companies were moving oil by truck, Nevarez said, “All of them.”
“The market spread for what they can sell a barrel for in South Texas versus Midland, it’s huge, so everybody’s wanting to get their oil down there,” Nevarez said.
But environmentalists worry that all of these extra trucks on the road carrying crude oil and trains going through populated areas could pose a public health risk. Luke Metzger, the director of the advocacy group Environment Texas, pointed to the oil train accident and explosions in the Canadian town of Lac-Mégantic that killed more than 40 people when a train full of North Dakota crude oil derailed in the middle of town and exploded.
Metzger said he doesn’t believe that many people in the state are aware of dangers posed by increased shipments of crude by truck and rail.
“That’s unfortunate because these could be very dangerous and people need to know that this could be going to a neighborhood near them soon,” Metzger said.
Relief may be coming in the form of what John Coleman, a senior research analyst at Wood Mackenzie calls three mega pipeline projects. Totaling 2.1 million barrels of capacity, they are the EPIC Crude Oil Pipeline, the Gray Oak Pipeline, and the Cactus 2 Pipeline. All aim to be completed by the end of 2019.
https://www.houstonchronicle.com/business/energy/article/With-pipelines-full-oil-and-gas-companies-13197758.php

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Environment News

Dire Climate Change Warnings Cut from Trump Power-Plant Proposal

Sep 4, 2018 | BNA Daily Environment Report

By Jennifer A. Dlouhy

Warnings about potentially severe consequences of climate change were deleted from a Trump administration plan to weaken curbs on power plant emissions during a White House review.
Drafts had devoted more than 500 words to highlighting the impacts—more heat waves, intense hurricanes, heavy rainfalls, floods, and water pollution—as part of the proposal to replace Obama-era restrictions on greenhouse gas emissions. That language was left out of the Trump administration’s final analysis of the Environmental Protection Agency proposal, when it was unveiled Aug. 21.
Among the abandoned assertions: an acknowledgment that “the climate has continued to change, with new records being set” for global average surface temperatures, Arctic sea ice retreat, carbon dioxide concentrations, and sea level rise, all markers of the phenomenon.
The administration also scrapped a reference to numerous “major scientific assessments” that “strengthen the case that GHGs endanger public health and welfare both for current and future generations.”
Internal documents from a White House-led interagency review of the proposal reveal the decision to spike the language, but not the rationale for doing so nor who ordered it omitted. The documents, recently released online, show the deletions came during last-minute August edits to the plan’s regulatory impact analysis.
The abandoned assertions would have represented surprisingly candid admissions for an administration stacked with officials who have questioned how much human activity drives climate change and led by a president who once suggested global warming was a hoax perpetrated by the Chinese.
Greenhouse Gas Regulation
The spiked language also would have provided more justification for government regulation of greenhouse gas emissions, further tying the EPA’s hands on the issue.
“It’s clear that EPA decided that it needed to hide any discussion of the harmful impacts of climate change in the regulatory analysis in order to justify, and avoid undermining, the Clean Power Plan rollback,” said Amit Narang, a regulatory policy expert with Public Citizen.
The initial documents underscore the durability of the government’s scientific machine—including the career officials who study climate change—even as the Trump administration seeks to cut research on the phenomenon and whittle regulations aimed at combating it.
The EPA acknowledged revisions during the regulatory review but did not explain why they were made.
“As a result of the interagency review process, a number of changes were made to the proposed ACE rule and its accompanying materials,” said EPA spokeswoman Molly Block. “EPA looks forward to receiving comment on a variety of these issues during the public comment period.”
In the end, the government’s analysis included just 13 specific references to “climate change.” The analysis also included a slimmed-down reference to EPA’s obligation to regulate emissions, without any talk of impending catastrophe.
“In 2009, EPA administrator found that elevated concentrations of greenhouse gases in the atmosphere may reasonably be anticipated both to endanger public health and to endanger public welfare. It is these adverse impacts that necessitate EPA regulation of GHGs from” power plants, the final document said. ‘‘Since 2009, other science assessments suggest accelerating trends.”
Endangerment Finding
The administration also backed off from a plan to seek public comment on the appropriateness of the EPA’s landmark conclusion that greenhouse gas emissions endanger the public health and welfare. That endangerment finding, as it is known, serves as the legal underpinning for a suite of regulations designed to combat climate change.
EPA Acting Administrator Andrew Wheeler has said he would not reopen the endangerment finding, but conservatives are petitioning the agency to revisit the issue.
https://news.bloombergenvironment.com/environment-and-energy/dire-climate-change-warnings-cut-from-trump-power-plant-proposal?context=landing&limit=30&tab=news

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CPP Backers Renew Push For D.C. Circuit To Issue Long-Delayed Ruling

Sep 4, 2018 | Inside EPA

By Lee Logan

States and environmentalists that support the Obama EPA's Clean Power Plan (CPP) utility greenhouse gas rule are renewing their calls for an appellate court to issue its long-delayed ruling on the merits of the policy, a move that likely would create hurdles for Trump EPA efforts to replace the rule with a much narrower measure.
In a Sept. 4 motion to the U.S. Court of Appeals for the District of Columbia Circuit, a coalition of 17 states led by New York, several municipalities and environmental groups urge the court to lift its abeyance in West Virginia, et al. v. EPA, et al., which has been in place for a year and a half, and issue a long-awaited merits ruling.
Although the court heard argument in the case in September 2016, it has not issued its ruling, instead granting a series of requests from EPA to keep the case on hold while the agency pursues a repeal of the CPP and a plan to replace it with the more-limited Affordable Clean Energy (ACE) proposal to regulate power plant GHGs.
But the coalition argues that the litigation pause, combined with the Supreme Court's regulatory stay preventing the Obama administration from implementing its CPP that is still in place, has allowed the agency to avoid its Clean Air Act duty to regulate GHGs from the largest stationary source of emissions, power plants.
“EPA, with Petitioners’ support, has taken undue advantage of the abeyance, prolonging the delay through a series of notices that do not come close to fulfilling EPA’s statutory obligations,” the states and environmental groups write.
The motion comes just days after EPA issued its ACE proposal to replace the CPP with a much narrower measure that focuses on improving coal plants' efficiency.
However, the CPP backers note that proposal does not include any federal limits on GHGs but merely outlines efficiency projects that states can consider requiring for coal plants located within their borders. They also charge that an eased new source review (NSR) permitting threshold in the rule “could actually increase overall emissions of carbon dioxide and other pollutants.”
“EPA’s and Petitioners’ original reasons for holding this case in abeyance, viewed in light of the passage of a year and a half, simply do not hold,” the motion argues. It notes that the ACE proposal is premised on the fact that the Clean Air Act requires EPA to regulate power plants' GHGs but prohibits the standard-setting procedure the CPP employed.
“These are the same legal questions that have been fully briefed and argued to this Court,” the motion says.
The motion comes after three D.C. Circuit judges in June publicly expressed unease at maintaining the court's abeyance in West Virginia, with two of the judges suggesting they would support sending the rule back to EPA -- a step that might eventually lift the high court stay.
Environmentalists in late July asked the high court to require CPP opponents to explain why the stay should remain in effect.
The D.C. Circuit's June 26 abeyance lasted for 60 days, meaning the court soon must consider whether to extend the pause in the case, remand the CPP to EPA or issue its merits ruling.
Shortly after EPA issued its ACE proposal, the agency urged the court to continue its abeyance. A separate group of states and industry groups opposed to the Obama rule echoed those arguments, charging that Trump officials are “proceeding expeditiously” to replace the CPP. They said they expect the current rulemaking to conclude in the next five to six months.
Abeyance Not 'Efficient'
But the CPP supporters argue that there is “nothing efficient about delaying the disposition of fully-briefed legal issues in a live case to await the outcome of a lengthy new rulemaking involving the same issues, and the inevitable court challenges that will follow.”
They cite a pair of recent adverse D.C. Circuit rulings concerning EPA's utility coal ash regulations and its attempt to delay implementing Obama-era facility risk management rules.
They add that a D.C. Circuit merits ruling in West Virginia might “influence EPA’s ongoing administrative process by explicating the relevant law, but it would not block EPA from revising or replacing the Clean Power Plan consistent with its statutory obligations.”
Further, they take issue with claims by CPP opponents that holding a case in abeyance is “ordinary practice” when an agency reviews a challenged rule. The states and environmentalists say West Virginia “is no ordinary case” because there has been no other “instance in which this Court has held a challenge in abeyance where the challenged rule was judicially stayed, much less one where the combination of stay and abeyance resulted in an unmet mandatory statutory obligation.”
Following the September 2016 en banc oral arguments in the CPP case, many legal observers expected the D.C. Circuit to largely uphold the Obama regulation, particularly regarding the crucial question of whether EPA can set GHG limits based on actions taken “beyond the fence” of a regulated plant, such as fuel switching to natural gas or renewables.
The ACE proposal all but says the Clean Air Act restricts standards to those “within the fenceline” of the plant -- a legal interpretation that could create an important precedent potentially blocking future administrations from pursuing broad GHG controls.
https://insideepa.com/daily-news/cpp-backers-renew-push-dc-circuit-issue-long-delayed-ruling

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9th Circuit Backs Approval of EPA Mont. Plan

Sep 4, 2018 | E&E News PM

By Sean Reilly

A federal appeals court has endorsed EPA's approval of a Montana air quality plan, notwithstanding cloudiness in the language surrounding a key aspect of the New Source Review permitting program.
Because EPA's interpretation of "ambiguous text" was permissible, its 2016 sign-off on the revised Montana state implementation plan "was not arbitrary or capricious," a three-judge panel on the 9th U.S. Circuit Court of Appeals wrote in a unanimous ruling last week.
The decision rejected a 2016 legal challenge brought by the Montana Environmental Information Center (MEIC). The advocacy group had argued the revised state plan failed to meet minimum requirements for Prevention of Significant Deterioration, the portion of the New Source Review program that applies to areas in compliance with national air quality standards for ozone and other common pollutants.
If an existing plant undergoes an expansion or some other upgrade that qualifies as a "major modification," the operator is then supposed to get a pre-construction permit intended to ensure that a particular project won't significantly worsen air quality.
The suit was linked to the question of what yardstick to use in determining whether a project would lead to more pollution. The MEIC contended that the Prevention of Significant Deterioration program requires regulators to look at actual emissions data for the two-year period "immediately preceding" the project.
The group said the reading adopted by the Montana Department of Environmental Quality fell short because it could allow the use of emissions data from "a two-year period" that might have occurred some time earlier. Thus, the group argued, EPA should not have approved the revised state plan.
In its ruling, the 9th Circuit panel noted that although the Clean Air Act uses the phrase "a two-year period which precedes the particular data [of construction]," EPA had adopted an interpretation requiring the use of emissions data from "'the' two-year period immediately preceding" a modification. Given the ambiguity in the statutory language, EPA's interpretation was reasonable, the court ruled.
The panel also agreed with EPA that the issue raised by the MEIC posed a question "of implementation of a program rather than approval of a plan." That implementation question, the judges wrote, would be "better addressed at a different time."
https://www.eenews.net/eenewspm/2018/09/04/stories/1060095759

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17 States Urge Court to Reject EPA Bid to Freeze Litigation

Sep 4, 2018 | E&E News PM

By Jeremy P. Jacobs

Seventeen states and other parties urged a federal appeals court today to reject EPA's request to keep litigation concerning the Clean Power Plan on hold.
EPA asked the U.S. Court of Appeals for the District of Columbia Circuit last week to continue holding the complex litigation on the Obama-era rule in abeyance as it moves forward with its replacement Affordable Clean Energy rule (Greenwire, Aug. 27).
But New York, California, other states, several cities and environmental groups today said the D.C. Circuit should reject the request and accused EPA of using the legal tactic to avoid regulating heat-trapping carbon dioxide.
"EPA is using abeyance to circumvent the requirement ... that an agency must give good reasons to delay implementation of a regulation; its mere desire to reconsider the regulation is insufficient," the coalition wrote.
It argued that the case has been in abeyance for almost 1 ½ years, "during which time the Environmental Protection Agency (EPA) has not implemented any regulation to fulfill its mandatory duty to protect the public from dangerous air pollution."
"This court should reject this bid and decide the live controversy before it," the coalition wrote.
The Supreme Court voted 5-4 to grant a stay of the Clean Power Plan in February 2016. The D.C. Circuit heard arguments in the case later that year.
After President Trump was elected, EPA asked the court in March 2017 to hold off on deciding the case as it considered revising or repealing the rule.
Some D.C. Circuit judges have expressed frustration with the Trump administration's delay. That in part led to the release of the draft Affordable Clean Energy rule, a more limited proposal than the Clean Power Plan that would give states far more flexibility in devising measures to reduce emissions at a facility level.
Critics, including those who filed the opposition motion today, contend that the Trump administration proposal could actually increase emissions of overall carbon dioxide and other pollutants.
EPA has said it plans to finalize the rule in early 2019.
https://www.eenews.net/eenewspm/2018/09/04/stories/1060095755

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Massachusetts Emissions Rules Apply to Power Plants, Court Says

Sep 4, 2018 | BNA Daily Environment Report

By Adrianne Appel

Massachusetts electric power producers are subject to the state’s carbon emissions caps, the state’s highest court ruled Sept. 4.
The New England Power Generators Association argued in a September 2017 complaint that the carbon reductions under a 2008 state law, aimed at reducing greenhouse gases, shouldn’t apply to them. The association, whose members include Emera Inc., Dominion Energy Inc., and Entergy Corp., argued emissions from the electric power sector are already regulated under a regional carbon reduction program. The group also argued that 2017 state carbon reduction rules would increase emissions, not lower them.
But “none of these arguments is meritorious,” Justice Scott L. Kafker wrote in the ruling of the Massachusetts Supreme Judicial Court Sept. 4. “The Global Warming Solutions Act was passed to address the grave threats that climate change poses to the health, economy and natural resources of the Commonwealth.”
Electric power producers must comply with any emissions reduction rules that the department creates, as called for under the Global Warming Solutions Act, the court said.
The association is unlikely to pursue further legal action and instead will continue to comply with the rule, Dan Dolan, president of the New England Power Generators Association, told Bloomberg Environment Sept. 4.
But the new emissions rules “will make the emissions worse,” Dolan said, and will restrict the operation of Massachusetts power plants, which are among the cleanest plants in New England.
In times of high demand, electric suppliers will instead turn to dirtier, coal-fired plants in neighboring states, including Connecticut and New Hampshire, Dolan added.
Less Fossil Fuels
The Department of Environmental Protection issued rules in August 2017 that power plants must reduce their carbon emissions by 2.5 percent per year through 2050.
Massachusetts also directed electric suppliers to buy an increasing amount of power from nonemitting renewable sources, like wind and solar. This would help the state achieve the 2008 Global Warming Solutions Act goal to decrease carbon emissions 80 percent below 1990 levels by 2050.
The state was required to issue the rules after the Conservation Law Foundation, an environmental group, successfully argued in a 2014 lawsuit that the state was not complying with the 2008 law.
The court’s opinion is a resounding call for the electricity sector to offer climate solutions rather than resistance and roadblocks,” Bradley Campbell, president of the Conservation Law Foundation, said in a statement.
The case is New England Power Generators Ass’n v. Dep’t of Envtl. Prot., Mass., SJC 12477, 9/4/18.
https://news.bloombergenvironment.com/environment-and-energy/massachusetts-emissions-rules-apply-to-power-plants-court-says-1?context=landing&limit=30&tab=news

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