Preview Newsletter
AM ACC 11/13/2018
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EPA Reorganization Gives Cover For Enforcement Cuts, Union Official Says
Nov 13, 2018 | Inside EPA
By David LaRoss
An EPA union official says the agency's upcoming restructuring of its regional offices appears designed to overhaul existing enforcement policies and chains of command, likely bolstering political leadership's ability to push reduced regional enforcement and more-lenient compliance... -
(ACC Mentioned) Jobs NGOs Report Spike in US Asbestos Imports
Nov 13, 2018 | Chemical Watch
Imports of asbestos to the US are "surging", according to two NGOs which are calling for a widespread ban on the substance’s use. -
US Midterms Trigger Leadership Shifts for Federal Chemical Legislation
Nov 13, 2018 | Chemical Watch
By Kelly Franklin and Lisa Martine Jenkins
The split in US legislative power following last week’s midterm elections carries with it a range of implications for federal chemicals policy. -
Environmentalists Resist EPA's TSCA 'Uses' Claims
Nov 13, 2018 | Inside EPA
Environmental and labor groups challenging the Trump administration's rules for prioritizing and evaluating existing chemicals under the revised toxics law are rejecting EPA assertions that the law grants broad discretion to determine the chemical uses... -
Hearing to Address 'Man-Made Drinking Water Crises'
Nov 13, 2018 | E&E Daily
By Courtney Columbus
A Senate field hearing today will delve into some of the challenges communities face in dealing with industrial chemicals that have contaminated drinking water in Michigan and other states. -
Report: Elections Could Drive New Efforts to Address Lead in Drinking Water
Nov 12, 2018 | Inside EPA
By Lara Beaven
EPA's limited response to the Flint, MI, drinking water crisis has prompted several states in the Northeast and Midwest to enact state laws to address lead contamination in municipal water supplies and schools, and while these state actions still fall short of what is needed... -
Bayer Hit by More Lawsuits Over Safety of Roundup Weedkiller
Nov 13, 2018 | Wall Street Journal
By Ruth Bender
Bayer AG BAYRY -4.29% on Tuesday disclosed another jump in the number of lawsuits alleging the German company’s recently acquired weedkillers cause cancer in a sign that an issue that has wiped billions off Bayer’s market valuation isn’t fading away. -
LWCF, Offshore Drilling Debates Will Shape Year-End Efforts
Nov 13, 2018 | E&E Daily
By Kellie Lunney and Geof Koss
Legislative efforts to permanently renew a beloved land and water conservation program, boost revenue-sharing for Gulf of Mexico states and create a $6.5 billion fund to improve maintenance at national parks could complicate the path forward... -
Trump Can’t Undo Arctic Protections, Environmental Groups Tell Judge
Nov 10, 2018 | BNA Daily Environment Report
By Jill Burke
President Donald Trump overstepped his authority in opening Arctic waters and deep canyon shelves in the Atlantic Ocean to oil and gas drilling, environmental groups told a federal judge in Alaska on Nov. 9. -
Where Does Keystone XL Go from Here?
Nov 13, 2018 | E&E Energywire
By Pamela King
A federal judge's ruling last week threw a major roadblock in the path of the Keystone XL pipeline, prompting questions over next steps for the project and market implications of the court order. -
Clean Energy Is Surging, but Not Fast Enough to Solve Global Warming
Nov 12, 2018 | New York Times
By Brad Plumer
Over the next two decades, the world’s energy system will undergo a huge transformation. Wind and solar power are poised to become dominant sources of electricity. China’s once-relentless appetite for coal is set to wane. The amount of oil... -
Grid Planners Put 'Black Start' Technology to the Test
Nov 13, 2018 | E&E Energywire
By Blake Sobczak
Three inflated air dancers flapped incongruously over a deserted laboratory. -
EPA Sends PM2.5 'Precursor' Air Quality Planning Guide for OMB Review
Nov 12, 2018 | Inside EPA
EPA has sent for White House Office of Management and Budget (OMB) review its final guidance on how states can account for precursor substances that form fine particulate matter (PM2.5) emissions in the atmosphere when undertaking state air quality planning... -
Trump, California Battle over Climate and Cause of Fires
Nov 12, 2018 | The Hill - E2 Wire
By Miranda Green and Timothy Cama
President Trump and California’s political leaders are engaging in a war of words over the cause of wildfires that have devastated the state, killing at least 31 people. -
Pelosi's First Band of Climate 'Misfits'
Nov 13, 2018 | E&E Climatewire
By Robin Bravender
The last time Nancy Pelosi launched a special climate change committee, things got ugly. -
ACE Comments Spark Contentious Debate over Legality of NSR Changes
Nov 13, 2018 | Inside EPA
By Dawn Reeves
EPA is facing starkly different interpretations of the legality of its plan to ease the threshold for triggering strict new source review (NSR) air permits for coal plants complying with its proposed utility climate rule...
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EPA Reorganization Gives Cover For Enforcement Cuts, Union Official Says
Nov 13, 2018 | Inside EPA
By David LaRoss
An EPA union official says the agency's upcoming restructuring of its regional offices appears designed to overhaul existing enforcement policies and chains of command, likely bolstering political leadership's ability to push reduced regional enforcement and more-lenient compliance while limiting the national enforcement office's oversight of regions.
In an exclusive interview with Inside EPA, Association of Federal Government Employees (AFGE) Local 704 Chief Steward Nicole Cantello said that following a Nov. 8 briefing from officials at the Region 5 offices in Chicago, the staff union sees the prospect of newly-appointed regional enforcement heads as a way for the Trump administration to clamp down on those offices' work through micromanagement.
AFGE Local 704 represents Region 5 staff in particular, and its leaders have been particularly strident in their public opposition to the Trump agenda.
“The 'new' enforcement offices under the reorg will have new upper level managers, picked by HQ, who will oversee them. This person will (1) not be pro-enforcement and (2) will run every enforcement issue by the folks in HQ offices so they can interfere and quash. That was not happening before,” Cantello said.
EPA is moving quickly on Acting Administrator Andrew Wheeler's plan to reorganize the 10 regional offices so that each has eight divisions, including region-specific enforcement divisions.
An EPA spokesperson defended the creation of new enforcement offices as an expansion of current practices that have been in place since before the Trump administration took office, telling Inside EPA that there is “no change” in how the agency plans to structure those offices.
The spokesperson says there are currently six regions with dedicated enforcement offices, while in the other four enforcement is incorporated into each of the region's program-specific offices, such as air, waste, water and toxics. The new structure will include enforcement offices at all 10 regions.
Wheeler, agency operations chief Henry Darwin and others are touting the restructuring as bolstering coordination with headquarters. But AFGE officials and other EPA staff have raised concerns that it will be a way for the administration to cut enforcement, and Cantello said those concerns deepened for the Region 5 union following its Nov. 8 briefing.
EPA under former Administrator Scott Pruitt and Wheeler has set out a series of nationwide policy directivesdesigned to curb federal enforcement actions unless they are initiated at the request of a state -- part of a broader agenda of “cooperative federalism” that aims to give states more authority over environmental policy within their borders.
But Cantello says those memos have only had limited effects on regional work, because -- at least in Region 5 and other regions without enforcement divisions -- enforcement officials are largely career staff who have discretion on day-to-day operations and cannot be fired or disciplined without cause.
'Political Interference'
“The management in the Regional media offices were career folks running a 'business as usual' shop where enforcement was left alone without political interference,” Cantello said.
But, she continued, the union sees overhauls of the regional enforcement structure as a way around that safeguard, because it allows Trump administration officials to add new political oversight of the career officials in charge of enforcement.
“They created a structure where they could put 'new' management in charge of enforcement, who could stop enforcement from happening at the very earliest stages, before data and cases were developed, before there is any evidence that a public health risk is being suppressed,” Cantello said.
Moreover, she said, it is “fascinating” that the regional enforcement chiefs will report only to their respective regional administrators, and not to the national Office of Enforcement and Compliance Assurance (OECA) headed by Assistant Administrator Susan Bodine.
“[T]he fact that the enforcement head is not a direct report to Bodine is fascinating, if true. Bodine is turning out to be a relatively apolitical lawyer-type. [EPA General Counsel Matt] Leopold, [EPA air chief Bill] Wehrum and friends are more interested in EPA’s political side, i.e. bringing relief to polluters,” she said.
However, the EPA spokesperson said that reporting structure is already in place for the six regional enforcement offices.
“Currently six regions have enforcement divisions. The enforcement division director reports to the regional administrator. In the realignment, all 10 regions will have enforcement divisions. The division directors will continue to report to the regional administrators. That is not a change,” the spokesperson told Inside EPA.
Reorganization Procedure
Cantello said that at the Nov. 8 briefing, officials framed the regional overhaul as a “realignment” rather than “reorganization” -- which she said seems aimed at avoiding a requirement for Congress to approve major changes in how a federal agency operates. Reorganizations require legislative review and approval, while realignment only requires the agency to notify Congress of its planned changes.
The “notification” requirement could arguably be satisfied by Darwin's Oct. 25 meeting with staff from the Senate Environment and Public Works Committee. If officials or lawmakers determine that the changes need approval from Congress, it would trigger a longer process -- but Cantello says agency officials told AFGE that they hope to have the new structure in place by the end of the year, including negotiations with the union that are required by its collective bargaining agreement.
“We don't see how all those things could happen by then, but that's their schedule,” she said.
Those negotiations will stem in part from documents EPA turned over to the union during the briefing that include new organizational charts for each regional office, and a “crosswalk” showing where each current employee will end up in the new structure.
https://insideepa.com/daily-news/epa-reorganization-gives-cover-enforcement-cuts-union-official-says
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(ACC Mentioned) Jobs NGOs Report Spike in US Asbestos Imports
Nov 13, 2018 | Chemical Watch
Imports of asbestos to the US are "surging", according to two NGOs which are calling for a widespread ban on the substance’s use.
The increase, they say, is "a major indicator that industry is not concerned about President Trump and the EPA taking any steps to ban or even reduce the use and import of asbestos".
The Asbestos Disease Awareness Organization (ADAO) and Environmental Working Group (EWG) published import statistics last month, citing data from the US International Trade Commission and the Department of Commerce.
They say that the US imported 272 metric tons of asbestos in August alone, bringing the year’s total to more than 550 tons – a jump from the 340 tons brought in throughout 2017.
Sam Nurick, a spokesperson for the groups, told Chemical Watch that analysis of several years of data shows occasional spikes, but that August’s volume "far exceeds other high water marks".
"The jumps seem to correlate with elections where companies might think a change in Congress or the presidency will impact their ability to import – like right before the 2016 election and now leading up to a likely change in House leadership," she added. Ms Nurick spoke to Chemical Watch ahead of the midterm elections that saw such a shift take place.
The American Chemistry Council told Chemical Watch that it does not have any specific information on the import numbers. But it said that historical data "indicate import quantities can vary greatly by month, suggesting fluctuations may be routine".
Controversy over chlor-alkali exemption
The import data analysis comes as asbestos remains at the centre of controversy in the US.
Consumer advocates have been highly critical that the ongoing risk evaluation of the substance – one of the first ten being conducted under the amended TSCA – does not include legacy uses and other exposures. Meanwhile, the EPA’s proposal to impose a significant new use rule (Snur) to require notification and approval for the reintroduction of a variety of abandoned, but otherwise unregulated, uses of asbestos, also made nationwide news, amid confusion that the agency was opening the door to new uses.
The EWG and ADAO, pointing to a report from the US Geological Survey which indicates that the only remaining user of raw asbestos in the US is the chlor-alkali industry, criticised that industry for its lobbying to maintain the exemption.
"It is appalling that unlike more than 60 nations around the world, the US not only fails to ban asbestos, but allows imports to increase," said Linda Reinstein, president and co-founder of ADAO. "The time is now for the EPA to say no to the asbestos industry and finally ban asbestos without exemptions."
The ACC said that facilities that use chrysotile asbestos diaphragms, during the manufacturing process of chlorine and caustic soda, "adhere to established safety protocols to minimise potential asbestos exposure to works, the public and the environment".
"The chlor-alkali industry’s goal is that the use of asbestos continues to be protective of worker and environmental health," said the ACC.
The trade group and its members "have and will continue to work with the EPA to ensure the risk evaluation of asbestos is robust and scientifically accurate", it added.
Draft TSCA risk evaluations for asbestos and nine other substances are expected to be released in the coming months, with plans for these to be finalised by December 2019. Should the agency determine that asbestos poses an unreasonable risk to human health or the environment, the law requires that the EPA move directly to a risk management rule to address the identified concern.
The EPA indicated in its semiannual regulatory agenda that it plans to finalise the asbestos Snur in January.
https://chemicalwatch.com/71800/ngos-report-spike-in-us-asbestos-imports
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US Midterms Trigger Leadership Shifts for Federal Chemical Legislation
Nov 13, 2018 | Chemical Watch
By Kelly Franklin and Lisa Martine Jenkins
The split in US legislative power following last week’s midterm elections carries with it a range of implications for federal chemicals policy.
While the Republicans will retain control of the Senate, the Democrats will regain the majority in the House of Representatives for the first time since 2010. This will result in a parallel shift in leadership in each of the House’s 20 permanent committees, affording Democrats the opportunity to exercise greater oversight of agency activities and of the legislative process more broadly.
The new Congress will begin its session on 3 January 2019.
Many are forecasting that a Democrat-led House will seek to increase its oversight of federal agencies and their activities, including of the EPA and its implementation of TSCA.
"Pent-up energy among House Democrats in the minority will translate into an aggressive oversight agenda that will harken to the days of Chairman John Dingell (D-Michigan), with his impressive oversight infrastructure, and Henry Waxman (D-California), who ousted Dingell to lead Energy and Commerce and struck fear in all industries with his merciless investigations," law firm Arnold & Porter said in an election analysis bulletin.
In an American Chemical Society webinar on the impact of the midterms on science and chemistry regulation, Anthony Pitagno, ACS director of government affairs and alliances, and Ben Pershing, editor of the National Review, said vigorous oversight will be key in the Democrats’ approach.
"Scientific integrity will be a top issue," said Mr Pitagno. "TSCA is a little less clear. I could see a Democratic House wanting to press the EPA on how they are actually implementing TSCA, but I think the scientific integrity issues will be first out of the gate."
Shifts in leadership of key committees
House committees that deal with science policy and the environment are poised to see new leaders who have been far more critical of the Trump administration’s EPA than existing chairs.
The chairman of the House Committee on Science, Space and Technology, Lamar Smith (R–Texas), is retiring, and is likely to be replaced by Eddie Bernice Johnson (D–Texas).
Mr Smith – who opposes policies aimed at mitigating the effects of climate change – has been a vocal criticof the EPA’s Integrated Risk Information System (IRIS) programme and has threatened to pull US financial support for the International Agency for Research on Cancer (Iarc).
During the ACS webinar, the change in leadership in this committee was described as "where the single greatest change [for science legislation] can manifest itself".
Meanwhile, Frank Pallone (D–New Jersey) is slated to take over the chairman role of the House Energy and Commerce Committee from Greg Walden (R–Oregon).
As a ranking member, Mr Pallone has been highly critical of the Trump administration’s EPA, raising concernabout lack of transparency and pressing for the release of a controversially delayed PFAS toxicological profile.
He has called the TSCA ‘framework rules’, finalised under the Trump administration, a "handout to industry" and questioned former administrator Scott Pruitt about the narrowed scope of the risk evaluations of high priority chemicals under TSCA.
With the Democrats’ winning the House, Mr Pallone said he plans to "conduct vigorous oversight of the Trump administration, so Washington works again for the people not the special interests".
"There has never been a more important time to have someone like Frank Pallone assume the role of top cop on behalf of public health," said Ken Cook, president of the Environmental Working Group. "The Trump administration and pro-polluter members of Congress will finally be forced to answer for rubber-stamping toxic chemicals and pesticides on behalf of the chemical industry."
Democrats, too, will take the helm of the appropriations committee, which oversees the allocation of the government’s funds. However, even under Republican control, Congress has been largely rejecting the Trump administration’s push to dramatically slash EPA funding.
Meanwhile, Republicans still hold the Senate and therefore will retain the majority vote for administration appointments. Acting Administrator Andrew Wheeler – who took over when Scott Pruitt resigned after a controversial and scandal-plagued tenure – will manage the EPA until the president appoints, and the Senate confirms, a permanent successor.
Existing bills
While some bills will get passed during the ‘lame duck’ session between now and January, most will die in committee before next year.
But some stakeholders are already looking to specific bills that they will hope to see reintroduced in the coming session. Given the change in leadership, many stakeholders in bipartisan bills will seek a Democrat, rather than a Republican, to sponsor them.
The Household and Commercial Products Association (HCPA) says that it has been working with a coalition to get support for the Sustainable Chemistry Research and Development Act. This bipartisan legislation, which was re-introduced in 2018 after initially being floated in 2015, seeks to coordinate federal programmes and activities in support of the development of chemistries with reduced health and environmental impacts.
Mr Pitango said that the measure also is one the ACS "will be pushing for strongly" in the new Congress.
The EWG has named reform of federal cosmetics law a top priority. Congress has seen several billsintroduced seeking to strengthen the Food and Drug Administration’s (FDA) authorities, but none has made significant progress.
The NGO has also called for a federal plan to address the "widespread and growing PFAS water contamination crisis".
The new session is likely to see continued advocacy for the reintroduction of a variety of measures, including around labelling and ingredient transparency, the EPA’s science policy and IRIS programme, and regulatory reform.
But with a divided Congress and an array of competing issues, gridlock is expected to continue.
"The forefront of chemical regulation is going to keep happening on the state level," Gretchen Salter, interim head of NGO Safer States, told Chemical Watch.
https://chemicalwatch.com/71790/us-midterms-trigger-leadership-shifts-for-federal-chemical-legislation
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Environmentalists Resist EPA's TSCA 'Uses' Claims
Nov 13, 2018 | Inside EPA
Environmental and labor groups challenging the Trump administration's rules for prioritizing and evaluating existing chemicals under the revised toxics law are rejecting EPA assertions that the law grants broad discretion to determine the chemical uses it considers for possible regulation, charging that the law requires EPA to consider all conditions of use.
In a Nov. 9 reply brief, petitioners including the Natural Resources Defense Council, Safer Chemicals Healthy Families, and United Steelworkers argue that EPA has failed to respond to petitioners' claims that the June 2016 Toxic Substances Control Act (TSCA) requires the agency to consider all chemical uses, and that EPA's plan to exclude so-called “legacy” uses is unlawful.
“EPA’s authority to 'determine[]' the circumstances that constitute a chemical’s conditions of use … does not confer unfettered discretion to write out of the statute circumstances that plainly fall within TSCA’s definition,” petitioners say. “A grant of authority to an agency to 'determine' is 'a direction to exercise discretion within defined statutory limits.'”
In the case Safer Chemicals Healthy Families et al. v. U.S. EPA et al., environmental and labor groups are challenging the Trump administration's rules for prioritizing and evaluating risks of chemicals in commerce under TSCA, arguing that EPA's claim of authority to exclude chemicals' legacy uses is inconsistent with the revised law.
But in defending against the lawsuit, EPA has argued that TSCA grants the agency broad discretion to determine the conditions of use that it will evaluate in reviews and that recent legislative history supports the agency's focus on the most pressing risks.
Although one industry observer has said, that the Chevron doctrine, under which courts defer to agencies' reasonable interpretation of ambiguous statutes, will likely play a significant role in the case, industry intervenors have declined to cite Chevron, arguing that EPA's discretion flows from the revised TSCA.
The case pending in the U.S. Court of Appeals for the 9th Circuit could -- depending on how the court rules -- pose a significant hurdle to EPA's TSCA implementation. Environmentalists have threatened to ramp up calls for state rules, creating a patchwork that industry fears -- if EPA fails to adequately consider chemical risks.
In the reply brief, petitioners argue that EPA's filings in the case fail to justify its use of the phrase “as determined by the Administrator” in the revised TSCA as a “roving license to ignore the statutory text,” and claim that the law's clear requirement to consider all conditions of use precludes the agency from claiming Chevron deference.
“As the text, structure, and purposes of TSCA require EPA to consider all conditions of use, EPA’s contrary interpretation fails at Chevron Step One,” the filing says.
Petitioners also fault EPA assertions that the statute's tight deadlines for review justifies narrowing the scope of analysis, arguing the law does not allow the agency to consider such non-risk factors, and that the law outlines a manageable schedule, calling for the agency to focus on 20 chemicals at a time and allowing three years for reviews.
“EPA cannot invoke the specter of those deadlines -- which it does not claim, let alone demonstrate, it cannot meet -- to rewrite the statute,” the filing says. “Congress prohibited EPA from considering 'nonrisk factors' when conducting risk evaluations.”
https://insideepa.com/daily-feed/environmentalists-resist-epas-tsca-uses-claims
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Hearing to Address 'Man-Made Drinking Water Crises'
Nov 13, 2018 | E&E Daily
By Courtney Columbus
A Senate field hearing today will delve into some of the challenges communities face in dealing with industrial chemicals that have contaminated drinking water in Michigan and other states.
Sen. Gary Peters (D-Mich.), ranking member of the Federal Spending Oversight and Emergency Management Subcommittee, is leading the field summit on a class of chemicals called per- and polyfluoroalkyl substances, or PFAS.
The widely used substances are notoriously persistent, earning them the moniker "forever chemicals." They've been used for decades in everything from nonstick cookware to firefighting foam.
In 2016, EPA set the health advisory level for two types of PFAS, called PFOA and PFOS, at 70 parts per trillion for the combined total of those two chemicals in drinking water.
"Despite Michigan's abundance of freshwater, communities from Parchment to Oscoda are facing man-made drinking water crises due to PFAS contamination," Peters said in a news release announcing the summit.
"Families across Michigan have been exposed to these dangerous chemicals, and the federal government has a responsibility to assist local communities as they monitor this crisis, begin cleaning up contaminated sites and prevent further harm to Michiganders," he said.
The Republican majority is not participating in the summit, a spokeswoman for Peters' office said, and other Democratic lawmakers on the subcommittee are not expected to attend.
One of the witnesses, Belmont, Mich., resident Sandy Wynn-Stelt, was found to have blood levels of PFOS that surpassed the national blood level average by about 750 times, MLive.com reported.
She lives across the street from a site where Wolverine World Wide Inc. dumped hazardous waste from a former tannery. Testing also detected PFOS in her well water at more than 540 times the EPA advisory level, according to MLive.
Another witness, Robert Delaney, is an environmental specialist at the Michigan Department of Environmental Quality who authored a 2012 report that was delivered to a former director of the agency. The document raised concerns about PFAS before the chemicals had gained much public attention, but his warnings were "largely ignored," reported MLive.
Cathy Stepp, EPA's Region 5 administrator, was on the witness list of the initial press release announcing the summit, but a release sent by Peters' office Friday didn't include her.
EPA said Stepp has a scheduling conflict, according to a Peters spokeswoman. "We have asked for an alternate witness, but they have not yet provided one at this point," the spokeswoman said.
The subcommittee held a hearing on PFAS in late September at Peters' request (E&E Daily, Sept. 27). A House subcommittee also held a hearing on the chemicals in September (E&E Daily, Sept. 7).
Schedule: The hearing is Tuesday, Nov. 13, at 10 a.m. at Grand Valley State University, Grand Rapids, Mich.
Witnesses:
· Sandy Wynn-Stelt, Belmont, Mich.
· Adam London, administrative health officer, Kent County Health Department.
· Rick Rediske, senior program manager and professor, Grand Valley State University Robert B. Annis Water Resources Institute.
· Drew YoungeDyke, communications coordinator, National Wildlife Federation Great Lakes Regional Center.
· Patrick Breysse, director, National Center for Environmental Health/Agency for Toxic Substances and Disease Registry.
· Robert Delaney, environmental specialist, Michigan Department of Environmental Quality.
· Carol Isaacs, director, Michigan PFAS Action Response Team.
https://www.eenews.net/eedaily/2018/11/13/stories/1060105985
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Report: Elections Could Drive New Efforts to Address Lead in Drinking Water
Nov 12, 2018 | Inside EPA
By Lara Beaven
EPA's limited response to the Flint, MI, drinking water crisis has prompted several states in the Northeast and Midwest to enact state laws to address lead contamination in municipal water supplies and schools, and while these state actions still fall short of what is needed, the results of the recent election could drive new state and federal efforts to address the issue, a new report says.
“In the absence of a strong and proactive federal response to the crisis, states have addressed various aspects of this issue, but a comprehensive approach is lacking,” the report released Nov. 8 by the Northeast-Midwest Institute says. The institute is a nonpartisan public policy organization focused on issues in the 18 states of the Northeast and Midwest.
The report says that while elements of certain state laws are laudatory, such as affordability provisions in Wisconsin and mandatory school lead testing every year in Pennsylvania, only Michigan, which significantly revised its state lead and copper rule, has taken a comprehensive approach that could serve as a template for other states.
And only Illinois, New Jersey and Pennsylvania have implemented laws that address lead issues in both municipal and school settings, though the Pennsylvania law does not address daycare centers.
More than half of the states in the region have introduced no new laws or regulations to address problems associated with lead contamination in municipal drinking water.
While half of the states have laws mandating compulsory lead testing in schools, one-third of the states have neither mandatory nor voluntary lead testing programs.
“While no particular state has a comprehensively strong lead testing mandate, there are several strong provisions in these state efforts that could be included in federal legislation to expand the coverage of these provisions to the rest of the region and indeed to the entire country,” the report says.
But it adds, “Despite the focus on testing, the lack of mandated rehabilitation of affected fixtures in schools and the absence of dedicated funding is a cause for concern.”
The recent elections have brought significant changes to the makeup of Congress, governors and state legislatures in the region, “which could bring a new wave of legislative and policy solutions to the various aspects of the lead crisis,” the report says.
Rep. Frank Pallone, Jr. (D-NJ), who is expected to chair the Energy and Commerce Committee next year, said Nov. 7 that he plans to have discussions with his Democratic colleagues about putting forward proposals to “rebuild America by investing in green energy, drinking water and broadband infrastructure,” among other things.
And Michigan's Democratic Gov.-elect Gretchen Whitmer said Nov. 7 she will follow through on campaign promises to address the states' infrastructure, including drinking water. “We're all paying a water tax if you have to buy bottled water," she said.
Contamination Severity
In addition to discussing federal and state policy actions regarding lead contamination in drinking water, the report also attempts to catalog the severity of the lead crisis in Northeast-Midwest cities during 2015-2017 by reviewing news media coverage as a proxy for the severity of drinking water issues related to lead contamination.
“In cases where primary data may not be readily available, an analysis of news media coverage can generate proxy data to assess temporal, spatial, and thematic trends. In this report, media coverage is employed as a proxy for municipal- and district-level data on the severity of the lead in drinking water issue,” the report says.
The institute's analysis found that the news coverage was geographically spread across the region with concentrations of coverage in Michigan, Pennsylvania, Illinois, Wisconsin and Ohio.
“Overlaying the locations of these articles on a map of Congressional Districts revealed numerous regions, apart from larger urban areas, as being affected; more than half of the 158 districts featured at least one location-specific article,” the report says
https://insideepa.com/daily-news/report-elections-could-drive-new-efforts-address-lead-drinking-water
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Bayer Hit by More Lawsuits Over Safety of Roundup Weedkiller
Nov 13, 2018 | Wall Street Journal
By Ruth Bender
Bayer AG BAYRY -4.29% on Tuesday disclosed another jump in the number of lawsuits alleging the German company’s recently acquired weedkillers cause cancer in a sign that an issue that has wiped billions off Bayer’s market valuation isn’t fading away.
Lawsuits from 9,300 plaintiffs were pending at the end of October, compared with 8,700 at the end of August, Bayer said. Plaintiffs claim that Roundup weedkillers, which Bayer acquired in its takeover of Monsanto Co., made them ill and that Monsanto knew or should have known of the risks but failed to warn adequately.
Bayer rejects the allegations, arguing there are hundreds of scientific studies and regulatory authorities that demonstrate glyphosate, the compound contained in the weedkillers, is safe to use.
“We continue to believe that we have meritorious defenses and intend to defend ourselves vigorously in all of these lawsuits,” Chief Executive Werner Baumann said in a press release.
The latest increase in the number of cases highlights the tough task Bayer faces in trying to assuage investor concerns that its recent acquisition had burdened the pharmaceutical and chemicals company with a problem that could take years to resolve and could weigh on the company’s share price for some time.
The trouble for Bayer began on Aug. 10, when a San Francisco jury held Monsanto liable for a former groundskeeper’s terminal non-Hodgkin lymphoma and ordered a heavy fine on the U.S. company. At the time, Bayer had limited latitude to defend itself as it wasn’t yet allowed to officially control Monsanto, pending asset sales required by antitrust authorities to close the $63 billion acquisition of the U.S. agricultural giant.
Bayer has been fighting back vigorously since, but markets remain skeptical. Since the verdict, Bayer has lost some €30 billion ($33.7 billion) in market capitalization as investors fear the issue could overshadow the integration process.
In late October, the San Francisco judge reduced the August jury award to $78.5 million from $289 million but maintained the jury’s verdict that Monsanto acted with malice, sending shares down again. Investors had pinned their hope on a new trial after the same judge issued a tentative order for a new trial earlier in October in what could have allowed Bayer to argue this specific case afresh.
Bayer is now appealing the verdict with the California Court of Appeal, which it says is a single judgment that isn’t binding for other cases. Bayer has been arguing that attorneys for the plaintiff Dewayne Johnson had relied on flimsy scientific evidence to prove a link to his cancer and that they had swayed the jurors with overly emotional and speculative arguments.
Bayer AG BAYRY -4.29% on Tuesday disclosed another jump in the number of lawsuits alleging the German company’s recently acquired weedkillers cause cancer in a sign that an issue that has wiped billions off Bayer’s market valuation isn’t fading away.
https://www.wsj.com/articles/bayer-hit-by-more-lawsuits-over-safety-of-roundup-weedkiller-1542098262?mod=searchresults&page=1&pos=2
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LWCF, Offshore Drilling Debates Will Shape Year-End Efforts
Nov 13, 2018 | E&E Daily
By Kellie Lunney and Geof Koss
Legislative efforts to permanently renew a beloved land and water conservation program, boost revenue-sharing for Gulf of Mexico states and create a $6.5 billion fund to improve maintenance at national parks could complicate the path forward for an expected bipartisan year-end public lands package.
The leadership of the House and Senate natural resources panels are eager to push through the lame-duck session a massive package of marked-up measures that affect a broad range of energy and environment priorities in communities from Alaska to Virginia.
The two committees, which each has moved more than 100 bills during this congressional session, are among the most prolific in their respective chambers.
"What we want to do is take the many public lands bills that we've had come before us over this past year and see what we can't package into a bigger proposal," Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) told E&E News before the October recess, noting the committee has a history of moving such packages at the end of a Congress.
Whether that package includes major legislation reauthorizing the Land and Water Conservation Fund, which lapsed Sept. 30, and a separate measure addressing the national parks' maintenance backlog remains to be seen.
Congress must pass another government spending bill before the current funding expires on Dec. 7. Both chambers are scheduled to be out next week for the Thanksgiving break; the House leaves for the year on Dec. 13 and the Senate is scheduled to be in until Dec. 14.
Both the LWCF and parks' bills that passed through the Senate committee in October included provisions that contain mandatory spending — a heavy lift, given that budgeting rules require the measures to be offset with either revenue increases or cuts in federal spending elsewhere (Greenwire, Oct. 2).
Murkowski, who opposed an LWCF bill put forward by Sen. Maria Cantwell (D-Wash.) in committee, said in October the ranking member's mandatory spending in S. 569 is a steep hurdle.
"I just don't see that moving forward. So how we are able to get permanent reauthorization and get the votes to pass the Senate and the House is our challenge," she said.
Sen. Rob Portman (R-Ohio), the lead sponsor of the parks' bill, S. 3172, acknowledged that the Congressional Budget Office's scoring of his bill may be problematic but noted that the measure includes pay-for provisions that rely on federal oil and gas revenues generated on and off shore.
However, Murkowski said she supported Portman's parks bill because its mandatory spending is limited to a specific period of time, five years.
"There's a lot of heartburn with many on that as well," she noted, adding she planned to work with the House Natural Resources Committee to see how "we can move this measure over the finish line."
'Anyone's guess'
The calculus is equally uncertain on the House side, for slightly different reasons. The LWCF bill, H.R. 502, which several committee Republicans opposed, would permanently reauthorize the program but does not address funding, in contrast to the Senate measure.
House Natural Resources Chairman Rob Bishop (R-Utah) has said multiple times he envisions the LWCF reauthorization measure as well as the parks fix bill as part of an overall lands package.
But Democrats and some outside groups worry Bishop or other Republicans will load up a lands package that includes LWCF with measures they consider objectionable.
"If it's part of a lands package that isn't corrupted by other things, fine," said the panel's top Democrat Raúl Grijalva of Arizona before the recess.
Grijalva, who worked with Bishop on crafting the LWCF and parks backlog deals, is widely expected to lead the panel in January when Democrats take over the House.
Grijalva acknowledged he wasn't sure what would happen with LWCF during the lame-duck session but said "every day we delay is less money going into the fund."
Since Congress didn't reauthorize LWCF at the end of September, offshore oil and gas revenue that pays for the program has stopped going into the fund and is instead being diverted into the general Treasury right now.
"It's anyone's guess," said Jen Ujifusa, legislative director of the Southern Utah Wilderness Alliance, on whether LWCF is reauthorized before the end of the year.
"I think that there are a lot of Republican poison pill bills out there that would make it difficult to do a good [lands] package," Ujifusa said, singling out a measure affecting management of federal lands in Emery County, Utah, offered by two Republican members of the Utah delegation, Sen. Orrin Hatch and Rep. John Curtis (E&E Daily, May 9).
SUWA opposes the Emery County bill because the group thinks the measure doesn't go far enough to protect public lands. Ujifusa said the organization wants to see LWCF get done but not at the expense of other priorities.
GOMESA standoff
Further hampering House and Senate efforts to move on LWCF and the parks backlog measures is the clout of Gulf of Mexico lawmakers, who fear their region will get the short end of the stick on federal revenues despite producing the bulk of offshore oil and gas in the United States.
"You're talking about $900 million dollars with LWCF, $1.3 billion [annually] with backlog maintenance," said Rep. Garret Graves (R-La.), referring to the price tags associated with the two pieces of legislation, in an October interview with E&E News.
Graves said he supports a long-term reauthorization of LWCF and understands the importance of addressing the maintenance backlog but isn't a fan of either bill as written.
"I think it's going to be pretty difficult to get something like this done without bringing some revenues to the table," he said. "So, is there a deal in there? Yeah, I think that there is. But I do think it's going to take some structural renovations to the LWCF bill and to the maintenance bill before you get there."
Graves is sponsoring a separate measure, H.R. 6177, that passed out of the House Natural Resources panel in September.
His would increase from 37.5 percent to 50 percent the share of offshore oil and gas drilling revenues for four Gulf Coast states on production from post-2006 leases under the Gulf of Mexico Energy Security Act. The law was enacted after Hurricane Katrina.
The revenue-sharing boost in Graves' bill would put the four GOMESA states more on par with the roughly 50-50 state-federal split on federal oil and gas revenues generated on federal lands on shore.
Alabama, Louisiana, Mississippi and Texas generated $200 billion in offshore oil and gas revenue last year for the federal government.
"Eighty to 90 percent of all offshore production in federal waters happens off the coast of Louisiana," Graves said. "Yet the very area that is the goose laying the golden egg for the federal government, the very goose that they are trying to extract LWCF from, that they are trying to extract backlog maintenance from, it is not [ecologically] sustainable."
The Louisiana Republican said he sees his bill to amend GOMESA being part of a package that includes LWCF or the maintenance backlog bill because "it helps invest in the sustainability of those revenue streams they want to use" for those two programs.
Asked whether he'd use his bill as leverage for his support on LWCF and the parks bill, Graves said, "Hell yeah, absolutely."
Sen. Bill Cassidy (R-La.) made similar arguments in October. He opposed the LWCF bill in committee in October out of concern that the mandatory funding will squeeze out his state's share of federal offshore oil and gas revenues.
Referencing the expected CBO dilemma, he criticized the notion that the Senate LWCF bill is paid for by offshore revenues.
"It is a fig leaf of a pay-for because you got to pay for the pay-for," he told E&E News in October.
Cassidy, like Graves, noted his state's share of GOMESA payments is used to restore the state's coastline, dozens of acres of which erode daily. Without those restoration efforts, the oil and gas infrastructure itself is at risk from erosion and subsidence, possibly hampering production on the outer continental shelf and the resulting pot of federal monies it produces.
"You've got to be able to maintain the infrastructure in order to have the revenue to pay for everything," he said.
Along with the Graves bill, Gulf lawmakers are discussing several proposals that could ease their opposition to the LWCF and parks measures, including raising the annual $500 million cap on their GOMESA payments to allow more dollars to flow to their states.
Cassidy noted powerful Gulf Coast lawmakers representing states that receive GOMESA funds share his views on the issue, including Senate Appropriations Chairman Richard Shelby (R-Ala.), Majority Whip John Cornyn (R-Texas) and House Majority Whip Steve Scalise (R-La.).
"You've got folks with influence at critical junctures who understand the importance of preserving the energy infrastructure," he said. "And so, I think it's better for the process if those concerns are actually addressed as opposed to ignored."
https://www.eenews.net/eedaily/2018/11/13/stories/1060106019
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Trump Can’t Undo Arctic Protections, Environmental Groups Tell Judge
Nov 10, 2018 | BNA Daily Environment Report
By Jill Burke
President Donald Trump overstepped his authority in opening Arctic waters and deep canyon shelves in the Atlantic Ocean to oil and gas drilling, environmental groups told a federal judge in Alaska on Nov. 9.
At issue is Trump’s reversal of Obama-era protections for the Chukchi and Beaufort Seas, as well as waters in the Atlantic. The case pits climate change activists who say the Arctic is too fragile to risk for energy development against oil and gas interests who say the potential lease areas are too rich in fossil fuels to ignore.
The president has the authority under the Outer Continental Shelf Lands Acts—which President Barack Obama used—to withdraw some lands from lease sales to protect them, environmentalists told U.S. District Court Judge Sharon Gleason in Anchorage. Trump’s orders last year have reversed those decisions.
The groups, including the League of Conservation Voters, Sierra Club, and Alaska Wilderness League, are challenging the president’s authority to put those lands back into play.
“President Trump has attempted unilaterally to undo protections that President Obama put in place,” Erik Grafe, staff attorney with Earthjustice, told reporters after the hearing. “Our argument is that that action is unlawful, because he lacks constitutional authority and he lacks authority from Congress, so he acted without authority.”
The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Environment is operated by entities controlled by Michael Bloomberg.
Justice Department, API Counter ArgumentsActing Assistant Attorney General Jeffrey Wood countered during arguments that the intent of the 1953 Outer Continental Shelf Lands Act was to provide “meaningful, balanced, flexible stewardship.” He suggested a ruling in favor of the plaintiffs would “permanently and irrevocably tie the hands of all future presidents.”
Steven Rosenbaum, an attorney representing the American Petroleum Institute, also said placing Arctic waters off limits to development has serious consequences.
Recent federal studies show 9.25 billion barrels of technically and economically producible oil in the Chukchi Sea, with another 6 billion barrels available in the Beaufort Sea, he told the court.
Rosenbaum also argued there was no “concrete or immediate injury” in “just the possibility” that lands might be available for lease. He noted that seismic and exploration activity is already happening in other areas of the Arctic Ocean.
The case is League of Conserv. Voters v. Trump, D. Alaska, No, 3:17-cv-00101, oral argument 11/9/18
https://news.bloombergenvironment.com/environment-and-energy/trump-cant-undo-arctic-protections-environmental-groups-tell-judge
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Where Does Keystone XL Go from Here?
Nov 13, 2018 | E&E Energywire
By Pamela King
A federal judge's ruling last week threw a major roadblock in the path of the Keystone XL pipeline, prompting questions over next steps for the project and market implications of the court order.
Green groups said the long-embattled pipeline is dead in the water after Judge Brian Morris of the U.S. District Court for the District of Montana required the State Department to revisit its environmental review of the 1,200-mile conduit to carry Canadian crude through the wheat belt to the Gulf of Mexico (Energywire, Nov. 9).
"It is simply a stranded asset at this point," said Jane Kleeb, president of pipeline opposition group Bold Alliance.
Energy experts noted that Keystone XL's latest hurdle is indicative of the challenges that oil and gas pipeline project developers across the country face. National Environmental Policy Act analyses and lawsuits — like the one that prompted Morris' ruling last week — have the potential to hamstring projects for years on end, said James Coleman, an energy law professor at Southern Methodist University.
"Many companies now avoid any project that might require a federal permit. This is holding back energy projects across the country," he said. "It's time to reform NEPA and get infrastructure moving."
The ruling from Morris, an Obama appointee, was widely viewed as a strike against the Trump administration's efforts to bolster domestic energy development. Just days after his inauguration, President Trump signed an executive order giving the State Department 60 days to revisit its 2015 rejection of a permit allowing Keystone XL to cross the U.S.-Canada border.
Morris found that Trump's State Department did not adequately justify that reversal.
Trump last week decried the court order as a partisan move.
"It was a political decision made by a judge. I think it's a disgrace," he told reporters Friday (Greenwire, Nov. 9).
The president noted that he is working to install his own nominees in the 9th U.S. Circuit Court of Appeals, where a battle over Morris' order is likely to land.
The court "has not been favorable ground for the Trump administration," said Fred Jauss, a partner at law firm Dorsey & Whitney.
An appeal from the State Department or Keystone XL developer TransCanada Corp. could challenge the district court's jurisdiction, analysts for ClearView Energy Partners LLC wrote last week. But the government and the company could still work to flesh out the environmental analysis in order to get the project moving faster.
"Given the prohibition on construction activities, and the unclear tempo for a potential review by the higher court, the project sponsor and State may consider potentially addressing the flaws identified by the court in parallel to an appeal," ClearView wrote.
State Department officials took a similar course of action after Morris found the department's environmental analysis of Keystone XL's alternative route lacking. The government quickly handed back a supplemental review finding minimal impacts from the new Nebraska pathway. Environmentalists said the document was a "sham review" (Greenwire, Sept. 24).
TransCanada, which previously had said it would begin construction in 2019, has said it is still reviewing last week's ruling.
Market impacts
The latest development in the Keystone XL saga could have major implications for western Canadian oil prices, one analyst said last week.
Morris' order is unlikely to kill the project, but it will significantly delay progress, said Zachary Rogers, a refining and oil markets research analyst for Wood Mackenzie. That matters because rising production in Alberta, coupled with a lack of midstream capacity, has lowered the value of Canadian crude.
"This is a negative for future market access for Canadian oil sands producers, who are currently experiencing the painful consequences of lagging midstream development," he said.
ClearView last month predicted that Western Canadian Select oil prices — under $14 per barrel yesterday — would not recover until projects like Keystone XL and Enbridge Inc.'s Line 3 expansion are completed.
In his order, Morris required the State Department to reassess Keystone XL in light of the change in oil markets since 2014, when the Obama administration completed its NEPA analysis of the pipeline.
At the time, the government stated that the price of a barrel of crude would sit between $100 and $140. The 2014 review said the price of oil would have to sit between $65 and $75 per barrel for the project to be economical.
West Texas Intermediate crude prices hovered near $60 per barrel yesterday.
Keystone XL pipeline opponents questioned whether the government and TransCanada could complete the requisite analysis and overcome the various hurdles that face the project at both the state and federal levels.
"Of course it's possible," Brian Jorde of the Domina Law Group said on a call with reporters last week, "but what you're hearing here is it just keeps getting less likely."
https://www.eenews.net/energywire/2018/11/13/stories/1060106023
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Clean Energy Is Surging, but Not Fast Enough to Solve Global Warming
Nov 12, 2018 | New York Times
By Brad Plumer
Over the next two decades, the world’s energy system will undergo a huge transformation. Wind and solar power are poised to become dominant sources of electricity. China’s once-relentless appetite for coal is set to wane. The amount of oil we use to fuel our cars could peak and decline.
But there’s a catch: The global march toward clean energy still isn’t happening fast enough to avoid dangerous global warming, at least not unless governments put forceful new policy measures in place to reduce carbon dioxide emissions.
That’s the conclusion of the International Energy Agency, which on Monday published its annual World Energy Outlook, a 661-page report that forecasts global energy trends to 2040. These projections are especially difficult right now because the world’s energy markets, which usually evolve gradually, are going through a major upheaval.
Here are some of the report’s major themes:Wind and solar are making gains
Around the world, the electricity sector “is experiencing its most dramatic transformation since its creation more than a century ago,” the report said. One big factor is the rapid growth of wind and solar power.
Over the past five years, the average cost of solar power has declined 65 percent and the cost of onshore wind has fallen 15 percent. The energy agency predicts those prices will keep tumbling as technology improves and governments scale back subsidies. Solar plants are becoming well-placed to outcompete new coal plants almost everywhere.
The agency sees renewable power supplying 40 percent of the world’s electricity by 2040, up from 25 percent today. Even that forecast could prove conservative: In the past, the agency has underestimated the speed at which wind and solar power proliferate.
“Our solar expectations are about 20 percent higher than they were last year, both because of new policies in China and India and because the costs are coming down so fast,” said Fatih Birol, the agency’s executive director.
The report warns, however, that many countries will need to retool their grids to manage the output from wind and solar plants, which run intermittently. That will mean overhauling rules for how electricity markets operate, relying on batteries and gas plants for grid flexibility and exploring new tools like hydrogen storage.Coal’s boom days are over
For decades, developing countries like China and India have turned to coal as the cheapest, easiest way to power their economies and lift themselves out of poverty. It’s a big reason carbon dioxide emissions have skyrocketed.
That’s quickly changing.
China, which burns half the world’s coal, is making heavy investments in wind, solar, nuclear and natural gas, spurred in part by concerns about air pollution from its coal plants. The agency now projects that China’s coal consumption will plateau around 2025, with renewables overtaking coal as the country’s biggest source of electricity by 2040.
And, while countries in Southeast Asia and elsewhere are still drawing up plans to build new coal plants, the agency expects this frenzy of construction to slow sharply after 2020.
But don’t expect coal to disappear altogether. While the era of rapid coal growth is fading, the agency projects that global coal consumption could stay flat for decades. One reason for that: The average coal plant in Asia is less than 15 years old (compared to about 41 years in the United States). Those plants will keep polluting for decades, unless countries decide to retire them early or develop technology to capture and bury their emissions.
Oil won’t peak for a while yet
Even as the world puts hundreds of millions of new cars on the road, we’re increasingly using less oil to fuel them. The report projects that global oil use for cars will peak by the mid-2020s as countries ratchet up their fuel-economy standards and deploy more electric vehicles.
That doesn’t mean overall oil use will decline, however. Only about one-quarter of the world’s oil is used to fuel passenger cars. The rest is used to fuel freight trucks, ships, and airplanes; for heating; and to make plastics and other petrochemicals.
Those sectors haven’t seen the same improvements in efficiency. As a result, the agency expects global oil demand to keep rising through 2040, led by developing countries.Climate goals remain out of reach
Even with the impressive recent gains for renewable energy, the world is still far from solving global warming. Global carbon dioxide emissions rose 1.6 percent last year and are on track to climb again this year. The report projects that emissions will keep rising slowly until 2040.
One reason: Carbon-free sources like wind, solar and nuclear power aren’t yet growing fast enough to keep up with rising global energy demand, particularly in places like India and Southeast Asia. That means fossil fuel use keeps growing to fill the gap.
For this to change, nations will have to enact sweeping new policies, like investing in energy efficiency to slow demand growth, curbing methane leaks from oil and gas operations, and developing carbon capture technology for existing fossil fuel power plants and cement factories.
Governments will play a key role: The report notes that the world invests $2 trillion annually in energy infrastructure, and 70 percent of that is directed by state-owned companies or regulators. “That tells me that our energy destiny will rely heavily on government decisions in the next two decades,” Mr. Birol said.
https://www.nytimes.com/2018/11/12/climate/global-energy-forecast.html?rref=collection%2Fsectioncollection%2Fscience
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Grid Planners Put 'Black Start' Technology to the Test
Nov 13, 2018 | E&E Energywire
By Blake Sobczak
Three inflated air dancers flapped incongruously over a deserted laboratory.
The bright tube puppets would have fit right in at a used car dealership, but on this closely guarded, government-owned island, they stood out like fireworks in the driving rain.
Powered by electric fans, the props were meant to signal that this part of Plum Island, at least, still had power during a grid cybersecurity exercise held here last week.
Walter Weiss, a program manager for the exercise at the Defense Advanced Research Projects Agency, called them "high-visibility power indication devices," cheekily adding more jargon to a week already swimming in cybersecurity and electrical engineering terms.
Weiss, whose glasses never seemed to fog up in the inclement weather, was already thinking of new obstacles to throw at exercise participants. His job was to put seven DARPA-funded research projects to the test, aiming to uncover gaps in the power grid's defenses under dire, "black start" conditions, in which a crippling cyberattack brought the bulk power grid to its knees and forced operators to start from scratch.
"We try to make this as painful as possible." he said. "We want to find the limits of the tools, so we drive them to the point where we see how far they get.
"Then we beat them back down, and that's when they start getting really upset with us," he added with a grin.
Plum Island, a strip of windswept land off the eastern tip of Long Island, offered a rare spot to unplug from the wider grid and run a cybersecurity exercise on live, 13.2-kilovolt wires. DARPA orchestrated the weeklong "Liberty Eclipse" exercise alongside the Department of Energy, National Guard and Department of Homeland Security, which controls access to the island, roughly the size of Central Park.
"No one's really tried to do this before," Weiss told a group of reporters invited to observe part of the event, which ran from Nov. 1 to Nov. 7 (Energywire, Aug. 3). "How do you go from a policy tabletop [exercise], to the technologies — the ones and zeroes — and then feed back to the policy community what actually worked on the ground?"
Restoring trust
Last Tuesday, the exercise participants were off to a good start. The yellow, red and green tube men flailed against the downpour above decrepit Building 257, which once housed a U.S. Army lab for researching germ warfare. The DARPA researchers and utility players had been tasked with preserving power to Building 257 at all costs, while working to re-energize the wider grid.
But Weiss and other planners periodically tossed wrenches into the works, simulating a steady onslaught of cyber and physical attacks. Later that afternoon, they would introduce a data "wiper," modeled off real-world cases of ransomware, which could send grid operators back to square one if they weren't careful.
The event offered a dress rehearsal for nascent technologies in a three-year-old DARPA research effort dubbed RADICS, short for "Rapid Attack Detection, Isolation and Characterization Systems."
The RADICS program, which kicked off in 2015 with a $77 million federal funding announcement, is aimed at ensuring U.S. utilities can bounce back from a blackout brought on by a cyberattack. Grantees had to assume the worst: that utilities' operational networks, including sensitive field equipment, have been compromised by hackers.
"How do I know that substation's working? How do I know if I can trust that substation? How can I trust the communications, and what do I have to fix to make sure it's working?" said Gary Seifert, an engineering contractor who helped build out the physical infrastructure for the Liberty Eclipse scenario. "There is a lot of steps that go into that."
Researchers from defense contractors Raytheon Co., BAE Systems PLC, Perspecta Labs and other DARPA funding recipients dreamed up a host of solutions, from adding a second, backup layer of sensors and communications channels tailor-made for grid emergencies, to sending up a specialized balloon to offer a bird's-eye view of grid restoration, scanning for Wi-Fi hotspots and electromagnetic signals to map out where electrons are actually flowing.
Weiss said DARPA is working to prepare a public after-action report to map out next steps for the RADICS program and key in on any major weaknesses.
The Department of Energy will draft its own set of takeaways, having completed a related tabletop exercise in October in addition to joining the on-the-ground team at Plum Island.
Brian Marko, exercise program manager for DOE's new Office of Cybersecurity, Energy Security and Emergency Response, cast Liberty Eclipse as a way to get utilities "in front of a safe and secure environment" to see how federal workers, researchers and engineers would band together during a disaster, "so we're ready for the real thing, if, God forbid, it ever happens."
Worst of the worst
Dozens of representatives from major utilities and industry groups, including the New York Power Authority, Duke Energy Corp. and the National Rural Electric Cooperative Association, trekked out to Plum Island to take part in Liberty Eclipse.
The baseline scenario was built around mind-bending bad news: swaths of the U.S. grid had already been offline for a month, exhausting battery backups at power plants and substations alike.
Participants were sorted into two main groups, each with their own control center: Utility A and Utility B.
Both fictional power companies would need to build a "cranking path" to bring the lights back on, starting with a "black start" generator up to the task.
Much like building a fire, restoring power to a completely blacked-out grid requires utilities to start small. Black start generation resources — typically diesel or gas-fired units — provide the kindling. With enough electricity flowing through pockets of the interconnected grid, large coal or nuclear-fired power plants can be piled on like logs, and utilities can ultimately resume normal operations.
"When you go out to your car every day, you turn your key over and it starts the motor, right?" Seifert explained. "Any generator bigger than 30 or 40 megawatts has to have a smaller generator to give it power."
Black start events are exceedingly rare. The 2003 North American blackout, which affected some 50 million people in the U.S. and Canada, was one of the most recent real-world tests.
But U.S. lawmakers, including the chairwoman of the Senate Energy and Natural Resources Committee, have urged the power sector to review their black start resources, just in case.
Sen. Lisa Murkowski (R-Alaska) pointed out at a hearing on the subject last month that "the increasing risks presented by cyberattacks — and the threats of electromagnetic pulses and solar storms — make it more important that we be prepared" (Energywire, Oct. 12).
Liberty Eclipse imagined just such a disaster: "as bad as it possibly could be for the country," as Seifert put it. "In reality, hopefully it never happens."
Building 257
On Day 1 of the exercise, Utility B received an order from Energy Secretary Rick Perry: Whatever else happens, keep a critical facility online — Building 257.
The order was intended to practice real emergency authority that lawmakers granted DOE three years ago under the Fixing America's Surface Transportation Act of 2015.
"DOE has the right to basically say: 'Utility, this is more important than your normal black start; you have to get this one up first and keep it on all the time,'" Weiss pointed out.
He didn't specify the precise nature of the critical facility.
Beyond the confines of the exercise, Building 257 served as an animal disease research center for decades after changing hands from the U.S. Army to the Department of Agriculture in the middle of the last century. Its real-world research mission passed over to another building on Plum Island, which remains in use and was kept isolated from the RADICS event on a separate grid.
During Liberty Eclipse, the worn-down structure, now a mess of peeling paint and chipped windows, was vaguely declared "critical to the national defense of the country."
"Utility B has quite a burden on their back: They have to keep their control center alive, and they have to keep their critical facility online," Seifert said.
At first, Utility B brought power back by reverting to "manual mode" — assuming computer systems couldn't be trusted, and sending workers out to physically flip switches and restore electricity to Building 257 and its supporting substation.
In December 2015, grid operators in Ukraine relied on the same strategy to recover from one of the few real-world examples of a cyberattack on a power system. Facing a coordinated assault on their operational networks, three distribution utilities in western Ukraine resorted to sending line workers into the field to bring the lights back on in a matter of hours.
"We're paying very close attention to what those real threats are," Weiss said.
He pointed out that the exercise series could return to Plum Island as soon as next spring to gather more data for researchers, policymakers and power utilities.
"How do we make this part of how people exercise and prepare?" Weiss said. "I think we've created something that other people don't have yet."
https://www.eenews.net/energywire/2018/11/13/stories/1060106027
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EPA Sends PM2.5 'Precursor' Air Quality Planning Guide for OMB Review
Nov 12, 2018 | Inside EPA
EPA has sent for White House Office of Management and Budget (OMB) review its final guidance on how states can account for precursor substances that form fine particulate matter (PM2.5) emissions in the atmosphere when undertaking state air quality planning or reviewing companies' Clean Air Act permitting requests.
According to OMB's website, the agency sent its guidance to OMB Nov. 9 for review, the last step before publication in the Federal Register, though the website has no further details on the guidance. OMB review typically takes up to 90 days, but can be faster or slower, depending on the circumstances.
The guidance would finalize a November 2016 Obama EPA proposal that drew criticism from some state and industry groups that said it would lead to excessively stringent regulatory decisions, and also from environmentalists saying it was not tough enough.
States rely on such guidance to model the impact of precursors on PM2.5 levels, which is necessary for them to craft state implementation plans showing how they will attain national ambient air quality standards for the pollutant. Also, precursor modeling can be necessary for issuance of new source review air permits for new or modified industrial facilities.
In a compilation of comments released by EPA in May 2017, Ohio EPA, the state's environmental regulator, criticized the guidance as late and “unfairly prescriptive,” saying “Ohio EPA is concerned that U.S. EPA has presented excessively conservative guidance and encourages U.S. EPA to highlight a path towards a scientifically valid demonstration that may be approved without unnecessary costs.”
The American Petroleum Institute (API) in its comments echoed Ohio EPA's concerns that the guidance relies on excessively conservative assumptions. In the proposed precursor guidance, EPA's thresholds to determine whether volatile organic compounds or ammonia emissions are contributing to ambient PM2.5 levels were based on 2016 draft significant impact levels (SILs).
SILs are screening thresholds below which emissions may be considered de minimis and disregarded in permitting. But “the SIL threshold is so conservative that it is not likely to provide any benefit as an initial screening,” API said.
EPA in April issued final guidance setting SILs largely at the levels contained in the 2016 draft SILs guidance, with the exception of some PM2.5 SILs applicable in “Class I” national parks and wilderness areas. For those areas, the final guidance adopts more-stringent SILs that would more likely trigger in-depth analysis.
Environmental group Earthjustice in its comments said the agency's handling of precursors should compensate for years of regulation of PM2.5 under the wrong air law provision, “subpart 1,” when in fact the more demanding, PM-specific “subpart 4” applies. The U.S. Court of Appeals for the District of Columbia Circuit in 2013 found EPA had for years applied the more general, less-onerous subpart 1 provisions, forcing EPA to revise its approach. The move toward limitation of precursors is a part of that policy shift.
“PM2.5 precursors -- especially ammonia -- have largely escaped regulation. Moreover, monitoring networks and other fundamental systems for measuring and attaining the national standards have been designed without regard to the sources of precursor emissions,” Earthjustice said. “Guidance that assumes we are starting from the point where all sources of PM2.5 will be treated equally ignores the history of neglect around the monitoring and controlling of these pollutants and could arbitrarily reinforce that neglect. Instead the Guidance should take steps to get areas to 'catch up' in the treatment of these precursors,” the group added.
https://insideepa.com/daily-feed/epa-sends-pm25-precursor-air-quality-planning-guide-omb-review
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Trump, California Battle over Climate and Cause of Fires
Nov 12, 2018 | The Hill - E2 Wire
By Miranda Green and Timothy Cama
President Trump and California’s political leaders are engaging in a war of words over the cause of wildfires that have devastated the state, killing at least 31 people.
Gov. Jerry Brown (D) blamed climate change at a press conference Sunday, days after Trump blamed the state’s forest management programs.
“Managing all the forests everywhere we can does not stop climate change, and those who deny that definitely are contributing to the tragedies that we are witnessing and will continue to witness,” Brown said in remarks directed toward the president.
Trump’s argument, that extensive logging and a change in California’s water practices could alleviate its fire problems, are regularly touted by Republicans who support logging industry groups out West as well as California GOP Reps. Kevin McCarthy and Devin Nunes, who have long fought for more water access in their districts in California's Central Valley.
“There is no reason for these massive, deadly and costly forest fires in California except that forest management is so poor,” Trump tweeted late Friday, threatening to withhold federal funds even as firefighters in the state grappled with the blazes.
“Billions of dollars are given each year, with so many lives lost, all because of gross mismanagement of the forests. Remedy now, or no more Fed payments!” Trump tweeted.
California lawmakers and fire experts quickly denounced Trump’s comments as partisan posturing.
“Lives have been lost. Entire towns have been burned to the ground. Cars abandoned on the side of the road. People are being forced to flee their homes. This is not a time for partisanship. This is a time for coordinating relief and response and lifting those in need up,” California Gov.-elect Gavin Newsom (D) tweeted.
Others pointed out that many of the fires scorching the state are not in fact burning in forests at all, but on hillsides near city centers and coastlines.
California’s Woolsey fire, for example, has burned nearly 100,000 acres in Ventura, Calabasas, Thousand Oaks and Malibu. It has burned through communities located mere miles from the ocean, in valleys growing more shrubs than trees.
“The president’s assertion that California’s forest management policies are to blame for catastrophic wildfire is dangerously wrong. Wildfires are sparked and spread not only in forested areas but in populated areas and open fields fueled by parched vegetation, high winds, low humidity and geography,” California Professional Firefighters President Brian Rice said in a statement Saturday.
Experts also said that a majority of the land where forest fires have devastated have taken place on land that is federally owned and managed.
“Moreover, nearly 60 percent of California forests are under federal management, and another one-third under private control. It is the federal government that has chosen to divert resources away from forest management, not California,” Rice said.
Trump’s budget has called for slashing funding for the U.S. Forest Service and firefighting, argued Rep. Ted Lieu (D-Calif.).
“Dear @realDonaldTrump: What is wrong with you? Disaster victims deserve help & sympathy. Oh, and guess who owns much of the forest land in CA? Your federal agencies. CA only owns 2%. Guess who cut funding to forest management in the budget? YOU DID,” Lieu tweeted Saturday.
Trump’s sharp words created discomfort for some Republicans.
“I don't think it's appropriate to threaten funding,” Sen. Cory Gardner (R-Colo.) said Sunday on NBC’s “Meet the Press.” “That's not going to happen. Funding will be available. It always is available to our people wherever they are, whatever disaster they are facing.”
“California will receive the money they need,” Sen. Lindsey Graham (R-S.C.), increasingly seen as a close ally to Trump, said on CBS’s “Face the Nation.”
“But going forward, we need to look at some of the underlying causes of these fires, and it's just not California we need to look at better forest management in,” he said.
The fires are likely to be a point of discussion for lawmakers returning to Washington on Tuesday for the first time since Democrats retook control of the House in the midterm elections. Congress is facing a Dec. 7 deadline to pass legislation to fund most of the government, and lawmakers could attach special disaster funding to that bill.
The new Congress will not take office until next year, but it could be led by two Californians: current House Minority Leader Nancy Pelosi (D) and McCarthy. It’s unclear how that new dynamic could change the federal government’s take on how to handle western wildfires.
A spokesman for Rep. Nita Lowey (N.Y.), the top Democrat on the House Appropriations Committee and its likely chairman when the party takes over in January, said the Democrats will insist on money for the wildfires and other recent natural disasters.
“Congress must build upon the down payment agreed in September by swiftly passing an emergency supplemental appropriations bill in the lame duck session that will assist the communities affected by Hurricane Florence, Hurricane Michael, Typhoon Yutu, and the wildfires burning throughout the West,” the spokesman said.
Blair Taylor, a spokesman for Senate Appropriations Committee Chairman Richard Shelby (R-Ala.), left the door open for disaster funding for the wildfires, saying the panel's priority is the Dec. 7 funding deadline.
“As we set about that work, we will keep a close eye on this and other areas with a disaster declaration and remain in close contact with those states and the administration regarding need,” he said.
Trump has for months pushed to increase forest management — often a euphemism for logging — as a way to fix California’s fires.
In October, he made a similar threat to cut funding to California. Speaking in an address to the White House State Leadership Day Conference, Trump blamed water resource management as another area where California failed.
“This is a seriously defective thing there. I thought they had a drought. I didn’t realize. They said ‘no, we have so much water we don’t know what to do with it.’ Then you have all the forest fires. We have so much water they could actually water some of it,” he said.
In fact, nearly 52 percent of California’s land — where about 63 percent of the state’s population lives — is experiencing a drought, according to the federal government’s National Integrated Drought Information System.
In August, Interior Secretary Ryan Zinke and Agriculture Secretary Sonny Perdue promoted increased logging during a California trip as a way to manage fires.
“I’ve heard the climate change argument back and forth. This has nothing to do with climate change. This has to do with active forest management,” Zinke told Sacramento station KCRA at the time.
In an USA Today op-ed that coincided with the trip, Zinke blamed “radical environmentalists” who would “rather see forests and communities burn than see a logger in the woods.”
https://thehill.com/policy/energy-environment/416290-trump-california-battle-over-climate-and-cause-of-fires
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Pelosi's First Band of Climate 'Misfits'
Nov 13, 2018 | E&E Climatewire
By Robin Bravender
The last time Nancy Pelosi launched a special climate change committee, things got ugly.
It was January 2007, and the California Democrat — then the House's freshly minted speaker — created the Select Committee for Energy Independence and Global Warming, declaring that a warming climate had put the "future of our country, indeed our entire planet," at stake. She stressed that the new panel would have no legislative jurisdiction, an attempt to avoid the wars that inevitably come with any efforts to snatch turf from defensive committee bosses.
That wasn't enough to smooth things over.
Led by then-Chairman John Dingell, senior leaders of the House Energy and Commerce Committee revolted. The Michigan Democrat famously derided the new panel as "about as useful as a fish with feathers." Other veterans on Energy and Commerce — and other Democratic committee leaders — were also wary that the new messaging panel with the speaker's blessing could circumvent them.
But that was the whole point, according to former House Democratic staffers.
"It was very much looking at the landscape of what the progressive leadership wanted to do on energy and on climate and realizing that there was the most stubborn of all bulls standing between those goals and actual legislation — and his name was John Dingell," said a former Democratic staffer on the panel, who spoke on background in order to speak candidly.
The Washington Post reported that same year that Dingell, "a legendary defender of his committee's prerogatives as well as the carbon-emitting auto industry of his home state — had made it clear that he expected to lead the party's global-warming debate in a rather leisurely fashion. Pelosi was end-running him."
Republicans hated the select panel too. Texas Rep. Joe Barton, then the top Republican on Energy and Commerce, called it a platform for some lawmakers to grandstand.
"It will do nothing but muddy the waters and waste a lot of resources and the valuable time of the members who are selected to serve on it," Barton said then.
Publicly, Pelosi didn't frame the new effort as an assault on Dingell's authority.
She wanted to make climate change "a primary push of her speakership," said David Moulton, who was the select committee's first Democratic staff director. So "without directly threatening or taking away any legislative jurisdiction from any of the committees that had the jurisdiction, she created this oversight committee."
Pelosi tapped an ally, Massachusetts Democratic Rep. Ed Markey (who's now a senator), to helm the panel.
She thought he would be effective at holding hearings to keep the issue prominent, Moulton said, which "ultimately would pressure all the members to think more seriously about climate than they had up until then."
Republican leaders named Rep. James Sensenbrenner of Wisconsin, an outspoken climate change skeptic, as the committee's top Republican. Former Ohio Rep. John Boehner, then the chamber's top Republican, called the panel unnecessary but said GOP lawmakers would participate anyway.
Moulton recalled that Sensenbrenner had been "very anti-climate on the Science Committee, but it was interesting, his posture toward it on the committee itself was more cooperative than you would have expected." That helped with the "overall atmosphere of the committee," he added. "It was pretty collegial, in part because of him.
"I'm sure from the Republican perspective, having Sensenbrenner there was a way of sort of keeping an eye on us."
'Not allowed'
Despite critics' grumblings, Democratic staffers who worked on the panel say they were victorious in steering the conversation about climate change.
"We loved it, because we knew that this little band of misfits that had no jurisdiction and no responsibility meant that we had all the jurisdiction and all the responsibility in the world," said the former Democratic committee staffer.
"We could have any hearing on any topic at any time," that person added. "We were free."
The panel didn't have a designated hearing room. Staffers had to ask other chairmen to use their rooms when they weren't occupied, so they shuttled around between the Science and Technology, Ways and Means, and Education committees. "We bounced around," Moulton said.
One room was clearly off-limits. "We were not allowed to use the Energy and Commerce Committee room ever," he said.
Staffers had their offices at first in the Ford House Office Building (a disconnected building that's widely considered undesirable among House aides), and then in the basement of the more central Longworth House Office Building. "Pelosi expelled an arm of the Republican Study Committee that was in the basement of Longworth, and we took that space," Moulton recalled.
Between March 2007 and December 2010, the committee held 80 hearings and briefings, according to an archived version of its website.
They hosted military experts, students from Alaska and Appalachia, and the chairman of the Nobel Peace Prize-winning United Nations Intergovernmental Panel on Climate Change, among many others.
Markey's former staffers say the committee was instrumental in pushing aggressive fuel economy standards that were adopted in a 2007 energy bill, in scrutinizing BP PLC in the wake of the 2010 Deepwater Horizon oil spill (Markey's staff posted a live "spillcam" on their website) and in helping usher the House's 2009 cap-and-trade bill through the chamber. Markey co-sponsored that bill with former Rep. Henry Waxman (D-Calif.), who ousted Dingell as Energy and Commerce chairman in late 2008.
"There are many legacies, I think, of the select committee, but that is one of the biggest ones, to create the conditions where that legislation could pass," said the former staffer.
Former Rep. Rick Boucher, who was a top Energy and Commerce Committee Democrat at the time, disagrees.
"I'm hard-pressed to identify anything it accomplished," he said last week in an interview. Boucher, who hails from a coal-heavy district in southwest Virginia, was central to crafting the 2009 climate bill. He lost his race to his Republican challenger in 2010, and is now a partner at the law firm Sidley Austin LLP in Washington.
He said the activity that pushed the climate bill through the House in 2009 came from "Energy and Commerce work."
Just a messenger?
The select committee fizzled in late 2010, after Republicans claimed the majority.
Sensenbrenner wanted to keep the panel alive as a platform to investigate the Obama administration's climate policies but was rebuffed by Republican leadership.
Now that her party has retaken control of the chamber, Pelosi wants to bring it back. She told The New York Times that its reincarnation would pave the way for energy efficiency measures and legislation to reduce emissions (E&E News PM, Oct. 31).
It's unclear who would be in line to take the helm, although it's likely to be someone close to Pelosi.
Among the names being floated are Democratic Reps. Paul Tonko of New York, Peter Welch of Vermont, Earl Blumenauer of Oregon, Diana DeGette of Colorado, Don Beyer of Virginia and Cheri Bustos of Illinois. Several sources said they think it's more likely a woman would get the post.
Although it's virtually impossible that broad climate change legislation would muster enough support from the GOP-controlled Senate and President Trump, it could lay the groundwork for legislation if a more receptive Senate and president take power.
From Pelosi's perspective, "she's thinking this is another one of those situations where I've got to elevate this issue myself in the public's mind and explore what direction we can take," Moulton said. "What's ultimately legislatively possible depends on public opinion here, so it makes sense to me that she would want to elevate the issue again."
The select committee is "a good vehicle for doing so," he added. "What it means legislatively, it's harder to know."
House committees will have their hands full with oversight hearings, so this could offer Democrats a venue for climate messaging that other panels won't have the bandwidth for.
"House Democrats have an unprecedented opportunity to focus a new select committee on bringing new ideas to the table that will lift up the wages of working families as part of a jobs-creating pro-environment agenda," said environmental consultant Jeremy Symons. "That's a focus that cuts across areas of committee jurisdiction and is desperately in need of fresh ideas, new leadership, and a real commitment in this Congress and into the next elections."
Stephen Brown, a former House Democratic aide and oil refining lobbyist who's now a consultant, said Democrats want to use the panel as a "PR safety valve for climate change."
"They're not being very coy about it either," Brown said. "The idea would be the leadership does not want to do anything legislative on climate — it's not a smart move. But they need to put an altar together for people to worship on in that caucus. ... Politically, it's much safer to talk about it ad nauseam and do nothing that's controversial."
Pelosi would risk internal warfare if she tried to carve out jurisdiction for the panel, which would likely remain without the authority to write legislation.
Boucher, the former Energy and Commerce Democrat, wonders whether a messaging committee is worth having.
"If it's just messaging, that's the goal, then sure, it's fine," he said. "But one would think that a committee established under congressional auspices would be more than a messenger."
https://www.eenews.net/climatewire/2018/11/13/stories/1060105977
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ACE Comments Spark Contentious Debate over Legality of NSR Changes
Nov 13, 2018 | Inside EPA
By Dawn Reeves
EPA is facing starkly different interpretations of the legality of its plan to ease the threshold for triggering strict new source review (NSR) air permits for coal plants complying with its proposed utility climate rule, reviving a decades-old debate with pro-coal industry groups backing the changes and environmentalists strongly opposed.
The proposed NSR reforms are included in the Trump EPA's broader Affordable Clean Energy (ACE) rule that would replace the Obama-era Clean Power Plan with a narrower policy to address power plant greenhouse gas emissions. The agency seeks to change the emissions test for triggering NSR to an emissions-rate measure that would make it easier for facilities to avoid having to install modern pollution controls when making major modifications.
The issue is linked to the ACE proposal, which says coal plants only need to reduce GHGs by making efficiency improvements within their facility fence lines. However, such an efficiency project could trigger NSR. To avoid that disincentive, EPA also seeks to change the NSR trigger from a review of annual emissions to a look at the facilities hourly emissions rate, if a plant installs one of seven EPA-suggested efficiency technologies.
The annual test captures all emission increases that would occur at a facility, but the hourly test would allow improved plants to run more often without triggering NSR. They could thus emit more over time but not on an hourly basis, and avoid installing state-of-the-art controls such as scrubbers to limit sulfur dioxide (SO2) or selective catalytic reduction technology to limit nitrogen oxides (NOx).
EPA says the change would make NSR consistent with its new source performance standards (NSPS) program under section 111 of the air law, which is the same section under which EPA is developing ACE. There is much legal debate over the history of the NSR test and specific air law sections, including litigation over prior EPA NSR reform rules.
Backing the NSR changes is the Utility Air Regulatory Group (UARG) in Oct. 31 comments that say EPA's prior expansive interpretations of NSR have “been a source of regulatory uncertainty for the utility industry" that has been a disincentive to efficiency improvements.
"This Proposal provides a timely opportunity to carry out long-needed revisions to the NSR program's applicability provisions, in light of EPA's previous NSR enforcement efforts involving heat rate improvement projects,” UARG says.
The group adds that the types of projects on EPA's ACE candidate technology list "have since 1999 been targeted by EPA and citizen plaintiffs allegedly triggering" NSR. The group also disagrees that such technologies would otherwise trigger NSR but for the change in test proposed here.
The comments say the proposed NSR changes are necessary even without the ACE rule and should not be limited to efficiency improvements to comply with ACE. And they say that the Clean Air Act grants EPA flexibility in determining which emissions trigger test to use.
'Further Steps'
The National Mining Association (NMA) argues that without the NSR changes, "the full benefits of ACE will not be realized." It calls the hourly test "a necessary step to avoiding a regulatory 'catch-22' whereby investments in beneficial efficiency improvements resulting in lower emissions are thwarted simply because the improvements will also allow a power plant to generate and dispatch electricity more economically."
NMA asks EPA to "take further steps to strengthen its NSR proposal," including adding a causation provision that would limit NSR to projects that actually cause an emissions increase. "Thus, if a coal plant undertakes an efficiency project for today and there is a post-project increase in emissions tomorrow, NSR permitting should not be required for the efficiency project if the increase is the result of other independent factors, such as an increase in electric demand.”
Finally, NMA urges EPA to develop a statistical analysis for pre-project baseline and post-project evaluation "capable of determining when a statistically significant emissions increase actually occurs.”
The National Rural Electric Cooperative Association's comments also seek a causation provision and to explicitly exempt heat-rate improvement projects from NSR. "This will ensure that the energy system overall is calling upon the least-cost sources for electricity generation, without penalizing through the NSR program those who have implemented ACE-required heat rate improvement."
Additionally, Oct. 31 comments from the Electric Reliability Coordinating Council (ERCC) urge EPA to clarify that under any hourly test, "the question is whether a particular physical or operational change will cause (or has caused) an increase in hourly emissions." If an increase is unrelated to a physical or operational change, "then the change is not a modification and there is no need to apply the annual test.”
ERCC advocates instead for a maximum "achievable-to-achievable" hourly test as one that would “be easier to implement than an 'achieved-to-achieved' hourly test,” and says the achievable test is legally defensible because it was used for NSPS modifications.
GOP-run states that back the ACE proposal laud the NSR changes as allowing states, “should they so choose, to reduce the burdens of compliance with any section 111 standard."
The comments also say the proposal gives states "leeway to consider the possibility that compliance" with ACE "may require modifications that can trigger" NSR, "and factor in associated costs of that process when determining the appropriate standard for that source," referencing an alternate approach EPA includes in the proposal to address the interplay between section 111 and NSR.
The states say the proposed NSR trigger change has "an intuitive logic" because, "Sources should not be 'punished' for implementing (often already costly) pollution controls or other technical measures designed to reduce emissions or otherwise benefit the environment.”
'Significant Increases'
But environmentalists and Democratic states are blasting the NSR changes as unlawful, signaling the provisions would be challenged in court if finalized. They argue the move would result in massive emission increases and associated premature deaths and other health impacts, and would never require a coal plant to install modern controls while extending its useful life.
Joint comments from a coalition of major environmental groups charge that EPA seeks to unlawfully "conflate" the NSR and NSPS programs so that NSR would only be triggered when a change at an existing power plant "results in both significantly increased actual tons of emissions and an increased rate of hourly emissions. This would be a significant alteration of the statutory requirement that a modification triggers NSR when it 'increases the amount of any air pollutant,' as well as a radical departure from the current, longstanding regulatory scheme. . . . [T]he proposal would be unlawful if finalized because it does not meet the statutory requirement that increases in the 'amount' 'emitted' . . . are the trigger for NSR.”
They add that EPA does not limit the changes to ACE compliance projects "even while recognizing" those projects could increase emissions. And they say EPA "well knows" that increases in annual emissions "are likely to be substantial, even where hourly emission rates do not increase.”
The group cites an EPA NSR enforcement lawsuit against Duke Energy, where the company argued it did not increase hourly emission rates but acknowledged it increased annual emissions, including SO2 increases up to 14,300 tons per year and NOx increases up to 2,210 tons per year at just one project.
"The proposed approach will enable just such projects to escape NSR and increase actual annual emissions of air pollution by significant amounts. As EPA also is aware, this potential for significant increases in actual emissions results primarily from increased utilization of the unit and therefore exists regardless of how the increased hourly rate is calculated."
They call the proposed changes "a continuation of a decades-old effort by industry advocates to offer power companies a way to extend the life of older, inefficient plants, without installing modern and health-protecting pollution controls.”
Further, comments from Democratic state AGs opposed to ACE argue the NSR changes are "inconsistent with the language and purpose of the statute, and would result in increased air pollution. Indeed, in seeking to eviscerate the pollution reduction requirements of NSR here, EPA’s proposal is a misuse of a section 111(d) rulemaking, the statutory purpose of which is to secure reductions in dangerous pollution."
These states add that EPA's own ACE analysis shows increased air pollution in part because of the NSR exemption. That analysis demonstrates the increased pollution "will have a human toll, especially in our most vulnerable communities: thousands of additional deaths and illnesses that would be avoided if EPA implemented the Clean Power Plan.”
Similarly, a bipartisan coalition of state environmental agencies says, "A statutory obligation to design a regulatory framework that is intended to reduce emissions cannot be satisfied with one that has the potential to increase emissions.”
They add that the creation of a regulatory loophole in conflict with the mandate of the air law "would frustrate the purpose of the NSR program and harm our states' ability to achieve [air quality standards] and protect our residents' air quality and health. It would also exacerbate air pollution transport and interfere with Good Neighbor strategies based on the Cross State Air Pollution Rule.”
One utility industry attorney argues that the proposed NSR changes are not as big of a deal as opponents claim, but rather are "clarifying what the law has always been." The source adds that if the NSR trigger is clear, then a power plant owner can make a better determination if it is worthwhile to spend money on an efficiency project.
https://insideepa.com/daily-news/ace-comments-spark-contentious-debate-over-legality-nsr-changes
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