Preview Newsletter
AM ACC Clips Report - April 17, 2019
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(ACC Mentioned) Disputed EPA Policy Clouds Second Set of New Chemical Rules
Apr 16, 2019 | BNA Daily Environment Report
By Pat Rizzuto
The EPA has proposed a second batch of new chemical rules using an interpretation of the chemicals law disputed by environmental organizations. -
(ACC Mentioned) Coalition Presses For California Nail Product Regulations To Go Beyond Toluene
Apr 17, 2019 | Chemical Watch
By Kelly Franklin
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CertainTeed Must Pay Full $10M in Damages in Asbestos Suit
Apr 17, 2019 | BNA Daily Environment Report
By Peter Hayes
CertainTeed Corp. is on the hook for the full $10 million in damages awarded by a jury to a worker in an asbestos exposure suit, a California appeals court ruled. -
Rockies Natural Gas Supply Said Ample for Export Market
Apr 16, 2019 | Natural Gas Intelligence
By Richard Nemec
Enough robust natural gas supply exists in the Piceance Basin of Colorado and the Uinta Basin of Utah to serve western markets and provide a surplus to export overseas, the Consumer Energy Alliance said in a new report. -
Colorado Governor Signs Major Overhaul of Oil and Gas Rules
Apr 16, 2019 | Associated Press (In The New York Times)
By Dan Elliott
Colorado Gov. Jared Polis on Tuesday signed into law a major overhaul of state oil and gas rules, turning the focus away from encouraging production and directing regulators to make public safety and the environment their top priority. -
EPA Faces New Battle Over RMP As Industry Targets Meeting Requirement
Apr 17, 2019 | Inside EPA
By Ariana Figueroa
Complicating Trump EPA plans to rollback Obama-era facility safety rules, industry lawyers are warning that the agency faces constitutional challenges over its plan to retain provisions that require companies to hold a public meeting to disclose data on an incident, saying the mandate helps potential plaintiffs and seeks to regulate by “shaming.” -
Cybersecurity Advisory Committee Will Strengthen National Security Through A Stronger Public-Private Partnership
Apr 16, 2019 | The Hill - Congress Blog
By Patrick D. Gaul
Global cyber capabilities are proliferating at an unprecedented rate and posing additional strategic risk to the United States and private industry alike. Recent reporting done by CrowdStrike highlights improved capabilities by Russia, among others, who have increased cyber proficiency to penetrate networks in under 20 minutes. Compounding this is an issue the government continues to struggle with—stovepiping information and lumping organizations into “sectors.” -
(ACC Mentioned) EPA Emissions Guidelines Are Proper, DC Circ. Hears
Apr 16, 2019 | Law 360
By Keith Goldberg
Chemical, utility and other industry groups on Monday defended the U.S. Environmental Protection Agency's policy of allowing an easier permit review process for projects that won't significantly increase emissions, telling the D.C. Circuit that there's no merit to the Sierra Club's challenge of the policy. -
Northeast States Back Suit Over Interstate Ozone Petition Denials
Apr 17, 2019 | Inside EPA
New Jersey and New York are intervening in support of an appellate suit filed by Delaware, Maryland, and environmental groups that asks a federal appellate court to vacate EPA’s denial of Clean Air Act section 126 petitions that seek to force the agency to impose source-specific pollution cuts in upwind states. -
Ewire: Warren Pledges To Restore Obama-era Environmental Policies
Apr 17, 2019 | Inside EPA
Sen. Elizabeth Warren (D-MA) is pledging to reimpose the Obama-era Clean Water Act (CWA) rule and impose a “total moratorium” on new fossil fuel leasing on federal lands if she is elected president in 2020, part a series of steps she is proposing that would reinstate Obama-era environmental measures -
San Francisco Acts on Climate With More Building Audits
Apr 17, 2019 | BNA Daily Environment Report
By Joyce E. Cutler
More San Francisco building owners would have to audit and report energy use under a proposed expansion of an existing ordinance that seeks to limit greenhouse gas emissions. -
Morgan Stanley Seeks to Finance Global Cleanup of Plastic Trash
Apr 17, 2019 | BNA Daily Environment Report
By Emily Chasan
The New York-based bank unveiled a plan Tuesday to address the global plastics problem, from financing waste-management companies and selling ocean-conservation investment strategies to telling its analysts to start considering such refuse a material corporate issue. -
Bernhardt: Don't Ask Me To Fight Climate Change
Apr 17, 2019 | E&E Climatewire
By Adam Aton
Bernhardt says he accepts that humans contribute to warming — but says future climate projections are uncertain, and his job is to maximize energy development, not regulate carbon emissions.
Industry and Association News - There are no clips to report at this time.
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Environment News
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(ACC Mentioned) Disputed EPA Policy Clouds Second Set of New Chemical Rules
Apr 16, 2019 | BNA Daily Environment Report
By Pat Rizzuto
Designated uses of 11 chemicals would need to be reviewed, approved by EPA
Strategy helps speed entry of new chemicals into commerce
The EPA has proposed a second batch of new chemical rules using an interpretation of the chemicals law disputed by environmental organizations.
The Environmental Protection Agency interprets the 2016 Toxic Substances Control Act amendments as allowing it to let a new chemical enter commerce even if some manufacturing methods or uses of that chemical might pose an undue risk.
Those potentially worrisome manufacturing methods or uses—allowing a worker to inhale a chemical that may harm lungs, for example—can be controlled through significant new use rules and compliance with existing worker safety or other laws, according to the agency. On April 15, it posted proposed new use rules for 11 new chemicals.
The strategy also helps speed the entry of new chemicals into commerce, Greg Schweer, chief of the EPA’s new chemicals branch, said during a recent chemicals conference.
The Natural Resources Defense Council, however, maintains the agency’s interpretation of TSCA violates that law. The 2016 TSCA amendments require the agency to consider and manage any unreasonable “intended, known, or reasonably foreseen” risks of a new chemical before it can be sold, the environmental group says.
“EPA continues to skirt Congress’s requirement that it consider foreseeable uses of a new chemical before approving its use. EPA is not ensuring that new chemicals put into products—and to which workers may be exposed—are unlikely to pose an unreasonable risk, as the law requires,” Daniel Rosenberg, an NRDC attorney told Bloomberg Environment.
“It’s too early to say for certain whether there will be litigation, but Nancy Beck and the Trump EPA are definitely refusing to implement TSCA as Congress wrote it,” he said. Nancy Beck, principal deputy assistant administrator in the EPA’s chemicals and pesticides office, formerly worked for the American Chemistry Council, making her a frequent target for critics of the agency’s current chemical policies.
Significant New Use RulesUnder the proposed rules, neither chemical manufacturers nor processors could use any of the 11 chemicals in ways that the agency is concerned about unless the company requested and got the agency’s permission.
For example, many of the rules would prohibit any manufacture, processing, or use of a chemical in ways that could allow workers or other people to inhale it. Many rules also bar the release—above specific concentrations—of a chemical into water.
Unlike many regulations the EPA proposes, new use rules go into effect when they are proposed.
The idea is to require any company to give the EPA the opportunity to review any manufacturing method or use of a new chemical that raises concerns.
That makes even proposed significant new use rules “immediately protective across the supply chain,” Bergeson and Campbell PC said in a recent memo.
The 11 new chemicals, many of which are identified by generic names, will be used for purposes that include making plastic, adhesives, and metalworking fluid.
https://news.bloombergenvironment.com/environment-and-energy/second-batch-of-new-chemical-rules-issued-under-disputed-policy
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(ACC Mentioned) Coalition Presses For California Nail Product Regulations To Go Beyond Toluene
Apr 17, 2019 | Chemical Watch
By Kelly Franklin
Safer Consumer Products programme pressed to address solvents as a class
A coalition of public health and environmental advocates has asked a California agency to broaden the scope of its Safer Consumer Products programme review of nail salon products to address all solvents.
The request from the California Healthy Nail Salon Collaborative – a coalition of more than 60 public health groups and nail salon workers and owners – has come in response to the Department of Toxic Substances Control’s February proposal to name nail products containing toluene a priority product under the scheme.
If finalised, this designation would require manufacturers either to phase out the substance’s use or to conduct an alternatives analysis if they wish to continue selling products in California.
But in comments on the agency’s draft ‘product-chemical profile’, the coalition urged the DTSC to "go broader than the individual chemical toluene and name the functional chemical class of solvents" under the scheme.
This, it said, would ensure that other substances like methyl ethyl ketone, butyl acetate, ethyl acetate and isopropyl alcohol will not continue to be used as substitutes.
"DTSC’s data call-in from manufacturers will garner more information if the agency approaches the issue of safer nail products with a broader lens," it said. "Focusing on the functional class of solvents will provide greater incentive for industry to develop healthier substitutes."
It also pressed for the DTSC to consider doing further testing on other chemicals and nail product types. These include:glues and resins containing tosylamide formaldehyde resin (TSFR) or cyanoacrylate adhesives and binders;plasticisers like dibutyl phthalate (DBP), triphenyl phosphate (TPHP), trimethyl pentanyl diisobutyrate (TBDB) and bis(2-ethylhexyl) phthalate (DEHP); artificial nail products containing various acrylates;pigments and metals, which may be made respirable through buffing an artificial nail or during the removal of gel polish; andchemicals used to protect from UV light, such as benzophenone and benzophenone-1.
The NGO Women’s Voices for the Earth (WVE) added that the DTSC should encourage manufacturers to develop nail products that do not contain toluene "or other hazardous VOCs or plasticisers".
"This will require investment in green chemistry techniques and innovations to ensure that new products have the same efficacy as the older products and meet the practical needs of nail salon workers," wrote Alex Scranton, WVE director of science and research.Industry response
For its part, the Personal Care Products Council (PCPC) said that its members do not intentionally add toluene to nail products. Its comments therefore centred on the establishment of a de minimis level, below which an alternatives analysis would not be required.
It recommended that this align with the Proposition 65 maximum allowable dose level (MADL) for toluene of 7,000 µg/day oral and 13,000 µg/day for inhaled exposure.
Meanwhile, the American Chemistry Council’s panel for toluene and xylene pointed out "several shortcomings that must be corrected for the draft profile to achieve scientific integrity and credibility".
Among the trade group’s concerns are that the DTSC has combined multiple exposure scenarios into an "oversimplified group" and has characterised present day exposures based on a 1994 study.
And it criticised the agency for mainly ignoring "the extensive and scientifically relevant literature on toluene, basically disregarding the available benchmark reference concentrations" from authoritative sources like the EPA, the Agency for Toxic Substances and Diseases Registry (ATSDR) and the National Institute of Occupational Safety and Health (Niosh).
"DTSC should consider the overall body of evidence and conduct a weight-of-evidence analysis on the mechanisms of toluene toxicity and incorporate relevant exposure scenarios to appropriately characterise risk for each unique exposure profile," it added.
The agency says that it will consider input it has received as it finalises the profile in preparation for a formal rulemaking.
https://chemicalwatch.com/76581/coalition-presses-for-california-nail-product-regulations-to-go-beyond-toluene
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CertainTeed Must Pay Full $10M in Damages in Asbestos Suit
Apr 17, 2019 | BNA Daily Environment Report
By Peter Hayes
Proposition 51 doesn’t apply to intentional torts
Issue has divided California courts
CertainTeed Corp. is on the hook for the full $10 million in damages awarded by a jury to a worker in an asbestos exposure suit, a California appeals court ruled.
The trial court shouldn’t have apportioned the jury’s $9.25 million award for non-economic damages according to CertainTeed’s proportion of fault, the court said. The lower court had cut those damages against CertainTeed to $5.7 million.
California’s Proposition 51 isn’t meant to apply to intentional tortfeasors, the appeals court said, ruling on an issue that has divided the California appeals courts. The 1986 law limits the liability for non-economic damages of each defendant to the portion attributable to its share of fault.
Michael Burch worked for many years installing asbestos-cement pipe throughout California.
After he contracted mesothelioma, Burch sued airconditioning pipe manufacturer CertainTeed, alleging his workplace exposure to the company’s products caused his illness.
A jury returned a verdict against CertainTeed for negligence, failure to warn, strict product liability, intentional concealment, and intentional misrepresentation.
The jury found CertainTeed to be 62 percent at fault, and apportioned the remaining liability among several defunct companies.
The court entered judgment for Burch, holding CertainTeed 100 percent liable for his $776,000 in economic damages, and 62 percent liable for his non-economic damages, based on the jury’s fault apportionment.
The appeals court reversed the judgment and remanded with directions to the trial court to enter a new judgment holding CertainTeed jointly and severally liable for all of Burch’s economic and non-economic damages.
Judge Tracie L. Brown wrote the opinion, joined by Judges Stuart R. Pollak, and Alison M. Tucher.
Kazan McClain Satterley & Greenwood PLC represents Burch.
Schiff Hardin LLP and Dentons US represent CertainTeed.
The case is Burch v. CertainTeed Corp., 2019 BL 133822, Cal. Ct. App., 1st Dist., No. A152252, 4/15/19.
https://news.bloombergenvironment.com/environment-and-energy/certainteed-faces-full-10m-in-damages-in-asbestos-suit
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Rockies Natural Gas Supply Said Ample for Export Market
Apr 16, 2019 | Natural Gas Intelligence
By Richard Nemec
Enough robust natural gas supply exists in the Piceance Basin of Colorado and the Uinta Basin of Utah to serve western markets and provide a surplus to export overseas, the Consumer Energy Alliance said in a new report.
Subscription required for full article:
https://www.naturalgasintel.com/articles/118060-rockies-natural-gas-supply-said-ample-for-export-market
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Colorado Governor Signs Major Overhaul of Oil and Gas Rules
Apr 16, 2019 | Associated Press (In The New York Times)
By Dan Elliott
DENVER — Colorado Gov. Jared Polis on Tuesday signed into law a major overhaul of state oil and gas rules, turning the focus away from encouraging production and directing regulators to make public safety and the environment their top priority.
The law also gives local government significant new authority to restrict the location of wells, which could limit or prohibit drilling in some areas near homes and schools.
"Today, with the signing of this bill, it is our hope that the oil and gas wars that have enveloped our state are over, and the winner is all of us," said Polis, a Democrat.
The state has struggled for years to balance the interests of the booming industry against growing concerns of people who live nearby drilling rigs, wells and tanks.
Colorado ranks fifth nationally in crude oil production and sixth in natural gas. The industry says it contributes $32 billion annually to the state economy, including taxes and 89,000 direct and indirect jobs.
But fast-growing communities north of Denver are spilling into the state's most productive oil and gas area, the Wattenberg field, sparking complaints about noise and pollution and provoking fears about explosions.
In 2017, natural gas escaping from a severed pipeline was blamed for an explosion that destroyed a house in Frederick, about 30 miles (50 kilometers) north of Denver. Mark Martinez and his brother-in-law, Joseph Irwin, were killed.
Martinez's wife, Erin, was badly injured. She became a quiet but effective advocate for the new law.
"This is something that means a lot to our family," she said after Polis signed the bill. "We feel like it's a great way to honor Mark and Joey. The second anniversary (of the explosion) is tomorrow, so it's really fitting we got that done before that came."Editors’ PicksI Had to Do It Without Telling My BelovedMartha Stewart’s Right-Hand ManStephen Curry Has a Popcorn Problem
Supporters said the law brings much needed protections for Colorado's booming population, its environment and its growing recreation industry.
Opponents warned the law could stifle a major industry, kill jobs and shrink tax revenue.
Barbara Kirkmeyer, a Weld County commissioner and fervent industry supporter, is leading an effort to ask voters to overturn the law in November. She said her proposal would create an independent regulatory commission insulated from Colorado's back-and-forth battles over oil and gas.
Also in Weld County, critics of Democratic state Rep. Rochelle Galindo, who voted for the law, started a drive to oust her. They need about 5,700 petition signatures by June 3 to force a recall election.
Colorado voters rejected previous attempts to impose tighter restrictions on the industry, including a proposal on last November's ballot that would have increased the minimum distance between new wells and homes from 500 feet (150 meters) to 2,500 feet (750 meters).
The industry spent heavily on advertising to defeat the measure.
The new law does not change the setback but does allow local government to use land-use regulations to limit where wells can be drilled. That could make it much harder to drill on the western and southern edges of the Wattenberg field, near Boulder and the Denver suburbs.
But industry-friendly Weld County is not expected to impose tougher rules.
Industry analysts said the law will increase the cost of drilling for oil and gas in Colorado, which could drive some companies to states with fewer restrictions.
Specific effects of the law won't be clear until state and local regulations are rewritten, which could take years, said Dan Haley, president of the Colorado Oil and Gas Association.Sign Up for the Crossing the Border Newsletter
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Haley said the industry supported some amendments that were made before final passage but still opposes the legislation overall.
https://www.nytimes.com/aponline/2019/04/16/us/ap-us-oil-and-gas-conflicts-colorado.html?searchResultPosition=4
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EPA Faces New Battle Over RMP As Industry Targets Meeting Requirement
Apr 17, 2019 | Inside EPA
By Ariana Figueroa
Complicating Trump EPA plans to rollback Obama-era facility safety rules, industry lawyers are warning that the agency faces constitutional challenges over its plan to retain provisions that require companies to hold a public meeting to disclose data on an incident, saying the mandate helps potential plaintiffs and seeks to regulate by “shaming.”
“A regulatory agency has never before adopted a regulation compelling the owner/operator of a regulated facility to hold a public meeting where its representatives must present information about a chemical release or adverse event at a facility,” Lawrence Halprin and Javaneh Nekoomaram, attorneys at Keller and Heckman, write in a recent paperpublished by the Washington Legal Foundation (WLF), a free-market litigation group.
“Such a meeting will increase an owner/operator’s risk of tort claims, citizen suits, and civil and criminal enforcement actions brought by federal and state EPA, federal and state OSHA, other federal and state enforcement agencies, and even state district attorneys,” they charge.
Among other things, the lawyers argue that the requirement in EPA's Risk Management Plan (RMP) rule violates 1stAmendment protections by compelling speech, 4th Amendment protections barring unreasonable searches and 5th Amendment protections barring self-incrimination.
In an interview, Halprin says he will submit his paper detailing his concerns though he acknowledges that because the comment period closed in August, the agency is not bound to addresses the concerns.
Nevertheless, Halprin says he assumes there will be “substantial litigation” from industry over the requirement.
Such legal action would put new pressure on EPA to repeal additional provisions from the Obama-era RMP rule despite threats from environmentalists and others who say they will sue over the rollbacks the agency has already proposed.
Some industry groups are already urging EPA to quickly finalize its planned RMP rollback. They fear expected litigation could extend beyond compliance deadlines for the Obama-era rule’s most onerous provisions that take effect between 2020 and 2022 after the Trump administration failed to stave off environmentalists' legal challenges to their efforts to delay the rule's effective date.
But the industry effort faces resistance as environmentalists and public health groups are ramping up their calls for EPA to drop the planned rollback, citing recent incidents at Houston-area petrochemical facilities.
The Obama administration's 2017 RMP rule sought to strengthen a host of provisions in the existing program in the wake of an explosion at a West, TX, fertilizer facility that killed 15 people, including ten first responders who lacked data on the facility.
As one of a series of steps to improve coordination with first responders and the public, the rule required an owner/operator of a stationary source, within 90 days of an incident, to hold a public meeting to provide accident information mandated by other provisions in the rule. It also required the owner/operator to provide an “updated RMP plan within six months of the incident.”
The rule's preamble states that a public meeting will “ensure that first responders and members of the community have easier access to appropriate facility chemical hazard information, which can significantly improve emergency preparedness and their understanding of how the facility is addressing potential risks.”
Trump Rollback
The Trump administration sought to rescind a series of amendments relating to safer technology and alternatives analyses, third-party audits, incident investigations, information availability, and several other minor regulatory changes, but sought to retain the meeting requirement. “For provisions of the RMP Amendments that we propose to retain, we continue to rely on the rationale and responses we provided when we promulgated the Amendments,” the proposal said.
But the industry attorneys say there is no evidence that the information gained from a public meeting after an incident at a chemical facility would improve preparedness for first responders and members of the community.
And they say that the requirement violates constitutional protections. For example, they say the requirement violates the 1st Amendment, which “protects against government compulsion of commercial speech.”
Similarly, they say the requirement violates twin protections provided by the 4th and 5th Amendments because it requires industry to provide data that suggests a violation in the absence of a final enforcement order. As a result, “creates unauthorized discovery and enforcement tools that go beyond those authorized by Congress, ignores due process, exposes individuals to self-incrimination, creates a scenario where confidential business information will be disclosed, and improperly subjects businesses and individuals to punitive measures (public shaming/humiliation and damage to good will).”
“I’d like to think the agency would give this a little more thought,” Halprin says, adding that “there are companies that might decide that it would be great to hold a [public meeting]” but “it’s not realistic to tell a company to hold a public meeting.”
In their paper, Halprin and Nekoomaram say that EPA failed to consider alternative approaches, such as requiring submission of the data to EPA or another agency, which could then make it available under the Freedom of Information Act.
“Rather than pursue or even consider these alternatives, EPA adopted a rule that creates a new and unprecedented discovery mechanism for agency enforcement actions and citizen suits, and further perpetuates the policy of the Obama Administration to subject owners/operators of facilities that received a citation or notice of violation to ‘regulation by shaming’ before any final determination of whether the law has been violated,” the attorneys write.
And they add that Congress did not give EPA the authority to compel employers to hold such meetings.
https://insideepa.com/daily-news/epa-faces-new-battle-over-rmp-industry-targets-meeting-requirement
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Apr 16, 2019 | The Hill - Congress Blog
By Patrick D. Gaul
Global cyber capabilities are proliferating at an unprecedented rate and posing additional strategic risk to the United States and private industry alike. Recent reporting done by CrowdStrike highlights improved capabilities by Russia, among others, who have increased cyber proficiency to penetrate networks in under 20 minutes. Compounding this is an issue the government continues to struggle with—stovepiping information and lumping organizations into “sectors.”
Despite bureaucracy and a multi-jurisdictional quagmire, the federal government is moving in the right direction with the establishment of the Cybersecurity and Infrastructure Security Agency (CISA). As the newest agency within DHS, CISA was elevated from its previous incarnation as the National Protection and Programs Directorate (NPPD) to the status of a standalone agency in late 2018. CISA is tasked not only with coordinating the protection of the nation’s critical infrastructure and the .gov domain but also helping secure soft targets, crowded spaces, and schools. A major focus of its mission necessitates strong public-private sector cybersecurity partnerships that involve exchanging cyber threat intelligence and communicating about critical cybersecurity issues that affect national security.
To succeed, CISA must ensure this high degree of public-private collaboration because the private sector owns, operates, and maintains approximately 85 percent of our nation’s critical infrastructure. It should alarm us as a nation that this privately-owned critical infrastructure contains significant security vulnerabilities. As an example, according to security company CyberX, “[Industrial] control systems continue to be soft targets for adversaries, with […] security gaps in key areas such as plain-text passwords (69% [of networks]), direct connections to the internet (40%), weak anti-virus protections (57%), and [Wireless Application Protocols] WAPs (16%).” These security vulnerabilities increase the probability of cyberattacks that threaten our national security, economic prosperity, and public health and safety.
To ensure a high level of collaboration and build connections across industries, Congress has acted by introducing the Cybersecurity Advisory Committee Authorization Act of 2019. This act, which was introduced by Rep. John Katko (R-N.Y.) and endorsed by the National Technology Security Coalition (NTSC), will establish an advisory committee of 35 cybersecurity professionals across various industries to provide Director of CISA Christopher Krebs and the DHS Secretary guidance on cybersecurity policy and rulemaking. Having broad membership will ensure that CISA is not receiving stovepipe information and can make recommendations that will have the highest impact across all sectors.
As the only association solely representing the Chief Information Security Officer, the NTSC applauds Reps. Katko, Dan Lipinski (D-Ill.), Dan Newhouse (R-Wash.), and Brian Fitzpatrick (R-Pa.) for their bipartisan leadership to establish the Cybersecurity Advisory Committee. The 35 cybersecurity professionals on this committee will consist of those at the frontline of protecting enterprises from state and non-state actors around the globe. If asked, our CISO members are prepared to serve on the Cybersecurity Advisory Committee to help better protect the U.S. from cyberattacks.
With the Cybersecurity Advisory Committee Authorization Act of 2019, Katko continues to be a leader in bridging the cybersecurity gap between the public and private sectors. His work of protecting the U.S. from cyberattacks is critical to our national security, and we urge Congress to pass this important industry-agnostic, bipartisan bill.
Patrick D. Gaul is the Executive Director of the National Technology Security Coalition (NTSC), is a non-profit, non-partisan organization that serves as an advocacy voice for Chief Information Security Officers (CISOs) across the nation.
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(ACC Mentioned) EPA Emissions Guidelines Are Proper, DC Circ. Hears
Apr 16, 2019 | Law 360
By Keith Goldberg
Law360 (April 16, 2019, 4:47 PM EDT) -- Chemical, utility and other industry groups on Monday defended the U.S. Environmental Protection Agency's policy of allowing an easier permit review process for projects that won't significantly increase emissions, telling the D.C. Circuit that there's no merit to the Sierra Club's challenge of the policy.
At issue is an April 2018 EPA memo on how new or modified projects that emit air pollution, such as fine particulate matter or ground-level ozone, must show compliance with the Clean Air Act's Prevention of Significant Deterioration permitting requirements. Groups including the U.S. Chamber of Commerce, American Chemistry Council and Air Permitting Forum say the EPA's memo reasonably concluded if projects can demonstrate that "they 'will not cause, or contribute to'" a violation of air quality standards and won't increase pollution more than an amount called the "significant impact level," they don't have to go through the normal, stringent permit review process.
"It provides tools to streamline permitting by screening out sources with trivial impacts from unnecessarily burdensome requirements, advancing the act's goal of promoting development while preserving air quality," the groups told the D.C. Circuit in a brief Monday.
The Sierra Club challenged the EPA memo in June, arguing that the memo allows projects to exceed pollution thresholds if the impact "is below the relevant SIL." The point of the prevention of significant deterioration program is to make sure new sources of emissions won't cause a violation "of the [National Ambient Air Quality Standards] or any increment." The memo provides a way around that requirement, the green group said.
"It authorizes permitting authorities to skip the required demonstration and allow construction of a proposed source if the source shows its individual air pollution impact is less than a SIL, without looking at whether a NAAQS or increment violation will actually occur or worsen," the Sierra Club said in a November brief. "The SILs memo thus illegally abrogates the Clean Air Act's primary way of preventing significant deterioration."
But the industry groups argued in their brief Monday that the Sierra Club is misinterpreting the EPA's SIL program and ignores the independent obligation of permitting authorities "to justify their ... analysis for each permit on a case-by-case basis." The guidance only provides recommended SILs that permitting authorities may use, the groups said.
"Permitting authorities remain free to use different SILs, or not use them at all,” the groups said in their brief. “Further, SILs are not dispositive on whether a proposed source will cause or contribute to NAAQS or increment violations. That determination must be made in each case by the permitting authority on a permit-specific record."
For its part, the EPA told the D.C. Circuit last month that its memo isn't a final agency action and therefore, can't be challenged in court. Even if it can be challenged, the agency said the memo was a reasonable interpretation of the Clean Air Act and PSD requirements.
"EPA reasonably interprets the language to allow permitting authorities to conclude that modeled air quality impacts below the recommended SILs, based on consideration of the facts in each permitting action and the statistical analysis developed by EPA, do not cause or contribute to a violation in the modeled area," the agency said in a March 18 brief.
Representatives for the parties couldn't be immediately reached for comment Tuesday.
The Air Permitting Forum is represented by Shannon S. Broome and Charles H. Knauss of Hunton Andrews Kurth LLP.
The other industry groups are represented by Makram B. Jaber, Lucinda Minton Langworthy and Andrew D. Knudsen of Hunton Andrews Kurth LLP.
The Sierra Club is represented by Gordon E. Sommers and Seth L. Johnson of Earthjustice.
The EPA is represented by Brian H. Lynk of the U.S. Department of Justice's Environment and Natural Resources Division, as well Brian Doster and Mark Kataoka of the agency's Office of General Counsel.
The case is Sierra Club v. U.S. Environmental Protection Agency et al., case number 18-1167, in the U.S. Court of Appeals for the District of Columbia Circuit.
https://www.law360.com/energy/articles/1150349/epa-emissions-guidelines-are-proper-dc-circ-hears
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Northeast States Back Suit Over Interstate Ozone Petition Denials
Apr 17, 2019 | Inside EPA
New Jersey and New York are intervening in support of an appellate suit filed by Delaware, Maryland, and environmental groups that asks a federal appellate court to vacate EPA’s denial of Clean Air Act section 126 petitions that seek to force the agency to impose source-specific pollution cuts in upwind states.
In an April 12 intervenor brief, the Empire State, Garden State, and New York City ask the U.S. Court of Appeals for the District of Columbia Circuit to require the agency to make “appropriate section 126 findings and to impose source-specific emissions limitations” on the sources identified in the petitions.
The intervenors argue that EPA improperly rejected consideration of certain data in Delaware’s petition on out-of-state ozone measurements, saying air pollution monitors located in other states justify the petition.
In addition, they attack the agency’s reliance on its Cross-State Air Pollution Rule (CSAPR) emissions trading program as part of its justification for rejecting the states’ petitions. They say that CSAPR, which established a cap-and-trade program to reduce ozone-forming nitrogen oxides from power plants, is inadequate to satisfy the two states’ requests seeking source-specific ozone controls to improve their air quality.
The brief is the latest legal filing with the D.C. Circuit in State of Maryland, et al. v. EPA, et al. which consolidates suits over the section 126 petition denials. The industry intervenors, the Utility Air Regulatory Group, Duke Energy Indiana and Duke Energy Kentucky, will file their brief on June 26 to defend the agency’s decision.
Section 126 allows states to petition the agency to directly regulate air pollution sources in upwind states that are hindering petitioners’ ability to attain national ambient air quality standards (NAAQS).
States can only regulate emissions sources, such as power plants, within their borders -- but a number of eastern states fear that their own controls on sources will be inadequate to attain certain NAAQS, such as the 2015 ozone standard of 70 parts per billion (ppb).
Delaware and Maryland filed separate petitions with EPA targeting specific sources in other states whose emissions transport across their borders and are hindering their air quality.
But the Trump EPA has rejected several such petitions, preferring to rely instead on state implementation plans that states are required to craft to meet the air law's “good neighbor” obligation to prevent their emissions worsening air quality in other states.
EPA said an existing update to CSAPR adequately addressed the concerns the states detailed in their petitions, because by 2023 the rule will have helped states attain the weaker 2008 ozone NAAQS of 75 ppb.
Northeastern states counter that EPA's projections are too optimistic, and current agency action is not adequate to help states meet NAAQS by applicable attainment deadlines. Critics of the petition denials also say that the CSAPR update will not help states out of attainment with the stricter 70 ppb ozone standard reach attainment.
Delaware, Maryland, and environmental groups made these arguments in their March 29 opening briefs in the case, and the intervenor brief from New Jersey and New York echoes those claims.
For example, the brief says that EPA improperly rejected Delaware’s petition in part by faulting the state for basing its petition to an extent on ozone data from monitors located outside the state. “EPA ignored the purpose and regulatory consequences of the shared-nonattainment-area framework it employs. EPA designates multistate nonattainment areas based on a technical determination that the entire area is collectively responsible for a shared nonattainment problem. Yet EPA’s approach would bar States that are subject to the public-health harms and regulatory consequences of nonattainment from a remedy Congress made available to States,” it says.
The brief also claims EPA erred in relying in part on the existence of the CSAPR update rule to justify rejecting the petitions. “EPA offered no reasonable explanation for how a regional transport rule, establishing state-level emissions budgets, could foreclose the source-specific relief that Maryland and Delaware sought in their petitions.”
Some of the arguments New York raises could arise in later briefing in a deadline suit it filed April 12 in the U.S. District Court for the Southern District of New York, seeking an EPA response to its own March 12, 2018, section 126 petition urging the agency to regulate ozone sources in other states.
The air law mandates a decision on petitions within 60 days of filing, though the agency can grant itself extensions. “Despite granting itself a six-month extension until November 9, 2018, EPA has failed to hold a public hearing or take final action in response to the Petition,” the district court complaint says. The state wants an order from the court setting a deadline for the agency to either grant or deny the petition.
https://insideepa.com/daily-feed/northeast-states-back-suit-over-interstate-ozone-petition-denials
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Ewire: Warren Pledges To Restore Obama-era Environmental Policies
Apr 17, 2019 | Inside EPA
Sen. Elizabeth Warren (D-MA) is pledging to reimpose the Obama-era Clean Water Act (CWA) rule and impose a “total moratorium” on new fossil fuel leasing on federal lands if she is elected president in 2020, part a series of steps she is proposing that would reinstate Obama-era environmental measures
“The Trump administration is busy selling off our public lands to the oil, gas and coal industries for pennies on the dollar -- expanding fossil fuel extraction that destroys pristine sites across the country while pouring an accelerant on our climate crisis,” Warren writes in an April 15 blog post on Medium announcing the new policy.
In addition to pausing new oil, gas and coal leasing, Warren also hopes to boost onshore and offshore renewable energy on public lands, pledging to set a goal of providing 10 percent of the country's overall generation from renewables on public lands.
“It's not enough to end our public lands' contribution to climate change. We have an enormous opportunity to make them a part of the climate solution, and for both economic and environmental reasons, we should take it,” she writes.
Warren's focus on climate and lands issues is another signal that the topic could have a larger importance in the 2020 election, as nearly 20 Democratic presidential hopefuls try for the chance to take on President Donald Trump in the general election.
The Massachusetts senator has long been associated more with consumer protection and financial regulation issues, so her recent environmental policies could also be an effort to establish her bona fides in that area.
As CNBC notes, Warren's moratorium pledge would go beyond the Obama administration's decision to pause new coal leasing while the Interior Department (DOI) reviewed the climate effects of the program. Trump officials have reversed both the moratorium and the climate review.
Obama officials declined to pause new onshore and offshore oil and gas leases, though some environmentalists had urged the administration to take such a step.
Warren is also pledging to reinstate DOI's methane standards for oil and gas drilling on federal lands -- a rule that the Trump administration has largely rolled back but which was based on EPA's methane rules for new drilling equipment across the country.
She also promised to reinstate the Obama EPA's 2015 Clean Water Act jurisdiction rule. There is currently a “patchwork” of regulation, with the Obama-era rule applying in 22 states while it has been blocked by various court orders in the remainder of the country.
The public comment period just closed on the Trump EPA's proposal to create a far narrower CWA jurisdiction standard -- a plan that many state officials say would leave them with uncertain and potentially costly burdens to regulate waterbodies that the rule would leave to state discretion.
https://insideepa.com/daily-feed/ewire-warren-pledges-restore-obama-era-environmental-policies
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San Francisco Acts on Climate With More Building Audits
Apr 17, 2019 | BNA Daily Environment Report
By Joyce E. Cutler
Proposed law adds smaller nonresidential, larger residential buildings
Emissions audit every five years, energy use reports yearly
More San Francisco building owners would have to audit and report energy use under a proposed expansion of an existing ordinance that seeks to limit greenhouse gas emissions.
Smaller nonresidential and multifamily residential buildings will have to reportenergy use each year under the law, which the city’s supervisors, the legislative body, unanimously approved April 16.
New buildings are already subject to high environmental performance standards, and this measure seeks to improve energy performance in existing buildings as part of an effort to address climate change.
About 45 percent of the city’s greenhouse gas emissions in 2016 came from existing buildings, the proposed ordinance said.
San Francisco was the first city in California—and among the first nationally—to adopt annual benchmarking for large commercial buildings and for residential buildings larger than 50,000 square feet, which have now become statewide standards.
The legislation now heads to Mayor London Breed (D), who has 10 days to sign, veto, or let the legislation become law without her signature.
New Audits for ResidentialThe amended law would require owners of residential buildings larger than 50,000 square feet, roughly a 40-unit building, to conduct audits every five years and report energy usage each year.
Nonresidential buildings of 10,000 to 49,999 square feet would also be required to pay for a walkthrough audit, one that’s less comprehensive than the requirement for larger buildings.
The energy usage report would include energy consumption by fuel, including electricity, natural gas, and steam. The San Francisco Department of the Environment would be required to collect and make public summary statistics about the energy performance of such buildings.
San Francisco eight years ago enacted an energy use transparency and reporting law. That resulted in an average 6.3 percent drop in energy usage between 2013 and 2017. Municipal buildings’ energy use dropped 26.5 percent since 2009, the proposed ordinance said.
New York City also adopted energy benchmarking about the same time as San Francisco, with Washington, D.C. and Seattle joining in. Now 25 cities across the country have adopted the reporting, including Berkeley and Los Angeles.
Penalties under the existing ordinance, adopted in December 2010, range from $50 a day for buildings of up to 49,999 square feet, to $100 daily for buildings of 50,000 square feet and greater, with a maximum of 25 days for each building in violation.
https://news.bloombergenvironment.com/environment-and-energy/more-san-francisco-buildings-potentially-subject-to-energy-audits
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Morgan Stanley Seeks to Finance Global Cleanup of Plastic Trash
Apr 17, 2019 | BNA Daily Environment Report
By Emily Chasan
Morgan Stanley says capital-markets division will focus on underwriting bonds aimed at reducing plastic waste
Wealth-management unit to home in on making waste-reduction products available to more investors
Morgan Stanley wants to help cut waste globally and has one word for its focus: plastics.
The New York-based bank unveiled a plan Tuesday to address the global plastics problem, from financing waste-management companies and selling ocean-conservation investment strategies to telling its analysts to start considering such refuse a material corporate issue. The firm is also removing all single-use plastic, such as forks and cups, from its own offices.
“There’s a large opportunity to make better use of these resources,” said Audrey Choi, Morgan Stanley’s chief marketing and sustainability officer. “About $80 billion to $120 billion of value in plastic packaging doesn’t get reused and, as an investor, that’s a sub-optimal use of capital.”
The firm isn’t sure how big the market for plastic-waste banking will grow, but sees the issue as ripe for innovation. Morgan Stanley said that its capital-markets division will focus on underwriting bonds aimed at reducing plastic waste, and building a market for “blue bonds” that support marine environments and sustainable fishing economies in developing countries. The company’s wealth-management unit will focus on making waste-reduction products available to more investors.
Morgan Stanley also sees opportunities to finance consumer-product companies that are trying to use less packaging, as well as municipalities or universities working to improve their recycling infrastructure and technology. Alternatives such as bioplastics are also compelling, the bank said. The bank set a goal of removing 50 million metric tons of plastic waste from the environment by 2030.
“This is going to need to be a very significant investment area going forward,” Choi said. “Plastic is an incredibly important part of the economy today, so we have to think about how it is being redesigned, reused, collected, recycled and ultimately disposed of across the entire value chain.”
https://news.bloombergenvironment.com/environment-and-energy/morgan-stanley-seeks-to-finance-global-cleanup-of-plastic-trash
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Bernhardt: Don't Ask Me To Fight Climate Change
Apr 17, 2019 | E&E Climatewire
By Adam Aton
Newly minted Interior Secretary David Bernhardt doesn't consider it his job to combat climate change.
Bernhardt says he accepts that humans contribute to warming — but says future climate projections are uncertain, and his job is to maximize energy development, not regulate carbon emissions.
"The Department of the Interior's role is to follow the law in carrying out our responsibilities using the best science. Congress has not directed us to regulate carbon emissions," he wrote to the Senate Energy and Natural Resources Committee, which had been considering his nomination, in late March. Bernhardt was confirmed this month.
"The laws governing Interior — such as the Federal Land Policy and Management Act — require us to manage our onshore federal resources on the basis of multiple use and sustained yield, which includes energy development," Bernhardt continued.
He gave versions of that answer to multiple questions, writing elsewhere that Interior is obliged to get "maximum sustained yield" from energy development.
Climate does shape some department actions, Bernhardt acknowledged.
"The Department's role is to follow the law in carrying out our responsibilities using the best science," he wrote. "We do evaluate the climate impacts of proposed actions. The [U.S. Geological Survey] scientists have told me there is no 'best' climate model, that each has its strengths and weaknesses."Climate science
Bernhardt sidestepped questions probing how much he accepts climate science, including from Sen. Maria Cantwell.
The Washington Democrat quoted several findings from the National Climate Assessment, including: "Future impacts and risks from climate change are directly tied to decisions made in the present."
Bernhardt didn't say whether he agreed with that or how quickly the United States should wean itself off fossil fuels. He instead echoed general statements from his confirmation hearing: Climate change is occurring, and Interior should use the best available science.
He also wrote that his personal beliefs played no role in the order he signed erasing the departmental handbook's chapter on climate change.
That was just fulfilling an executive order signed by President Trump, Bernhardt said.
Bernhardt, though, has participated in White House discussions on forming a panel to question climate science, including the National Climate Assessment, according to The Washington Post.Scientific integrity
Bernhardt defended the department from accusations of political meddling in science.
Formal complaints of breached scientific integrity have declined over the past two years, Bernhardt wrote.
He also rebutted complaints from two former senior researchers who quit the U.S. Geological Survey after then-Secretary Ryan Zinke reviewed their assessment of the National Petroleum Reserve prior to publication (Greenwire, Feb. 22, 2018).
Quoting his science adviser, Bernhard said the review did not violate scientific integrity because nobody asked to alter the findings.
He said scientific integrity is what spurred the department to start prioritizing research with reproducible results and public data (Climatewire, Oct. 4, 2018).
"I believe when scientific data is evaluated on its merits and used as a basis to make legal and policy decisions that incorporate the science, conflicts will be reduced and those decisions will be reliable and legally sound," he wrote.
https://www.eenews.net/climatewire/2019/04/17/stories/1060171845
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