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Senate Launches Chemical Reform Push
Mar 10, 2015 | The Hill
By Lydia Wheeler
Sens. Tom Udall (D-N.M.) and David Vitter (R-La.) are introducing legislation to overhaul the nation's chemical laws, which are widely viewed as broken. -
Udall, Vitter Offer Up TSCA Compromise
Mar 10, 2015 | PoliticoPro - Whiteboard
By Darren Goode
Sens. Tom Udall and David Vitter today introduced their compromise on updating the 1976 Toxic Substances Control Act, with seven Democrats and seven Republicans as cosponsors. -
EPA Considering Rare Ban Under TSCA For Paint-Stripping Chemical
Mar 10, 2015 | InsideEPA
By Maria Hegstad
EPA's toxics managers are mulling the possibility of initiating a rare ban of the paint-stripping solvent methylene chloride, indicating a continued focus on regulating "existing" chemicals on the heels of the agency's plans to explore similar restrictions on the common degreasing solvent trichloroethylene (TCE). -
Washington State Flame Retardants Bill Passes the House
Mar 10, 2015 | Chemical Watch
Washington state's House of Representatives has passed with a massive majority, a bill that would ban five flame retardants in furniture and children's products. -
US Chemical Safety Board in Turmoil
Mar 10, 2015 | Chemistry World
By Rebecca Trager
The US Chemical Safety Board (CSB), an independent federal agency charged with investigating serious chemical accidents, is being accused of punishing whistleblowers and appears to have widespread employee dissatisfaction. -
GOP’s ‘Just Say No’ Climate Strategy Stirs Doubts for EPA
Mar 10, 2015 | PoliticoPro
By Erica Martinson
Supporters of President Barack Obama’s climate regulations are getting worried EPA may have few tools to use if states decide to follow conservatives’ advice and refuse to cooperate with the agency on climate change regulations. -
Debate Grows Louder Over States Saying 'No' to Clean Power Plan
Mar 10, 2015 | E&E - Greenwire
By Jean Chemnick
Foes of U.S. EPA's Clean Power Plan are weighing the legal and political pros and cons of a "just say no" approach to the draft rule aimed at curbing heat-trapping greenhouse gases from power plants. -
Consumers Trapped in the Middle of Big Coal's Fight for Survival
Mar 10, 2015 | E&E - Energywire
By Joel Kirkland
Chris Woolery seemed impatient when he cornered a lawmaker inside an elevator at the Kentucky Capitol. It was his first shot at bending an ear as legislators hustled to their morning meetings. -
EPA, Opponents Submit Final Arguments in Clean Power Plan Case
Mar 10, 2015 | E&E - Greenwire
By Jeremy P. Jacobs
U.S. EPA yesterday made its final bid to federal judges to quash an early challenge to its proposed greenhouse gas standards for coal-fired power plants. -
EPA Extends Comment Period On nPB Air Toxics Listing
Mar 10, 2015 | InsideEPA
EPA is extending by 60 days -- until May 7 -- the deadline for groups to comment on a petition that halogenated solvents producers filed with the agency asking it to list the chemical n-propyl bromide (nPB) as a Clean Air Act air toxic, saying the extension will ensure the public has “sufficient time” to review the listing request. -
Advocates Raise Doubts Over SO2 Data Underpinning Major EPA Air Rules
Mar 10, 2015 | InsideEPA
By Stuart Parker
Environmentalists are pursuing an Information Quality Act (IQA) challenge to EPA data on sulfur dioxide (SO2) emissions that underpins parts of several major air rules including its Cross-State Air Pollution Rule (CSAPR) and utility air toxics regulation, warning that recent agency statements might undermine data in those policies. -
EPA in Settlement Talks with Enviros Over Toxic Emissions from Oil and Gas
Mar 10, 2015 | E&E - Energywire
By Ellen M. Gilmer
U.S. EPA and a coalition of environmental and citizens groups are negotiating a potential settlement in litigation over toxic emissions from the oil and gas industry. -
On Natural Resources, GOP Congress Must Focus on Fair Returns for Taxpayers
Mar 10, 2015 | The Hill - Congress Blog
By former Montana State Rep. Jesse O'Hara (R)
The Republican takeover of Congress is expected to herald new efforts to support domestic fossil fuel production. -
Sen. Baldwin, Rep. Kind Urge Obama to Issue Crude-Oil Train Standards
Mar 10, 2015 | Progressive Railroading
U.S. Senator Tammy Baldwin (D-Wis.) and U.S. Rep. Ron Kind (D-Wis.) have asked President Barack Obama to take immediate action on a final set of safety rules for crude-oil trains. -
Wis. lawmakers Pressure White House to Finish Delayed Crude-By-Rail Rules
Mar 10, 2015 | E&E - Energywire
By Blake Sobczak
Two Wisconsin lawmakers are renewing calls for the Obama administration to act on crude-by-rail safety following a string of oil train derailments and fires in recent weeks.
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Senate Launches Chemical Reform Push
Mar 10, 2015 | The Hill
By Lydia Wheeler
Sens. Tom Udall (D-N.M.) and David Vitter (R-La.) are introducing legislation to overhaul the nation's chemical laws, which are widely viewed as broken.
Democrats, led by the late Sen. Frank Lautenberg (N.J.), have long sought reforms to the Toxic Chemicals Control Act (TSCA) of 1976, though the effort has repeatedly stalled in previous years.
Unveiled Tuesday, the Frank R. Lautenberg Chemical Safety for the 21st Century Act forces the Environmental Protection Agency to base chemical safety decisions solely on considerations of risk to public health and the environment and eliminates TSCA's "least burdensome" requirement for regulating a chemical, which prevented the EPA from banning asbestos.
Democrats and Republicans have agreed in past sessions on the importance of reforming the nation’s outdated chemical laws, but, in the past, the consensus has stopped there.
The Udall-Vitter bill, which has been nearly two years in the making, also mandates the EPA conduct safety reviews of new and existing chemicals.
Republicans have previously pushed for reforms that would require the EPA to evaluate the risk a chemical poses based on the nature and magnitude of the risk, impact on potentially exposed subpopulations, whether harm has already occurred, and the probability that harm will occur.The bill has 13 co-sponsors in addition to Udall and Vitter, including seven Democrats and six Republicans.
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Udall, Vitter Offer Up TSCA Compromise
Mar 10, 2015 | PoliticoPro - Whiteboard
By Darren Goode
Sens. Tom Udall and David Vitter today introduced their compromise on updating the 1976 Toxic Substances Control Act, with seven Democrats and seven Republicans as cosponsors.
Vitter told reporters that the list of original cosponsors is “a very strong statement in terms of our ability to move forward and pass this legislation,” he said, adding that he is “very confident” the bill could get more than 60 Senate votes and majority support in the House.
Udall called it a “good solid bipartisan bill” that involved input from EPA, trial lawyers, chemical companies and public health and environmental groups.
Among the cosponsors are Environment and Public Works Chairman Jim Inhofe, panel Democrat Tom Carper, and one member of Senate Democratic leadership, Debbie Stabenow. Other Democratic cosponsors include Chris Coons, Joe Manchin, Joe Donnelly, Martin Heinrich and Heidi Heitkamp. Republican cosponsors are Roy Blunt, John Boozman, Mike Crapo, Shelley Moore Capito, John Hoeven and Bill Cassidy.
The bill will be showcased at a March 18 TSCA hearing in Inhofe’s panel.
Environment and Public Works ranking member Barbara Boxer remains a sharp critic, saying the bill would still go too far in preempting toxics laws in California and other states.
Both Vitter and Udall said their bill has “the right balance” on preemption. “Look, Senator Boxer quite frankly has always been an outlier on this bill and this issue,” Vitter said. -
EPA Considering Rare Ban Under TSCA For Paint-Stripping Chemical
Mar 10, 2015 | InsideEPA
By Maria Hegstad
EPA's toxics managers are mulling the possibility of initiating a rare ban of the paint-stripping solvent methylene chloride, indicating a continued focus on regulating "existing" chemicals on the heels of the agency's plans to explore similar restrictions on the common degreasing solvent trichloroethylene (TCE).
The agency has not proposed a ban on an existing industrial chemical under its Toxic Substances Control Act (TSCA) Section 6 authority since its effort to ban asbestos using that authority was rebuffed by the U.S. Court of Appeals for the 5th Circuit in 1991. The court ruled that EPA had not met its burden of proof to establish the chemical's risks could not be reduced by any other means. Environmentalists and other critics of TSCA cite the case, Corrosion Proof Fittings v. EPA, as the ultimate proof of TSCA's weakness.
As legislative efforts to reform TSCA have dragged on for years, the Obama EPA announced that it intended to more rigorously pursue its TSCA regulatory authorities. In 2012, EPA announced that staff had prioritized some 83 chemicals for risk assessment of various consumer uses. If human or environmental risks were found in the assessments, these would be regulated, officials said.
In a speech here March 3 at the GlobalChem conference, EPA's Wendy Cleland-Hamnett, director of EPA's Office of Pollution Prevention and Toxics, announced that following the program's risk assessments "we are looking at using [TSCA] section 6, both for TCE and for methylene chloride in the coatings remover use. That will be a big focus of ours for the coming year."
EPA last November began exploring a section 6 ban for TCE, despite objections from the chemical sector which claims that EPA is overstating the health risks of the chemical.
EPA published its risk assessment of methylene chloride, also known as dichloromethane (DCM), last August. Agency assessors concluded that the chemical's use as a paint stripper posed health risks to workers and consumers, as well as to bystanders. The agency estimated that more than 230,000 workers nationally are exposed to DCM products, an Aug. 28 press release said.
"Our review indicates that the use of DCM in paint strippers pose[s] risks to human health, so EPA is beginning an effort to determine options for addressing the concern," Jim Jones, EPA's toxics chief, said in the statement.
The statement added that "EPA is beginning an effort to determine options for addressing the concern" but did not indicate that the agency would consider a ban.
Risk Assessment
An industry source notes that the TCE risk assessment was the first conducted in the TSCA work plan program, and DCM the second, with EPA indicating consideration of Section 6 action on both chemicals. "I think it's illustrative of the action EPA will try to take," the source says. "Since TSCA hasn't been changed" since the 1991 ruling, "I don't know what has changed to make them think they could do that," the source says.
A source with the Halogenated Solvents Industry Alliance (HSIA), which represents makers of DCM, says the group and three of its DCM formulators met with Cleland-Hamnett and agency staff last December. The formulators told agency staff that "there really is no other product on the market that is effective in paint stripping like [DCM]. We also discussed with them that we had met with the [Consumer Product Safety Commission (CPSC)] to voluntarily discuss changing the labels on methylene chloride paint strippers to address both acute and chronic hazards," the source says.
During another discussion last week, agency staff asked HSIA to "think of other ways we may be able to address risks," the source adds.
HSIA in 2013 comments submitted on EPA's draft assessment of DCM reminds agency staff of the hurdles endemic to undertaking a TSCA Section 6 ban, and also points to regulatory measures EPA and other agencies have already placed on DCM, arguing these obviate the need for further restrictions.
"EPA may regulate a substance under TSCA Section 6 only when 'there is a reasonable basis to conclude' that the substance presents 'an unreasonable risk of injury to health.' Thus, regulation under TSCA Section 6 must be preceded by a determination that there is an actual risk to health and that the benefits of regulation outweigh the costs. . . . A review of the evidence demonstrates that neither standard is met in the case of DCM and paint stripping," HSIA's 2013 comments state.
Further, the comments note that EPA initiated a "priority review of risks of human cancer from exposure to DCM" in 1985, using its TSCA Section 4(f) authority, which HSIA argues resulted in a number of regulations that adequately control DCM exposures. HSIA points to the National Emission Standards for Organic Hazardous Air Pollutants EPA crafted for paint stripping activities using its Clean Air Act authority. The Occupational Safety and Health Administration (OSHA) also issued workplace rules after EPA's 1985 priority review, lowering the workplace exposure limit from 500 parts per million (ppm) to 25 ppm in 1997. Similarly, HSIA writes that the CPSC in 1987 required labels for consumer products containing DCM.
Further, TSCA Section 9 requires EPA to confer with other agencies before pursuing a Section 6 ban, and HSIA suggested that EPA must confer with OSHA and the CPSC before undertaking such action.
Work Plans
Meanwhile, Cleland-Hamnett indicated that EPA will be releasing more of the TSCA work plan risk assessments in the coming months. "The final assessment on [n-methylpyrrolidone] I think will be coming out in the next few weeks," she told GlobalChem attendees. "For 1,4-dioxane and 1-bromopropane you can expect to see documents coming out in the next month or so for public comment. Medium and long chain chlorinated paraffins, it will be a little longer till you see a document published on those. . . . We also have these clusters of flame retardants, probably see those later this spring."
Cleland-Hamnett also acknowledged the surge in the office's release of significant new use rules (SNURs) on existing chemicals -- some of them assessed through the workplan chemicals program -- in recent months. "[I]t has proven to be a very useful tool for us in the existing chemicals area as well as the new chemicals area," she said. "A SNUR allows us . . . not to close the door, but allows us to take a look if someone wants to start those uses up again . . . It can also be useful in the context of leveling the playing field between domestic manufacturers who have chosen to get out of a particular chemical or use and others overseas who may not have chosen not to," she said.
A SNUR is one of the few restrictions EPA can place on existing chemicals, those on the market before TSCA took effect in 1976. It allows EPA to require companies intending to re-start use of chemicals with such restrictions to inform EPA of their intent before doing so, in order to allow EPA to review the use. Industry concern with some of the SNURs the agency has more recently proposed comes from EPA's unusual decision to revoke the usual exemption from the SNUR for chemicals within a product.
"I know that lifting the articles exemption in some of the SNURs has been a controversial topic, but the idea really is number one to protect health and the environment whether the product being manufactured is made in the U.S. or imported and also this issue of leveling the playing field," Cleland-Hamnett said. "So we will continuing to look at uses of SNUR in the existing chemicals realm, where is appropriate. One of the tools we will be using in some instances, along with Section 6."
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Washington State Flame Retardants Bill Passes the House
Mar 10, 2015 | Chemical Watch
Washington state's House of Representatives has passed with a massive majority, a bill that would ban five flame retardants in furniture and children's products.
Bill HB1174, the Toxic-Free Kids and Families Act, also gives the state's Department of Ecology the power to ban replacement flame retardants if safer alternatives are available.
Among the chemicals in the spotlight are tris(1,3-dichloro-2-propyl) phosphate (TDCPP) and tris(2-chloroethyl) phosphate (TCEP).
Sponsored by Representatives Kevin Van De Wege (Democrat-Sequim) and David Taylor (Republican-Moxee), the bill was approved with a vote of 95-3, and has now been sent to the Senate for consideration.
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US Chemical Safety Board in Turmoil
Mar 10, 2015 | Chemistry World
By Rebecca Trager
The US Chemical Safety Board (CSB), an independent federal agency charged with investigating serious chemical accidents, is being accused of punishing whistleblowers and appears to have widespread employee dissatisfaction. Amid these developments, the embattled chairman of the board, Rafael Moure-Eraso, is under pressure to resign.
Management issues at the CSB were scrutinised during a House Oversight and Government Reform Committee hearing on 4 March, and the committee’s chairman, Republican Jason Chaffetz, joined with fellow lawmakers in calling on Moure-Eraso to step down.
In February, the Environmental Protection Agency’s Inspector General found that Moure-Eraso and two other senior CSB officials violated the Federal Records Act by using their private email accounts to conduct official board business in an apparent attempt to evade other CSB employees.
At the hearing, Chaffetz stated that the CSB ‘has suffered from a chequered history with regard to leadership’. He said his committee held a hearing about CSB whistleblower reprisals and mismanagement in June 2014, and nine months later things have not improved.Obama moves on
Meanwhile, on 3 March President Obama nominated Vanessa Allen Sutherland – the current chief counsel for the US Department of Transportation’s Pipeline and Hazardous Materials Safety Administration – to be CSB’s new chairperson. At the hearing, Democratic Representative Elijah Cummings asked Moure-Eraso, who has approximately four months left in his term, why he hasn’t resigned after appearing to have lost the President’s confidence.
Also of concern are the results of a recent survey showing that CSB employee satisfaction is at an all-time low. Specifically, only 26% of the CSB employees recently surveyed rated their senior leadership as satisfactory, and the board ranked last of all federal agencies in terms of overall employee satisfaction in 2014.
Cummings agreed that CSB’s management problems seem to have worsened. He cited new results from an external survey showing that 80% of CSB employees feel ‘much frustration’ with the board’s top leadership, and that 47% of employees have a perception of a climate at CSB in which senior leadership discourages dissenting opinions.
In addition, members of the House committee said CSB management appears to punish dissenters and discourage employees from bringing their concerns to Congress. They said an employee of the board was quickly removed from his position and demoted after overseeing that outside review because senior leadership was unhappy about the report’s negative findings.
Moure-Eraso himself testified at the 4 March hearing, acknowledging that many lawmakers have been critical of his CSB chairmanship. But he said his personal email usage was innocent and due to ignorance about the rules. He also noted that the number of CSB’s open investigations, which was at an all-time high of 22 in June 2010 when he took office, is now down to six. In fact, he said, five of those remaining cases are on track to be completed by the end of the fiscal year, including reviews of last year’s deadly explosion at the West Fertilizer plant in Texas.‘Confused and ambiguous’
Among the CSB members who testified at the hearing, there was some support for Moure-Eraso and some opposition. Board member Manuel Ehrlich stated that two CSB staff members intentionally doctored the external report, removing examples of progress being made by the board and adding negative comments about senior management. Ehrlich said CSB’s problems have largely been due to the ‘confused and ambiguous lines of authority’ between the chairman, board members and other staff.
But CSB members Rick Engler and Mark Griffon expressed concern about an order suddenly approved in January that appears to have reduced checks on the CSB chairman’s power. They testified that the measure, which was passed by a 2-1 vote, consolidated power in the CSB chair and eliminated, for example, the role of other board members in deciding budgets and major use of funds, key contracts, and approving appointment of department heads.
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GOP’s ‘Just Say No’ Climate Strategy Stirs Doubts for EPA
Mar 10, 2015 | PoliticoPro
By Erica Martinson
Supporters of President Barack Obama’s climate regulations are getting worried EPA may have few tools to use if states decide to follow conservatives’ advice and refuse to cooperate with the agency on climate change regulations.
Questions abound about how the agency would impose its own climate plans on behalf of states or make sure the states that do submit plans actually stick to them.
Also up in the air: whether the agency has the right to hit the violators with penalties that could even include the loss of federal highway dollars — one of the main fiscal weapons Washington has used to get states to toe the line on everything from motorcycle helmet laws to underage drinking.
But the agency is declining to say whether highway dollars would actually be at risk. And conservatives like Senate Majority Leader Mitch McConnell call their “just say no” strategy the surest way for states to create momentum to block or undo Obama’s climate initiative — a strategy that mirrors the GOP’s state-by-state efforts to undermine Obamacare’s health care exchanges.
The growing squeeze comes as EPA is months away from finishing rules that would require states to cut the carbon dioxide output of their power plants. As with the Obamacare exchanges, any state that fails to submit an adequate plan for cutting pollution will have to live with a federal anti-pollution plan crafted by EPA. And EPA’s requirements would probably be much more expensive and onerous than any plan a state would create for itself, many analysts say, even if the feds don’t impose additional penalties.
Refusing to write your own plan “just means somebody else is driving your car,” said Susan Tierney, senior adviser at Analysis Group who supports EPA’s rulemaking. States can probably produce a “much more compelling and lower-cost option,” she added.
One key issue is the difference between what EPA could enforce on its own through a federal plan versus what the states could do themselves. States that are game have various options, including increasing their reliance on lower-pollution sources like natural gas, ramping up renewable energy and pushing energy-efficiency programs that reduce consumers’ power demand. Such programs have been the route taken by East Coast states participating in the Regional Greenhouse Gas Initiative with little drama.
But EPA can’t control the state legislatures, transmission organizations, utility commissions and other entities that would make those measures possible. That means a federally created anti-pollution plan would probably focus directly on requiring greenhouse gas cuts from individual power plants, which would probably be much more expensive.
And that could hurt EPA’s ability to roll out the climate policy, according to agency supporters like William Becker, the executive director of the National Association of Clean Air Agencies, the trade association for state and local air regulators.
The “naysayers,” he said, who are “painting such a bleak picture and trying to constrain the flexibilities that EPA is offering to the states are going to have just a chilling effect on the ability of agencies to implement this program in the way that the public expects states to do.”
Others go even further, arguing that EPA has a mandatory duty under the Clean Air Act to hold back millions of dollars in highway funds and to impose strict limits on industrial construction permits in states that refuse to comply.
A July white paper by lawyers from the D.C. firm Wilkinson Barker Knauer also argues that states could lose highway money or face onerous construction restrictions if they don’t comply.
Don’t fall for those scare tactics, say EPA’s adversaries, who argue it’s far riskier for states to play along with the agency. Instead, they say, refusing to submit plans would save states time and money, increase opponents’ leverage in Congress and leave time for court challenges that could eliminate the climate regulations altogether.
“Think twice before submitting a state plan — which could lock you in to federal enforcement and expose you to lawsuits,” McConnell said in an op-ed last week that stoked the debate. “Refusing to go along at this time with such an extreme proposed regulation would give the courts time to figure out if it is even legal, and it would give Congress more time to fight back.”
The New York Times editorial board denounced McConnell’s efforts as “reckless” Monday. “Mr. McConnell’s call to governors to sit on their hands is a travesty of responsible leadership,” the board wrote. It added that “governors who follow his advice may not get the result they want, since, under time-honored environmental law, noncompliant states could face imposition of a blanket federal alternative that is not tailored to local conditions.”
But Hal Quinn, CEO of the National Mining Association, argued that the Clean Air Act allows states to decide whether to submit a compliance plan.
“Suggestions that Leader McConnell’s op-ed is asking states to do something illegal is wrong,” he said. And besides, Quinn said, submitting a state compliance plan is “building a Trojan Horse for EPA to come in … if you stumble or fall in meeting those targets.”
McConnell’s argument has its roots in an argument made in a Federalist Society paper published in November, which asked: “What if states just said no?”
“The notion that EPA could impose sanctions if States fail to submit the plan EPA demands can be dismissed quickly: EPA does not have that authority,” said the paper, written by three attorneys from the firm Troutman Sanders.
Serious players strongly disagree about whether EPA could impose either mandatory or voluntary sanctions under the section of the Clean Air Act it’s using to write the power plant rules. And the agency itself isn’t doing much to clear up the question.
EPA Administrator Gina McCarthy gave only an indirect answer last week after Senate Environment and Public Works Chairman Jim Inhofe asked her how the agency would handle states that drag their feet. “Would the EPA consider withholding federal highway funding?” the Oklahoma Republican asked. “Or would you say no?”
“This is not a traditional [State Implementation Plan] under the National Ambient Air Quality Standards,” McCarthy responded. “There’s other processes for us to work with states. Clearly our hope is that states will provide the necessary plans. If not, there will be a federal system in place to allow us to move forward.”
EPA is writing its climate regulations under the Clean Air Act’s Section 111, which requires the agency to establish a procedure for reviewing compliance plans that’s “similar” to the procedure outlined by Section 110, which governs some other pollution rules. But it’s not clear whether the agency’s full enforcement authority applies.
The proposed rule does not directly address the issue, though it says the 111(d) state implementation plans will be different from the air quality standard plans “in several respects, reflecting the significant differences between CAA sections 110 and 111.”
The debate is part of a host of uncertainties about the exact impact of EPA’s upcoming regulations, which will provide the states with carbon-reduction goals but allow them a wide berth of flexibility in how to get there. But the intersection of politics and policy has proved to be a rough road.
One state that’s indicative of that conflict is McConnell’s own home state of Kentucky, where the administration of Democratic Gov. Steve Beshear has been working closely with EPA on crafting a plan to comply with the climate rule.
While the state’s Energy and Environment Cabinet “appreciates Sen. McConnell’s comments and concerns,” it doesn’t agree, said spokesman Dick Brown.
“The overwhelming majority of our stakeholders are telling us to make preparations to submit a plan,” Brown said. “Failing to follow through with creation of that plan means Kentucky would most likely have to abide by a Federal Implementation Plan that would cause harm to Kentucky’s economic future and burden the next administration with challenges not of its making.”
In the end, the question of mandatory penalties is likely to be hashed out front of federal appellate judges.
Meanwhile, McCarthy said her agency will stay on track.
“My only comment would be that EPA has been working with the states well before we put pen to paper on this rule,” she said after last week’s hearing. “That will not stop. And we continue to have tremendous dialogue with the states — including the state of Kentucky.”
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Debate Grows Louder Over States Saying 'No' to Clean Power Plan
Mar 10, 2015 | E&E - Greenwire
By Jean Chemnick
Foes of U.S. EPA's Clean Power Plan are weighing the legal and political pros and cons of a "just say no" approach to the draft rule aimed at curbing heat-trapping greenhouse gases from power plants.
Senate Majority Leader Mitch McConnell last week urged states to not prepare plans for implementing the rule. Cooperating with the Obama administration, he said, would undercut legal and legislative efforts to kill the rule and allow EPA to impose a rule that exceeds its legal authority (Greenwire, March 4).
The Kentucky Republican's call amplified an idea that had been circulating for months among industry representatives and policymakers, who say states have much to gain and little to lose by refusing to comply with the EPA rule.
In an article published by the Federalist Society last November, authors Peter Glaser, Carroll McGuffey and Hahnah Williams Gaines wrote that the Clean Power Plan seeks to enlist states to do what EPA cannot -- write rules that pressure U.S. coal-fired power producers at the expense of ratepayers and grid reliability. The result, they argue: State officials, not EPA, will be blamed for price spikes and grid woes.
And some state leaders have suggested they won't cooperate, including 15 governors whoasked EPA last September about what would happen if they didn't turn in plans.
"You have states that feel like they don't want to be the public front for this," Glaser, a partner at Troutman Sanders LLP, said in an interview. "So they're better off either not submitting a plan or submitting a plan that they think is reasonable, although it may not be in compliance with EPA's requirements."
E&E's Power Plan Hub keeps you up to date on the latest national and state-level developments on EPA's greenhouse gas regulations for the power sector. Go to E&E's Power Plan Hub.
If EPA responds by enforcing a federal implementation plan (FIP), as it has promised to do, "then so be it," Glaser said.
A federal plan is likely to be very similar to the kind of state plan that EPA would approve anyway, he said, and might ultimately be less restrictive because EPA has fewer tools than states do for regulating the power grid.
EPA cannot order a state to enact a renewable energy standard or demand-side efficiency law, or set up one of its own as part of a FIP, Glaser and his co-authors contend.
If EPA aims for the kinds of emissions reductions in its federal model plan that it contemplates in its draft, the agency has little choice but to issue a "hard limit" on the operation of coal-fired power plants, whether or not alternatives are available to provide backup power. Such a plan could fly in the face of EPA's pledge that its rule would not compromise grid reliability, they wrote.
"Given the stakes involved, it is hard to imagine that EPA would want to take this action," they wrote.
If states craft strategies to meet EPA's targets, any policy they put forward -- renewable or energy efficiency mandates, carbon trading systems -- will become federally enforceable as soon as EPA approves the plans, the article says. Not only would a state then have to seek EPA permission to modify or repeal its own energy policies, the lawyers wrote, but it will have armed third parties and environmental litigants with new legal grounds to sue for their enforcement.High stakes for coal
No industry has more to lose under the Clean Power Plan than coal, which is nearly unanimous in its support for the "just say no" strategy. The Kentucky Coal Association has touted that approach to state policymakers (Greenwire, March 4).
And National Mining Association CEO Hal Quinn said in an interview last week he wasn't concerned that the federal implementation proposal EPA plans to unveil this summer will be worse for his industry than plans coal-friendly state governments could have crafted on their own.
For one thing, Quinn, like Glaser, expressed confidence that the EPA rule would ultimately be overturned in court, making compliance a moot point. And the two also agree that EPA can't step in with renewable energy and efficiency mandates for states.
But Quinn went a step beyond the Federalist Society analysis, asserting EPA also lacks authority to require coal plants to run less to lower emissions.
"The question is, what would EPA be able to really do?" he said. "And at best they'd probably be stuck with implementing one or maybe two building blocks of the four."
The EPA draft uses four emissions-reduction categories -- "building blocks" -- to set state targets, although it does not demand that states use them in their implementation plans. Coal advocates have long held that EPA is only on firm legal ground if it mandates incremental heat-rate improvements at coal-fired power plants -- an "inside-the-fence-line" approach EPA designates as the draft's first building block.
If EPA is forced to implement one or two building blocks, the rule would be orders of magnitude less stringent than the current proposal. The Clean Power Plan assumes that coal-fired power plants can cut their carbon dioxide emissions by 6 percent through such improvements, though numerous commenters have said there is only potential for, at most, a 2 percent improvement at most plants.
The bulk of the rule's reductions are assumed to come from its three other building blocks; fuel switching to natural gas, zero-carbon energy and demand-side efficiency. If the agency can't require reductions in those areas, Quinn said, it must also scale back the rule's target to a level achievable with whatever is left.
All of this, Quinn said, shows McConnell was right in advising state officials.
"I think what Leader McConnell laid out the other day in his op-ed is showing that this thing is a whole house of cards, and that the issue of 'What can EPA do if a state doesn't submit a plan?' is really the other side of the same coin," he said.
Rather than compelling states to take the Clean Power Plan more seriously, the threat of a federal plan might instead show how limited EPA's regulatory authority actually is, leading to a less stringent rule, he said.Call for 'market-based' regs
But "just say no" is by no means the consensus, even among conservatives.
Jerry Taylor of the libertarian Niskanen Center decried the strategy as a misguided rhetorical exercise that would lead to more repressive regulation.
"God put conservatives on Earth to minimize regulatory costs, not to inflate them in futile attempts at making a point," Taylor said in a post Friday on the Niskanen Center's website.
Taylor argues states should take the flexibility EPA has embedded in its existing power plant rule and run with it -- enacting "market-oriented regulations" that would be less restrictive than the command-and-control models EPA would be likely to employ.
Like the Federalist Society's paper, Loyola Law School professor Daniel Selmi also panned the idea in an essay for the Sabin Center for Climate Change Law at Columbia Law School.
"The 'just say no' slogan is pithy, and as an immediate political response, states may be tempted to follow its advice by taking legislative or executive action that prevents or hinders the state from responding to the upcoming rules," he wrote. "Before taking that step, however, states should carefully consider the consequences. If they do so objectively, it becomes apparent that opting out of the process at this point can result in significant disadvantages."
Like the Federalist Society essay, Selmi says EPA could opt to require the power plants themselves to meet the full state targets.
But unlike Glaser and his co-authors, Selmi does not assume that EPA would shy away from this outcome. The agency could pursue "severe" emissions cuts in line with what the draft requires -- which average 30 percent below 2005 levels by 2030 -- and apply them directly to power plants.
Such a FIP would be subject to legal challenge, he acknowledges. "Still, the state's inaction could very well result in EPA imposing the legal mandate entirely on the power plants, and they are certain to be quite disturbed by that outcome," he said.
Power-sector lawyers for Van Ness Feldman LLP echoed this concern in an articlepublished last month in Public Utilities Fortnightly, which urges utilities to get involved in state implementation plan processes even if they are also backing litigation to change or kill the rule.
"It seemed to us for utilities this 'just say no' strategy carries a good bit of risk," said Kyle Danish, a partner with Van Ness Feldman and one of the article's authors. In an interview yesterday he noted that proponents of the strategy assume that industry's legal case will prevail, resulting in a rule that is considerably narrower in scope. But that outcome will not be known for years.
"It seems to make sense to us that with so much at stake, utilities have an interest in working to ensure that they have a rational plan that they can live with, so that they're covered regardless of the legal outcomes, and they're not left effectively bearing the full brunt of any downside risk," he said.
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Consumers Trapped in the Middle of Big Coal's Fight for Survival
Mar 10, 2015 | E&E - Energywire
By Joel Kirkland
Chris Woolery seemed impatient when he cornered a lawmaker inside an elevator at the Kentucky Capitol. It was his first shot at bending an ear as legislators hustled to their morning meetings.
"I've helped folks with $1,400 electric bills, and we've cut their bills in half," Woolery said, twisting his tall frame inside the packed shoebox to get closer to the state representative from Lexington.
Electricity rates are going up here, and the rising energy costs have grabbed the attention of grass-roots organizers like Woolery in a state where 93 percent of power generation comes from burning coal.
Woolery, a soft-spoken 43-year-old efficiency contractor and former builder, let his stories land softly as he folded a message about energy savings inside a more palatable pitch for legislation to spur job creation in rural Kentucky.
"We go in and finance it on their electric bills," Woolery explained. "Now they're paying for upgrades instead of kilowatt-hours. That creates economic development if we can get it to scale."
The doors chimed open. "It's exciting and a blessing to help people," he told the legislator.
Through the Mountain Association for Community Economic Development, or MACED, Woolery helps run a small program that partners with rural electric cooperatives to finance energy efficiency retrofits for poor and moderate-income people. MACED, based in the small college town of Berea, aims to stimulate economic growth in ways that support sustainable energy development.
E&E's Power Plan Hub keeps you up to date on the latest national and state-level developments on EPA's greenhouse gas regulations for the power sector. Go to E&E's Power Plan Hub.
The virtue of a coal-based economy is still gospel in Frankfort. But organizers here say efforts to wall off the state's coal-dependent utilities from competing sources such as natural gas and distributed solar power are leading to higher costs for Kentucky's poorest communities.
In homes across rural Kentucky, air poured in through poorly sealed ducts this winter, driving up utility bills during peak hours.
"The leakage rate is close to the square-footage of the house," Woolery said, explaining how a large Georgian-style house in northern Kentucky could amass a $1,400 electric-heating bill during the 2014 polar vortex, his most extreme example of inefficient housing.
Woolery grew up visiting his grandparents in eastern Kentucky's coal country, which for decades has been a focus of anti-poverty campaigns aimed at improving conditions in rural Appalachia.
Financing energy-saving upgrades for homes built during the coal booms of last century is a challenge in Harlan County company towns like Benham and Lynch, where the coal mines are long gone and work is dried up. That's where Woolery and a new crop of outreach groups are focusing their attention, partnering with local power boards and cobbling together grant funding to control crippling utility bills for older people still there.
But efforts to scale up energy savings and alternative sources statewide have been consistently hamstrung. Anything that touches on energy is fiercely political in Kentucky and all the more so as the Obama administration presses on with plans to counter climate change.Quelling solar
Woolery and the band of "citizen lobbyists" spent much of the cold day in February finding their way into legislative offices to pitch a renewable and efficiency portfolio standard.
To many it was clear the bill had no chance of reaching the state House and Senate floors, as similar proposals since 2010 had been scuttled long before getting a vote. It would require utilities by 2023 to get 12.5 percent of their power from renewable sources and to offset 10 percent of their retails sales through energy efficiency. The proposal would establish feed-in tariffs to encourage investment in wind, solar, biomass and hydropower projects.
The proposal in Kentucky largely matches North Carolina's renewable energy and efficiency standard put in place in 2007, which according to its boosters has created about 37,000 related jobs. It's a point supporters in Kentucky hope can nudge legislators to act on a "jobs bill" and get in place a modest clean energy standard.
Still, few in Frankfort's increasingly conservative legislative scrum anticipate action on any bill this year that could cut into the business of the state's dominant coal-burning utilities. With the average residential retail electricity rate at about 10 cents per kilowatt-hour in 2014, Kentuckians still pay a lot less than people in Connecticut. But utilities here face the same challenges around flat electricity demand and rising annual costs as everywhere else, and much of that has to do with aging infrastructure.
One proposal shopped around by a Louisville senator and quietly left on the Capitol's cutting-room floor in the past few weeks would lift a 30-kilowatt ceiling on net metering for rooftop solar. The cap makes it tougher for commercial consumers like Wal-Mart or a whiskey distiller to see a payoff to installing solar panels.
Joshua Bills, a program coordinator for the Mountain Association for Community Economic Development, stands outside a small municipal-owned solar farm in Berea, Ky. Photo by Joel Kirkland.
In a series of closed-door meetings in recent months that brought electric utilities and solar interests to the table, Louisville Gas & Electric Co. and rural cooperatives warned that compensating larger-scale solar users for the excess power they feed to the grid would shift infrastructure costs to traditional customers.
That affects poor people, the utilities argued, according to a source in the room. "They don't have to say anything more than that," said the attendee. "There's just a power differential in the room."
Calling Kentucky's 30 kW limit a "significant barrier" to investment, the Kentucky Solar Energy Society in an October 2014 memo to the group proposed raising the cap to 1,000 kW to match other states and pull in commercial and industrial customers. In the national battle over solar, the American Legislative Exchange Council (ALEC), a powerful coalition of state lawmakers and corporate interests, including the Koch brothers and investor-owned utilities, has opposed solar incentives and pushed states to impose fees on utility customers who install rooftop solar.
Kentucky's solar net-metering group met again late last month to chip away at a compromise, but way too late for serious consideration during the short legislative session.Utilites reject 'just say no' crowd
The solar talks were a skirmish. The war is about carbon, climate change and the realities of a rapidly changing energy sector.
Elected officials here are taking a scorched-earth approach to opposing Obama administration policies that affect utilities and nearby coal fields. Kentucky is arguably the epicenter of opposition to U.S. EPA's Clean Power Plan, which would require states to cut carbon dioxide emissions from their power sectors by varying amounts through 2030.
In November, the GOP-dominated state Senate and conservative Democratic majority in the House rode the coattails of U.S. Senate Majority Leader Mitch McConnell's "war on coal"-themed re-election campaign. Fueled by tens of millions of dollars in out-of-state money, the campaign pitted Kentucky's economy against EPA's enforcement of air quality standards and its coming carbon regulations.
The leading Democratic candidate in this year's governor's race, Attorney General Jack Conway, has joined a multi-state lawsuit aiming to stop a final carbon rule. He's tucked in just behind McConnell, a Republican, in promising a protracted legal and political battle.
Under Obama's climate regulations set to be finalized midsummer, states would have the flexibility to tailor their plans for meeting emissions targets. That could include using cleaner gas in place of coal, integrating zero-carbon sources like wind and solar, boosting power plant efficiency or carbon-capture technology, and promoting energy savings. It could also mean joining with other states to come up with a regional plan.
Last week, in an opinion piece in the Lexington Herald-Leader, McConnell called on states, and implicitly leaders in Kentucky, to simply reject the Clean Power Plan and not submit a state plan for compliance with the Clean Air Act.
That flexibility is "illusory" and EPA's legal basis is "flimsy," McConnell wrote, picking up on concerns expressed by state regulators and grid operators about tight compliance deadlines starting in 2020. High-level EPA officials have already signaled the agency is open to changes that would help ensure coal plant closures don't lead to blackouts and other electric reliability issues.
In the op-ed piece, McConnell urged states to "think twice" before submitting a plan. Doing so could "lock you into federal enforcement and expose you to lawsuits."
Increasingly, however, energy advisers around the sitting governor and Kentucky electric utility heads who until now have avoided the political fray are mounting a counteroffensive, pressing the state to get a plan ready to submit in 2016. They warn that Kentucky is better off crafting its own plan and keeping doors open for negotiation with EPA than slamming it shut and forcing the agency to impose a top-down federal compliance plan for the state.
That thrum is getting louder, even as the state Legislature keeps on the books tight constraints on Clean Power Plan compliance.
"I can't put my company at odds with the federal government if it's the law," said Greg Pauley, president and chief operating officer of Kentucky Power, a subsidiary of American Electric Power Company Inc.
Last year, the state Legislature unanimously approved H.B. 388, which effectively bans Gov. Steve Beshear, a centrist Democrat, and future governors from moving forward with any compliance plan that goes beyond what electric utilities can do to beef up efficiency at existing coal plants.
That means no solar, mandates around switching to gas or standards calling on utilities to push for more efficient use of electricity. Further, it provides no policy rationale for the state's Public Service Commission to work up a way to enforce a state plan and to start grappling with tough ratepayer issues around capital upgrades and more aggressive coal-unit retirements.
"H.B. 388 may need to be looked at and re-evaluated as we move forward," Pauley said.
Pauley's company is scheduled to take the 800-megawatt Big Sandy coal unit in eastern Kentucky offline this summer, after a yearslong and ongoing battle with state officials. East Kentucky miners at one time supplied 2.5 million tons of coal a year to the plant. And the business decision to purchase out-of-state power instead of upgrading Big Sandy with expensive scrubbers and asking for a significant rate increase turned into a bloody battle about coal.
"It's a big mistake to take a valuable resource like coal and put it on the shelf," said Rep. Rocky Adkins (D), the House majority leader and a critic of the decision to close Big Sandy, which serves his district.
"The Clean Air Act was implemented over a 30-year period," he added. "It gave the technologies time to catch up with the law."Compliance plan at work
The "just say no" campaign now embraced by McConnell and the state Legislature comes from the playbook of Washington's powerful coal lobby. At the top of that heap is the American Coalition for Clean Coal Electricity, which is run by Mike Duncan, a top Republican powerbroker. In Kentucky, Duncan is simply known as the chairman and CEO of the small Inez Deposit Bank in Inez, Ky., a friend of McConnell's and an old-school guardian of coal interests.
Seemingly, the result is a state energy policy set in granite until EPA finalizes a rule.
Yet from inside the 12th-floor offices of a state office tower where Beshear's energy Cabinet sits, officials were chipping away at compliance options last month.
Leonard Peters, secretary of energy and environment under Kentucky Gov. Steve Beshear (D), is urging U.S. EPA to credit the state for planned coal plant closures as part of a state plan to comply with carbon regulations. Photo courtesy of the Kentucky Energy and Environment Cabinet.
"As much as we'd like to say, 'No, let's not talk about a compliance plan', that's where it's heading," Kentucky Energy and Environment Secretary Leonard Peters said in an interview with EnergyWire.
Peters said he wants the bulk of a compliance plan drawn up before Beshear leaves office in December.
"The one thing that we have repeatedly heard from the utilities is that we don't want a federal implementation plan," he said. "Our utilities would be, it's fair to say, very disappointed if we didn't put in a plan."
Under the Clean Power Plan, Kentucky would have to cut its power-sector carbon emissions rate 18.3 percent between 2012 and 2030. In part because the state is so reliant on coal to keep the lights on, EPA's reductions target for Kentucky is among the lowest in the 13-state regional grid operated by PJM Interconnection, which serves 61 million people across the Mid-Atlantic region and Midwest.
Here state officials are in a multijurisdictional jumble. Kentucky's served by regional grid coordinators PJM and the Midcontinent Independent System Operator. Some of the western part of the state is powered by the Tennessee Valley Authority. The state is also served by subsidiaries of three of the nation's largest investor-owned utilities: Louisville Gas & Electric Co. and Kentucky Utilities Co., jointly owned by PPL Corp.; AEP's Kentucky Power; and Duke Energy Corp.
Sixteen small electric distribution co-ops get power from the East Kentucky Power Cooperative.
This state long has burned cheap Appalachia coal and emitted smokestack toxins and carbon for free. That kept electricity prices low here. But coal's no longer dirt-cheap, gas is the fuel of choice for new plants, and technology is driving down the cost of renewable power.
"PJM and MISO dispatch their electricity on a lowest-cost basis," Peters said. "Under a new carbon rule, are they going to change that so they're factoring emissions of CO2 into that decision? I find it difficult to imagine they aren't going to have to do something along those lines."
Within PJM, a "price on carbon" means dispatching a lot more electric power from combined-cycle natural gas plants across the region. Under a different method of calling on power generators, the cut-rate cost of using old coal units built in the 1960s and 1970s would no longer be the only factor in dispatching power in Kentucky or across the big grid, particularly as carbon limits ratchet up after 2020.
Power produced today by Kentucky coal units scheduled to shut down before 2020 could be offset by other resources within PJM, according to a recent PJM study on regional Clean Power Plan compliance. Regional coordination as coal units come offline in Kentucky and Ohio would hold down wholesale power prices, PJM analysts said, as state regulators wrestle with integrating capital costs for building cleaner generation into retail rates.
Kentucky uses more coal than other coal-heavy states and at a higher cost through 2020, with still little gas generation, renewables, efficiency or nuclear power getting to homes and businesses. In PJM's portion of Kentucky, combined-cycle gas plants aren't running yet, and there's barely any renewable energy and efficiency standards at work at the start of compliance.
By 2025, one PJM scenario assumes Kentucky has just enough renewable power and efficiency in place to keep the state's energy price increases low. Under faster changes, coal-unit retirements would pick up steam from 2020 to 2030, as gas generation grows by between 39 percent and 137 percent, pushing up electricity prices as gas prices rise.
According to multiple analyses, Kentucky can easily hit EPA's carbon target if the agency credits the state and its power generators for coal units in line to retire or being upgraded to comply with new federal mercury and air toxics standards. Cleaner gas-fired units are slowly replacing old coal units.
Peters' team is pressing that point, and he's signaling that a Kentucky compliance plan would rely on credit for planned closures. Besides Big Sandy in the east, two coal units are closing at TVA's massive Paradise coal plant in western Kentucky to make way for gas. LG&E's Mill Creek coal-fired power station is completing about $1 billion in environmental upgrades. The utility's 60-year-old Cane Run coal station in Louisville is adding a new gas unit.'Citizen lobbyists'
Along with Woolery, about 90 people gathered in the Capitol complex room that morning in February to get set for Clean Energy Lobby Day.
Lisa Abbott, an organizing director for environmental advocacy group Kentuckians for the Commonwealth, checked her crumpled list of scheduled meetings and talked with a small group of late arrivals about expectations.
Chris Woolery, an energy efficiency specialist for the Mountain Association for Community Economic Development, conducts a safety test on boilers and heating units at a Kentucky home. Photo courtesy of MACED.
"What you will hear is, 'We're all for it. I'm an all-of-the-above kind of guy, I just don't like mandates,'" Abbott said, parroting the polite declines she hears from legislators. "Unfortunately, the mandate is needed to get utilities to do the right thing. There's no competition for those utilities."
Woolery, dressed in loose blue jeans and a yellow shirt, led with jobs and rising energy costs once inside lawmakers' offices. He referenced New York financial advisory Lazard Ltd.'s bullish predictions about competitive solar power as easily as he explained the importance of heat pumps and solid floors.
"We want to democratize the energy system," he told Rep. Tom McKee (D), a former tobacco farmer from northern Kentucky.
"If we have grid parity in five years and you want solar at your tobacco barn or house, you'll have to contract from a company outside the state," Woolery said.
"Y'all mentioned North Carolina. What did they pass?" McKee asked.
"They created a market," said Tona Barkley, a climate activist from Owenton, Ky.
In 2011, as a member of her local distribution co-op, Barkley started working with its supplier, the East Kentucky Power Cooperative, on how to build more renewable power and efficiency into its portfolio. Progress has been slow. East Kentucky Power operates about 3,000 megawatts of generation that includes three large coal-fired plants and is a large power supplier to the state's beleaguered coal-producing region.
"It's also a process that would reduce carbon emissions for the state," she added. "I don't know how you feel, but I'm very concerned about that."
"So am I," McKee answered. The 18-year House veteran crossed his red boots and listened, under bookshelves lined with political paraphernalia: "Tom McKee: The Jobs Legislator," boasted a campaign sign.
"Everybody's afraid we're going to take something away from coal," McKee said to the people in his office. "Of course coal is still going to be part of the mix."
Later in the day, a Republican state senator put political reality in the state Capitol in blunt terms, after expounding on New Zealand's use of geothermal energy.
"You have to understand that both the House and Senate are basically controlled by what I would call the East Kentucky coal-heavy-supporter leadership," said Sen. Tom Buford of Jessamine County.
"You're up against a rock and a hard wall," Buford said. "They control the flow of legislation."
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EPA, Opponents Submit Final Arguments in Clean Power Plan Case
Mar 10, 2015 | E&E - Greenwire
By Jeremy P. Jacobs
U.S. EPA yesterday made its final bid to federal judges to quash an early challenge to its proposed greenhouse gas standards for coal-fired power plants.
In its final briefs to the U.S. Court of Appeals for the District of Columbia Circuit before the court hears oral arguments on April 16, the agency reiterated its argument that the case brought by Murray Energy Co. is legally flawed for several reasons.
Primarily, the agency contends that the Ohio-based company, the country's largest privately owned coal producer, lacks standing to bring the case, meaning it has not shown how it is directly harmed by a rule that will be finalized this summer.
"Speculation," EPA wrote, "regarding the consequences of one possible future outcome of an ongoing notice-and-comment rule making proceedings is not enough to demonstrate the concrete, particularized, and actual or imminent injury required" for constitutional standing.
Murray, with the backing of several states, is asking the D.C. Circuit to issue an "extraordinary writ" to block EPA from finalizing the rule, a critical component of the president's Clean Power Plan.
EPA's proposal would cut carbon emissions by 30 percent from 2005 levels by 2030, shifting the country from coal-based power to renewables like wind and solar.
Two early challenges to rule were filed and consolidated at the D.C. Circuit -- this one from Murray, and a second from West Virginia and about a dozen mostly coal-producing states.
EPA argued yesterday that there is "no legal basis" for blocking the agency from finalizing the rule, as Murray requests.
The agency, it said, "should not be prevented from completing a rule making intended to address the serious threat of climate change."
EPA is supported in the case by a dozen primarily liberal states and the District of Columbia that support the proposed rule. In their own court filing yesterday, they echoed EPA's arguments.
Murray also filed its final brief in the case. Its primary argument is that the Clean Air Act prohibits EPA from issuing the greenhouse gas rules after EPA in 2011 issued standards for mercury and other hazardous air pollutants emitted from power plants under another section of the Clean Air Act, Section 112.
E&E's Power Plan Hub keeps you up to date on the latest national and state-level developments on EPA's greenhouse gas regulations for the power sector. Go to E&E's Power Plan Hub.
They point to conflicting House and Senate versions of a section of the Clean Air Act that were both signed into law. One version bars EPA from issuing regulations under the section for sources already regulated under the law, while the other bans new rules for pollutantsthat have been previously limited. The challengers contend that the source language prohibits EPA from issuing the greenhouse gas standards for power plants, since those facilities are already covered by the Section 112 regulations.
"By the plain terms of the Clean Air Act, as interpreted by the Supreme Court and by EPA itself," Murray wrote, "this action foreclosed EPA from mandating state-by-state emission standards for these same sources."
EPA contends it deserves deference in interpreting the competing amendments.
Murray also countered that it has standing to bring the lawsuit because the rules would directly influence coal production and use.
"That the rule making is directed at coal is apparent from EPA's own statements," Murray wrote. "[R]eliance on coal as the source of electricity generating capacity is to be reduced."
Previous efforts to block EPA climate regulations before they were finalized failed. A bid to stymie EPA's 2012 proposed greenhouse gas standards for new power plants was quickly dismissed by the D.C. Circuit in Las Brisas Energy Center LLC v. EPA. Further, a federal district court judge last October dismissed a similar challenge to the proposed rule brought by Nebraska, saying the state had "jumped the gun" by filing the case before the rule was finalized (Greenwire, Oct. 8, 2014).
Also yesterday, the D.C. Circuit granted Arkansas' request to intervene in the litigation. Arkansas Attorney General Leslie Rutledge (R) called the proposed standards "heavy handed."
"As attorney general, I will seek to protect Arkansans against an overreaching federal government that is attempting to implement heavy-handed regulations that go beyond the scope of the law," Rutledge said in a statement.
Click here for EPA's brief.
Click here for Murray Energy's brief.
Click here for the brief from trade groups backing Murray.
Click here for the brief from states supporting EPA.
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EPA Extends Comment Period On nPB Air Toxics Listing
Mar 10, 2015 | InsideEPA
EPA is extending by 60 days -- until May 7 -- the deadline for groups to comment on a petition that halogenated solvents producers filed with the agency asking it to list the chemical n-propyl bromide (nPB) as a Clean Air Act air toxic, saying the extension will ensure the public has “sufficient time” to review the listing request.
In a notice slated for publication in the March 11 Federal Register, EPA says that the extension is in response to a request for more time to weigh in on the rule. At press time, that request was not available in the public docket for the petition, on which the agency originally planned to take comment through March 9.
EPA in a Feb. 6 Register notice said that after receiving additional data, it now considers a years-old listing petition from the Halogenated Solvents Industry Alliance (HSIA) to be complete, as well as a separate listing petition filed by New York. Both petitions ask EPA to take the rare step of designating nPB as a substance subject to the air law's toxics control requirements, which would likely trigger new air rules targeting nPB.
Finding the petitions to be complete “means they provide sufficient information to assess the human health impacts on people living in the vicinity of facilities emitting nPB,” the agency says.
A halogenated solvents industry source has previously said there is a justification for listing nPB as a Clean Air Act hazardous air pollutant (HAP) because it is “as least as toxic by any measure as other chemicals on the list.”
The chemical is marketed as a replacement for a number of chemicals produced by HSIA's members, including trichloroethylene, perchloroethylene and methylene chloride -- all substances regulated as HAPs. Companies that market nPB, including Enviro Tech International and Poly Systems USA, have described it as a “cost-effective, environmentally-friendly” alternative to halogenated solvents on their websites.
But HSIA, representing major halogenated solvents producers such as the Dow Chemical Company and Occidental Chemical, wants a HAP listing for their competitors' chemical.
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Advocates Raise Doubts Over SO2 Data Underpinning Major EPA Air Rules
Mar 10, 2015 | InsideEPA
By Stuart Parker
Environmentalists are pursuing an Information Quality Act (IQA) challenge to EPA data on sulfur dioxide (SO2) emissions that underpins parts of several major air rules including its Cross-State Air Pollution Rule (CSAPR) and utility air toxics regulation, warning that recent agency statements might undermine data in those policies.
In a Feb. 23 request for correction under the IQA filed with EPA, the Chesapeake Climate Action Network (CCAN) and Environmental Integrity Project (EIP) say that it is unclear whether the data at issue is accurate and reliable as required under the data law. They warn that the problems they believe exist with the data mean that at least some major air rules might be based on inaccurate data, which in turn could make those standards flawed.
“The accuracy of emissions monitoring data and the soundness of rules like [CSAPR] are central to EIP’s and CCAN’s efforts to enforce emission limits at specific power plants and to ensure that EPA sets standards that meet the requirements of the Clean Air Act,” according to the request for correction, recently posted to the agency's website.
The IQA sets out criteria for the use and peer-review of scientific data in rulemaking actions, and industry groups have recently suggested new legal strategies for trying to win a first-time judicial ruling allowing private plaintiffs standing to challenge agency actions for failing to meet the information law's criteria. Even though the IQA allows for citizen petitions to address claimed violations, judges have also denied attempts to challenge petition responses under the Administrative Procedure Act on the grounds that the challenged agency actions are not “final.”
While industry weighs new legal efforts to pursue IQA challenges to agency rules they say are too strict, EIP and CCAN are raising data quality concerns about an exemption to an EPA emissions regulation.
The groups' concern stems from EPA's recent rulemaking revising parts of its utility maximum achievable control technology (MACT) air toxics rule. In the reconsideration, EPA granted utilities an exemption from SO2 emissions limits -- used as a surrogate for reducing acid gas emissions -- for a four-hour period during startup, and significantly softened requirements for utilities to burn “clean” fuels such as natural gas when starting up.
Environmentalists take issue with EPA's statement on the inability to adequately measure SO2 emissions from power plants during startup and shutdown periods, and using that as the basis for the utility MACT exemption. They say this appears to conflict with prior statements EPA has made in rules regarding data on SO2.
They say that earlier rules, including CSAPR and the acid rain emissions trading program, account for SO2 during startup and shutdown emissions. For example, “In EPA’s longstanding Acid Rain program, measurement and monitoring of emissions of SO2 from power plants -- including SO2 emissions during startup and shutdown -- is instrumental in ensuring that mandated reductions in SO2 are achieved,” the groups say in the request.
Emissions Data
“In numerous publications available on EPA’s website and in rulemaking for [CSAPR] . . . EPA has stated that the SO2 emissions data reported by power plants under the Acid Rain program -- which includes data covering emissions during startup and shutdown -- is complete and accurate,” they add.
Further, EPA has disseminated such SO2 emissions data through its Clean Air Markets program for use in EPA emissions trading programs, which the agency has vouched for as accurate, the groups say. The Clean Air Markets program oversees the agency's emissions cap-and-trade efforts including CSAPR.
EIP and CCAN say in their request for data correction that despite EPA's prior statements on having adequate SO2 data during power plant startups for CSAPR and other rules, in its MACT reconsideration “after adopting SO2 as a surrogate for limiting acid gases from power plants, EPA indicated that plants cannot accurately measure emissions (including emissions of SO2) during startup and shutdown.”
If EPA's statements in the MACT revision rule are correct, “neither the Clean Air Markets data disseminated by EPA nor EPA’s earlier statements regarding the accuracy of monitoring in the Acid Rain program can be accurate or reliable, as required by the Data Quality Act and EPA’s accompanying guidelines,” the groups write.
If EPA's emissions data is not reliable, this would undermine emissions trading programs such as CSAPR, which EPA has fought to protect in protracted litigation. It also means EPA has violated its own Information Quality Guidelines established to implement the IQA, the groups claim. “EIP and CCAN request that EPA immediately resolve the conflict between its dueling positions and clarify how its statements about the accuracy of monitoring during startup and shutdown in the Acid Rain program are accurate and reliable,” the groups write.
Conversely, if the data cited under other programs are indeed accurate, this would appear to support environmentalists' case against EPA's regulatory exemption for periods of startup. CCAN and EIP have filed suit along with Sierra Club in the U.S. Court of Appeals for the District of Columbia Circuit, in Chesapeake Climate Action Network, et al. v. EPA, challenging EPA's reconsidered utility MACT rule.
The three groups in that case argue that EPA's exemption violated a Clean Air Act requirement for emissions standards to apply at all times, and have raised as a concern the apparent inconsistency in EPA's position regarding data quality over SO2 emissions during facility startups and shutdowns.
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EPA in Settlement Talks with Enviros Over Toxic Emissions from Oil and Gas
Mar 10, 2015 | E&E - Energywire
By Ellen M. Gilmer
U.S. EPA and a coalition of environmental and citizens groups are negotiating a potential settlement in litigation over toxic emissions from the oil and gas industry.
Lawyers for EPA and the Environmental Integrity Project (EIP) yesterday asked the U.S. District Court for the District of Columbia to postpone a filing deadline while the two sides discuss settlement options.
EIP, the Natural Resources Defense Council, the Center for Effective Government and seven other groups filed the lawsuit in January, arguing that EPA allowed oil and gas drillers to bypass disclosure requirements in the Emergency Planning and Community Right-to-Know Act. The 1986 law created the Toxics Release Inventory, an annual catalog of chemical emissions from various industrial sites.
Environmentalists petitioned EPA in 2012 to extend the reporting requirements to oil and gas extraction facilities, including well pads, storage tanks and compressor stations. EPA has not responded (EnergyWire, Jan. 8).
"The Toxics Release Inventory requires just one thing: annual reporting to the public," EIP attorney Adam Kron said in a statement when the lawsuit was filed. "This reporting is critical to health, community planning, and informed decision making."
Stakeholders are remaining tight-lipped about any prospective settlement details. EIP declined to discuss the issue, and EPA did not respond to a request for comment. In yesterday's extension request, attorneys for both sides note that talks have been going on for weeks.
"Over the past few weeks, the parties have engaged in settlement discussions," the filingsaid. "Although the parties have worked diligently, they require additional time to continue settlement discussions to determine whether the issues in this case can be resolved without further litigation. Granting this motion will allow the parties the opportunity to devote their efforts toward attempting to achieve settlement rather than litigation."
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On Natural Resources, GOP Congress Must Focus on Fair Returns for Taxpayers
Mar 10, 2015 | The Hill - Congress Blog
By former Montana State Rep. Jesse O'Hara (R)
The Republican takeover of Congress is expected to herald new efforts to support domestic fossil fuel production. The Keystone XL pipeline has been in focus of late, policymakers are discussing new coal and natural gas export terminals, and we can expect an effort to lift the decades-old oil export ban.
But as efforts to facilitate the extraction and transport of domestic natural resources pick up steam, there is more at stake than just production and jobs numbers. Taxpayers, too, have a major stake in the outcome and can benefit significantly from the current energy boom, but only if Congress and the Obama administration take the appropriate steps.
At issue are America’s national public lands, which are a critical part of the nation’s supply of oil, natural gas, minerals, and renewable energy. Taxpayers at the national, state, and local levels benefit from energy development on our public lands through royalty payments and other compensation. However, these policies are outdated.
As our elected officials work to bolster domestic energy production, it remains absolutely critical that they also ensure Americans receive a fair return from increased development. Why should we send American oil abroad as taxpayers are shortchanged?
The heart of the problem is the below-average rates companies pay to drill on national public lands that haven’t been updated in nearly a century. The royalty rate companies currently pay to produce oil and gas on national public lands is 12.5 percent; in other words, for every $100 of oil or gas produced, Americans receive $12.50. For comparison, Texas charges 25 percent and states like North Dakota and New Mexico (some of the top oil and natural gas producing states) charge up to 18.75 percent.
The gap between what the federal government charges and what states charges means a loss of tens millions of dollars for taxpayers, impacting both federal and state budgets which share in the benefits of energy production on national public lands.
Taxpayers are shortchanged in other ways too. For instance, it costs an energy company only $1.50 to rent an acre of public lands for a year. And, unlike with offshore drilling, taxpayers are forced to foot the bills for well inspections and enforcement actions on national public lands.
It’s important to note that returns to taxpayers make up such a small percentage of oil companies’ production costs that their impacts on extraction will be negligible. And, policymakers have many options available to design taxpayer return policies to decrease impacts on producers, such as tying royalty rates to oil prices.
Fluctuating oil prices add new uncertainty to domestic oil production, but do nothing to reduce the importance of exports as a policy or fiscal reform as a necessary companion to it. Our nation’s energy production is an incredible boon. But as we consider exporting oil, natural gas, coal, and other resources, let’s be sure that taxpayers are also benefiting. It’s time for Congress to move us towards better fiscal stewardship of our natural resources and keep America on a path to prosperity.
O'Hara served in the Montana State Legislature from 2007 to 2015.
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Sen. Baldwin, Rep. Kind Urge Obama to Issue Crude-Oil Train Standards
Mar 10, 2015 | Progressive Railroading
U.S. Senator Tammy Baldwin (D-Wis.) and U.S. Rep. Ron Kind (D-Wis.) have asked President Barack Obama to take immediate action on a final set of safety rules for crude-oil trains.
Their letter expressed frustration after the Obama administration missed a Jan. 15 deadline to release final rules that would address recent crude-oil train accidents.
"Oil train accidents are increasing at an alarming rate as a result of the increased oil production from the Bakken formation in North Dakota," the lawmakers wrote. "Congress has provided additional funding to study safer tank cars, hire more track inspectors, and repair rail infrastructure. We urge your administration to use this funding, along with its regulatory powers, to improve oil train safety as quickly as possible."
The U.S. Department of Transportation and the U.S. Pipeline and Hazardous Materials Safety Administration first issued a draft of rules addressing oil-train safety in July 2014, but have not yet issued the final rules. The agencies were required by law to complete the rules by Jan. 15, the lawmakers said.
Baldwin and Kind cited poor rail infrastructure as among the primary reasons for the recent spate of derailments in the U.S., and they urged the Federal Railroad Administration to increase inspections along oil train routes. -
Wis. lawmakers Pressure White House to Finish Delayed Crude-By-Rail Rules
Mar 10, 2015 | E&E - Energywire
By Blake Sobczak
Two Wisconsin lawmakers are renewing calls for the Obama administration to act on crude-by-rail safety following a string of oil train derailments and fires in recent weeks.
Sen. Tammy Baldwin (D) and Rep. Ron Kind (D) voiced "deep concerns" in a letter to President Obama urging him to finish new oil tank car standards "without further delay."
The members of Congress also requested the Department of Transportation require crude oil to be "fully stabilized" before rail shipment, a step the oil and refining industries have fought as expensive and unnecessary. Stabilization removes volatile dissolved gases that make crude more prone to ignite.
Baldwin and Kind pointed out that the DOT missed its Jan. 15 statutory deadline for passing a final tank car rule. They said recent derailments and fires in Illinois and West Virginia have shown the need for tougher oversight of the fast-growing oil-by-rail business.
"The fact that the recent derailments involved newer -- and supposedly safer -- rail cars, shows that new tank cars are not adequately safe," they added in their letter.
The two lawmakers join a growing list of lawmakers to have condemned progress on crude-by-rail safety this year.
The criticism has come from both sides of the aisle: Last month, Republican Rep. Evan Jenkins of West Virginia called for completion of "long-overdue standards for tank cars and high-hazard flammable trains."
His Feb. 19 letter to Transportation Secretary Anthony Foxx and Shaun Donovan, director of the White House's Office of Management and Budget, arrived just days after a 105-car oil train derailed and exploded near Mount Carbon, W.Va., injuring one resident and destroying a home (EnergyWire, Feb. 20).
Sarah Feinberg, acting administrator of the Federal Railroad Administration who was copied on Kind and Baldwin's letter yesterday, suggested her agency has struggled to keep up with the "brand-new problem" posed by rail transport of crude.
Rail-bound oil shipments from booming fields such as North Dakota's Bakken Shale play have shot up from practically zero eight years ago to nearly 500,000 carloads in 2014, according to industry data.
In 2013, a 72-car oil train derailed and exploded in Lac-Mégantic, Quebec, killing 47 people and spurring regulators in the United States and Canada to review their hazardous materials rules.
"To the crude-by-rail issue ... it is a problem that we have because we are becoming an energy-independent country, which is wonderful," Feinberg said yesterday at an American Public Transportation Association conference in Washington, D.C. "But I don't think everyone's been thinking about the challenges that come along with energy independence, and so those are issues that we have not been tackling for a long time -- particularly in terms of the quantity of volatile product that's moving throughout the country."
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