This Week in Review – November 2-6, 2015
(1) President Obama Rejects Keystone Pipeline Permit (November 6, 2015) –
President Obama has accepted the recommendation of the U.S. State Department
to deny a permit to construct the Keystone XL pipeline. TransCanda applied for
the permit in 2012 to build the 1,204-mile pipeline to transport crude oil from
Alberta, Canada to U.S. oil refineries along the Gulf of Mexico. The
announcement, made jointly by President Obama and State Department Secretary
John Kerry, cited many factors behind the decision but emphasized that approving
the pipeline would harm international efforts to address climate change. “America
is now a global leader when it comes to taking serious action to fight climate
change. And frankly, approving this project would have undercut that global
leadership. And that’s the biggest risk we face -- not acting,” said President
Obama. At the same time, Obama and Kerry both responded to criticisms made
by supporters and opponents of the pipeline during the lengthy permit review
process. According to Kerry, “I am also convinced that public arguments for and
against the pipeline have, to some extent, been overstated. Our analysis makes it
clear that the Keystone XL pipeline would not be the economic driver it is heralded
to be. On the other hand, while it would facilitate the transportation to the United
States of one of the dirtiest sources of fuel on the planet, the proposed project by
itself is unlikely to significantly impact the level of crude extraction or the continued
demand for heavy crude oil at refineries in the United States.” Additional
background information on the Keystone XL pipeline, the legal basis for reviewing
the permit application, public and federal comments on the application and the
complete basis for denial are explained in a Record of Decision and National
Interest Determination document prepared and released by the State Department.
Earlier this week, TransCanada wrote the Obama Administration to request that it
suspend review of the Keystone XL pipeline until the company could resolve a
route
dispute
in
Nebraska.
For
further
information:
http://www.4cleanair.org/sites/default/files/Documents/Keystone_Decision.pdf
(Record of Decision and National Interest Determination);
https://www.whitehouse.gov/the-press-office/2015/11/06/statement-presidentkeystone-xl-pipeline
(Press
Statement
from
President
Obama);
http://www.state.gov/secretary/remarks/2015/11/249249.htm (Press Statement
from Secretary Kerry); http://transcanada.mwnewsroom.com/Files/b7/b7f621720b25-47a8-9bf3-479c82228f16.pdf (TransCanada Review Request)
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(2) Coalition of States and Municipalities Sides with EPA to Defend Clean
Power Plan in D.C. Circuit Litigation; Mississippi Joins Petitioners; More
Stay Motions Filed (November 4, 2015) – Eighteen states led by New York,
along with the District of Columbia and six municipalities, filed an unopposed
motion in the U.S. Court of Appeals for the D.C. Circuit to intervene in support of
EPA to help defend the Clean Power Plan (CPP). The movant-intervenors, who
assert that they have a compelling interest in defending the CPP to help prevent
and mitigate climate change harms to themselves, include California, Connecticut,
Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota,
New Hampshire, New Mexico, New York, Oregon, Rhode Island, Vermont,
Virginia, Washington, the District of Columbia, the cities of Boulder, Chicago, New
York, Philadelphia and South Miami, and Broward County, Florida. With 27 states
having already signed on to petitions challenging the rule – most recently,
Mississippi, which filed its petition for review on November 5 – there remain only
five states that have not taken sides in the D.C. Circuit litigation (Alaska, Idaho,
Nevada, Pennsylvania and Tennessee). Also this week, Mississippi, Peabody
Energy Corporation and Basin Harbor Electric Cooperative each filed motions to
stay the rule, bringing the total number of stay motions to nine (several earlier
motions were filed on behalf of multiple petitioners; all of the 27 petitioning states
have signed onto stay motions). Mississippi argues in its motion that the rule
infringes on the state’s sovereign interests and will cause it immediate and
unrecoverable economic harm due to the time and resources necessary to devote
to the development of a state plan, as well as actions that utilities must take in the
near-term to prepare for CPP compliance. For further information:
http://www.4cleanair.org/sites/default/files/Documents/2015_11_04_New_York_et
_al_Motion_to_Intervene.pdf (states’ and municipalities’ motion to intervene);
http://www.4cleanair.org/sites/default/files/Documents/2015-1105_Mississippi_Stay_Motion_Corr_11_6.pdf
(Mississippi’s
stay
motion);
http://www.4cleanair.org/sites/default/files/Documents/2015_11_05_Peabody_Sta
y_Motion.pdf
(Peabody
Energy
Corp.’s
stay
motion);
http://www.4cleanair.org/sites/default/files/Documents/2015-1105_Basin_Electric_Stay_Motion.pdf (Basin Electric Power Cooperative’s stay
motion)
(3) House Republicans Accuse EPA of Meddling with Codification Process to
Protect Clean Power Plan (November 2, 2015) – Top Republicans on the House
Energy and Commerce Committee have written a letter to EPA Administrator Gina
McCarthy accusing the agency of meddling with a process to formally codify the
1990 Clean Air Act (CAA) amendments in order to protect the agency’s Clean
Power Plan (CPP). The CPP, published in the Federal Register on October 23,
sets CO2 emission limits for existing power plants. The controversy stems from a
disagreement over the impact of conflicting House and Senate amendments
to CAA section 111(d) in the 1990 CAA amendments. Only the House amendment
appears in the U.S. Code, though both the House and Senate amendments
appear in the U.S. Statutes at Large. The House letter argues that the 1990
House amendment prohibits EPA from using section 111(d) to regulate power
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plant CO2 emissions because these sources are already regulated under CAA
section 112. The Office of Law Revision Counsel (OLRC), a nonpartisan office
based in the U.S. House, is tasked with the administrative process of incorporating
the Statutes at Large into the U.S. Code and then developing legislation to enact
those changes. Though OLRC updated the U.S. Code to incorporate the 1990
CAA amendments in 1992, enacting legislation has never been approved by
Congress and signed by the President. The House letter accuses EPA of
meddling with the OLRC’s efforts to develop such legislation over the past seven
years stating, “it appears that the agency may have been inhibiting a statutorily
prescribed process because it would undermine the agency’s legal arguments
supporting its 111(d) rulemaking.” The letter goes on to demand a description of
all of EPA’s interactions with OLRC regarding the CAA’s codification process by
November 16, 2015. The House letter is signed by Energy and Commerce
Committee Chairman Fred Upton (R-MI), Subcommittee on Oversight and
Investigation Chairman Tim Murphy (R-PA) and Subcommittee on Energy and
Power Chairman Ed Whitfield (R-KY). Representative Tom Marino (R-PA)
separately introduced legislation, H.R. 2834, in June to perform the codification by
consolidating U.S. environmental statutes into a new Title 55. The bill would
eliminate the 1990 Senate amendment language to section 111(d). The House
Judiciary Committee approved the bill with a party-line vote of 20-13 on October
27.
For
further
information:
http://www.4cleanair.org/sites/default/files/Documents/CAACodifcationLetter.pdf
(House
Energy
and Commerce
Committee
Letter to
EPA);
https://www.congress.gov/bill/114th-congress/house-bill/2834 (H.R. 2834)
http://judiciary.house.gov/index.cfm/markups-meetings?ID=3A3EACF7-0EC9401E-8566-44A7DFFFB9C0 (October 27, 2015 House Judiciary Markup)
(4) House Subcommittee Advances Congressional Review Act Measures to
Halt EPA Carbon Rules (November 3, 2015) – The House Energy and
Commerce Subcommittee on Energy and Power advanced two joint congressional
resolutions that would use the Congressional Review Act (CRA) to eliminate
EPA’s Clean Power Plan rule. The CRA allows Congress to disapprove and
rescind administrative rules with a simple majority vote in the House and Senate,
though a two-thirds majority is still required to overide any presidential veto.
Representative Ed Whitfield (R-KY) introduced the CRA resolutions, H.J. Res 71
and H.J. Res 72, last week to rescind EPA’s carbon emission limits for new and
existing power plants. The subcommittee approved both resolutions with a 15-12
party-line vote. A full committee markup has not yet been scheduled. For further
information:
https://energycommerce.house.gov/markup/energy-and-powersubcommittee-markup-hj-res-71-and-hj-res-72
(5) State and Local Entities Enter Litigation on Both Sides of EPA’s 111(b)
Rule (November 3-4, 2015) – A group of 21 states filed a challenge in the U.S.
Court of Appeals for the District of Columbia Circuit to EPA’s carbon pollution rule
for new power plants. The rule, issued under section 111(b) of the Clean Air Act,
sets CO2 emission limits for new, modified, and reconstructed power plants based
on the application of carbon capture and sequestration technology. A separate
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group of 16 states moved to intervene in support of the rule. The states in
opposition, led by West Virginia, filed a short Petition for Review on November 3
claiming that they “will show that the final rule is in excess of the agency’s
statutory authority and otherwise is arbitrary, capricious, an abuse of discretion
and not in accordance with law.” The states listed on the petition are West
Virginia, Alabama, Arkansas, Florida, Georgia, Indiana, Kansas, Kentucky,
Louisiana, Michigan, Missouri, Montana, Nebraska, Ohio, Oklahoma, South
Carolina, South Dakota, Texas, Utah, Wisconsin and Wyoming. Additional parties
listed on the filing are the Arizona Corporation Commission and environmental
agencies for Louisiana and North Carolina. The new challenge will likely be
consolidated with two other 111(b) lawsuits filed by North Dakota and Murray
Energy in the D.C. Circuit last week. In addition, a California-led coalition of 16
states and two cities filed on November 4 to intervene as respondents to defend
the rule in the North Dakota challenge. According to their motion, “State and
Municipal Intervenors have a compelling interest in defending the Final Rule as a
means to achieve their goal of preventing and mitigating climate change harms in
their states and municipalities.” California was joined on the motion by
Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts,
New Hampshire, New Mexico, New York, Oregon, Rhode Island, Vermont,
Washington, the City of New York and the District of Columbia. For further
information: http://www.4cleanair.org/sites/default/files/Documents/West-Virginia111(b)-Petition-for-Review11-3-15.pdf (West Virginia Petition for Review);
http://www.4cleanair.org/sites/default/files/Documents/California-111(b)-Motion-toIntervene%2011-4-15.pdf (California Petition to Intervene)
(6) Congressman Introduces Legislation to Strip EPA of Greenhouse Gas
Regulatory Authority (November 3, 2015) – Congressman Gary Palmer (R-AL)
introduced a bill to strip EPA of its authority to regulate greenhouse gas (GHG)
emissions and separately void EPA’s recently finalized carbon emission limits for
new and existing power plants. H.R. 3880, the Stopping EPA Overreach Act of
2015, proposes to eliminate EPA’s Clean Air Act authority over GHGs by
modifying the definition of “air pollutant” to exclude carbon dioxide, water vapor,
methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur
hexafluoride. Regarding EPA authority that may arise elsewhere to regulate
GHGs, the bill prohibits EPA from using any part of the following statutes to
require “regulation of climate change or global warming”: the Clean Air Act, the
Federal Water Pollution Control Act, the National Environmental Policy Act, the
Endangered Species Act and the Solid Waste Disposal Act. Finally, the bill
requires EPA to conduct an employment impacts analysis on all future regulations,
rules and policies and prohibit any found to have a negative employment impact.
The bill has 113 cosponsors and has been referred to the House Committees on
Energy and Commerce, Natural Resources, Transportation and Infrastructure and
Agriculture.
For further information: https://www.congress.gov/bill/114thcongress/house-bill/3880/
(7) House Science Committee Demands NOAA Response Amid Global
Warming “Pause” Controversy (November 4, 2015) – House Science, Space
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and Technology Committee Chairman Lamar Smith has written the National
Oceanographic and Atmospheric Administration (NOAA) once again to demand
documents and communications related to NOAA’s global temperature
measurements and analysis. In June, the journal Science published a NOAA
study finding that the rate of observed global warming during the past 15 years
has matched or exceeded the rate observed during the second half of the 20th
Century. The result contradicts the concept of a global warming “pause”
frequently cited by climate change skeptics. The letter, addressed to NOAA
Administrator Kathryn Sullivan, claims that NOAA has failed to respond adequately
to an October 27 subpoena demanding materials related to the study’s
development. NOAA has refused to provide the requested documents, claiming
that Smith’s request is overly broad and raises confidentiality concerns. Instead,
NOAA has pointed the committee toward publically available data and provided
two informational briefings. According to Smith, “NOAA has failed to fully explain
the conditions surrounding its process and procedures for adjusting upward
temperature readings that eliminated the ‘pause’ in global warming. Deficiencies
in NOAA’s response to the Committee’s request raise serious concerns about
what role officials at NOAA, including political appointees, had in the decision to
adjust the temperature data and widely publicize conclusions based on those
adjustments.” The letter demands a full response to the original subpoena by
November 6 and that NOAA’s Chief of Staff, Communications Director, Chief
Scientist and Director of National Centers for Environmental Information sit for
transcribed interviews by November 13.
For further information:
http://www.4cleanair.org/sites/default/files/Documents/11-4-15NOAA-SubpoenaFollow-up.pdf
(8) House Approves Long-Term Surface Transportation Bill, Readies for
Conference Committee (November 5, 2015) – The House of Representatives
passed the Surface Transportation Reauthorization and Reform (STRR) Act by a
vote of 363 to 64. Approval of the six-year, $325-billion authorization bill followed
three days of debate during which 100 amendments (of the more than 270 that
were filed) were considered. The House STRR Act, and the DRIVE Act passed by
the Senate on July 30, 2015, will now go to Conference Committee where House
and Senate conferees will negotiate and reconcile the bills with the goal of
emerging with a final piece of legislation to go before both chambers. This work
must be completed, and a bill signed into law by the President, by November 20,
2015 – the date by which the most recent highway and transit funding extension
expires; if this deadline is not met, another funding “patch” will be necessary. The
House Transportation and Infrastructure Committee has already named its
conferees; additional House conferees, as well as Senate conferees, are still to be
announced. For further information: http://transportation.house.gov/strr-act/ and
https://www.congress.gov/bill/114th-congress/housebill/22?q=%7B%22search%22%3A%5B%22%5C%22hr22%5C%22%22%5D%7D
&resultIndex=1
(9) EPA, California Notify VW of Findings of Additional Use of Defeat
Devices, House Poses More Questions to VW (November 2-3, 2015) – EPA
6
and the California Air Resources Board (CARB) notified Volkswagen (VW) that
recent testing has revealed evidence of defeat devices on still more vehicles
manufactured by VW or VW-owned companies. The affected vehicles are certain
model year 2014 through 2016 light-duty VW, Porsche and Audi diesels with 3.0liter engines. In its second Notice of Violation (NOV) to VW, EPA says, “VW knew
or should have known that the software described [in the NOV] bypasses, defeats,
or renders inoperative elements of the vehicle design related to compliance with
the CAA emissions standards. This is apparent given the design of the defeat
devices. As described [in the NOV], the software was designed to track federal
test procedures and cause emission control systems to underperform when the
software determined the vehicle was not being testing.” The agency indicates that
its investigation is continuing. In its second In-Use Compliance letter to VW,
CARB states that it is “very disappointed with this development as VW (along with
all the other manufacturers) was alerted on September 25, 2015 that ARB would
be immediately conducting defeat device testing. As you are well aware, a defeat
device was neither described nor justified in the certification applications for the
3.0 liter diesel test groups submitted to U.S. EPA and ARB. Therefore, each
vehicle so equipped would not be covered by a valid Certificate of Conformity or
Executive Order and would be in violation of federal and state law.” ARB also
indicates that its screening and testing of vehicles continues. On November 3,
2015, VW, Porsche and Audi announced that they were voluntarily discontinuing,
until further notice, sales of the most recently affected vehicles. Meanwhile, in
light of EPA’s and CARB’s new findings, the Majority and Minority leaders of the
House Energy and Commerce Committee and Oversight and Investigations
Subcommittee sent a letter to Michael Horn, President and CEO of Volkswagen
Group of America, Inc., seeking “some basic facts and clarifications” regarding
how defeat devices affect the operation of vehicles. Mr. Horn is asked to respond
by
November
17,
2015.
For
further
information:
http://www3.epa.gov/otaq/cert/violations.htm,
http://www.arb.ca.gov/msprog/vw_info/vw_diesel_info.htm,
http://press.porsche.com/news/release.php?id=958
and
http://press.porsche.com/news/release.php?id=960
(10) VW Announces “Irregularities” in CO2 Emissions from 800,000 Vehicles
Worldwide (November 3, 2015) – Volkswagen made still more news this week,
when the company announced that during the course of internal investigations
regarding diesel defeat devices that turn off NOx controls when vehicles are
operating on the road, “irregularities were found when determining type approval
CO2 levels.” VW indicates that “based on present knowledge” about 800,000
vehicles from the VW group could be affected by this latest finding. The scale of
the CO2 irregularities is not yet known. In a statement, Mathias Müller, CEO of
Volkswagen Aktiengesellschaft, said, “From the very start I have pushed hard for
the relentless and comprehensive clarification of events. We will stop at nothing
and nobody. This is a painful process, but it is our only alternative. For us, the
only thing that counts is the truth. That is the basis for the fundamental
realignment that Volkswagen needs.”
For further information:
https://www.volkswagen-media-services.com/en/detailpage/-/detail/Clarification-
7
moving-forward-internal-investigations-at-Volkswagen-identify-irregularities-inCO2levels/view/2857367/7a5bbec13158edd433c6630f5ac445da?p_p_auth=7BQwGAt
S
(11) EPA Releases Update to Motor Vehicle Emissions Model (November 4,
2015) – EPA’s Office of Transportation and Air Quality announced the release of
MOVES2014a, a revised version of its Motor Vehicle Emission Simulator
(MOVES2014) emissions modeling tool, the official model for state and local
agencies to estimate volatile organic compounds (VOCs), nitrogen oxides (NO x),
particulate matter (PM2.5 and PM10), carbon monoxide (CO), and other precursors
from cars, trucks, buses, and motorcycles for SIP purposes and conformity
determinations outside of California. EPA says MOVES2014a incorporates
“significant improvements” in calculating onroad and nonroad equipment
emissions. The model does not significantly change the criteria pollutant
emissions results of MOVES2014 and therefore is not considered a “new” model
for SIP and transportation conformity purposes. For onroad emissions,
MOVES2014a adds new options for the input of local vehicle miles traveled,
includes minor updates to the default fuel tables, and corrects an error in
MOVES2014 brake wear emissions. EPA has determined that the latter change
results in small decreases in PM emissions, while emissions for other criteria
pollutants remain essentially the same as in MOVES2014. The updated model
also corrects an error in the way hydrocarbon emissions are apportioned into the
inputs needed by air quality models, such as CMAQ and CAMx. For the
calculation of nonroad equipment emissions, MOVE2014a adds VOCs and toxics
to the list of pollutants that can be directly estimated for nonroad equipment. It
also updates the gasoline fuels used for nonroad equipment to be consistent with
those used for onroad vehicles and provides users with more flexibility in how
nonroad model output is organized. The change in default fuels leads to a small
increase in nonroad NOx emissions in some locations, EPA says. For further
information: http://www.epa.gov/otaq/models/moves/index.htm
(12) House Members Urge EPA Not to Breach E10 Blendwall in Forthcoming
2016 RFS Rule (November 4, 2015) – With the approach of the court-ordered
November 30, 2015 deadline for EPA to promulgate final Renewable Volume
Obligations (RVO) for 2014, 2015 and 2016 under the Renewable Fuel Standard
(RFS), 184 members of the House of Representatives sent a letter to EPA
Administrator Gina McCarthy urging that the agency not breach the ethanol
blendwall – “the point at which the gasoline supply is saturated with the maximum
amount of ethanol that the current vehicle fleet, marine and other small engines,
and refueling infrastructure can safely accommodate.” The signatories express
their agreement with EPA’s conclusion in its current RVO proposal for 2014, 2015
and 2016 that “the E10 [gasoline blended with 10 percent ethanol] blendwall is a
binding constraint.” They are “gravely concerned, however, that despite the
Agency’s recognition of the blendwall, the 2016 proposal acknowledges that it will
be breached nonetheless.” The lawmakers cite in their letter several studies
concluding that “detrimental economic harm” may result from a breach of the E10
8
blendwall. Therefore, they call upon EPA to invoke its statutory authority to waive
the conventional biofuel volumes mandated by the Energy Independence and
Security Act of 2007 to keep blending requirements below E10 “and to help limit
the economic and consumer harm this program has already caused.” Also related
to the RFS, the Center for Regulatory Solutions this week released a report, How
Corn Ethanol Mandates Have Hurt Ohio’s Environment and Economy, in which the
authors conclude, among other things, that RFS requirements have resulted in an
additional 1.92 million metric tons of carbon dioxide in Ohio since 2005. The
Center for Regulatory Solutions is a project of the Small Business and
Entrepreneurship Council, a nonprofit, nonpartisan advocacy and research
organization. For further information: http://flores.house.gov/uploadedfiles/rfsletter-to-admin-mccarthy-11-4-2015.pdf
and
http://centerforregulatorysolutions.org/new-crs-report-how-corn-ethanol-mandateshave-hurt-ohios-environment-and-economy/
(13) House Science Subcommittees Hold Joint Hearing to Review Costs and
Benefits of RFS (November 3, 2015) – Two House Science Subcommittees held
a joint hearing to review the environmental impacts and costs of the Renewable
Fuel Standard (RSF) based on the program’s 10-year history.
The
Subcommittees on Environment and Oversight also examined the economic
impacts and technical challenges associated with meeting future RFS
requirements with a particular focus on the impact of the RFS on the price of food
and fuel. Among the questions and issues of key interest were whether, after 10
years, the overall economic and environmental impact of the RFS has been
positive or negative; whether the U.S. transportation fuel market is capable of
absorbing the higher volumes of E85 and E15 that will be necessary to meet future
statutory RFS requirements and what impacts such higher volumes will have on
consumer prices; and how current emissions from biofuels compare with
emissions that were predicted before enactment of the RFS. In his opening
statement, Environment Subcommittee Chairman Jim Bridenstine (R-OK) called
the RFS a “complex and misguided mandate,” “an example of the federal
government picking winners and losers by forcing the use of renewables in
transportation fuels” and an “egregious perversion of the free market” and said it is
time for Congress to repeal the RFS. Rep. Barry Loudermilk (R-GA), Chairman of
the Oversight Subcommittee, said that 10 years into the RFS program “demand for
gasoline is decreasing, our country is now considering exporting crude oil, and we
now know ethanol and biofuels are not as clean as we once thought.” Witnesses
who testified at the hearing included Terry Dinan of the Congressional Budget
Office; Ed Anderson of WEN-GAP, LLC; John DeCicco of the University of
Michigan Energy Institute; Brooke Coleman of the Advanced Biofuels Business
Council; and Charles Drevna of the Institute for Energy Research. For further
information:
https://science.house.gov/legislation/hearings/subcommitteeoversight-and-subcommittee-environment-hearing-renewable-fuel
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(14) California’s Readopted LCFS Faces Legal Challenge (October 30, 2015)
– POET, LLC, a producer of ethanol, filed a petition in the Superior Court of
California, County of Fresno, challenging the California Air Resources Board’s
(CARB) recently readopted Low Carbon Fuel Standard (LCFS), as well as a
related new measure establishing standards for the regulation of alternative diesel
fuels (ADF). CARB readopted the LCFS standard, which requires a 10-percent
reduction in the carbon intensity of transportation fuels by 2020, and the ADF rule
on September 25, 2015 (see related article in the September 21-25, 2015
Washington Update). In its verified petition for writ of mandate and complaint for
declaratory and injunctive relief, POET alleges violations of the California
Environmental Quality Act and the California Administrative Procedure Act as well
as, among other things, failure on the part of CARB to analyze or mitigate the
impacts of the existing LCFS; consider feasible alternatives to address adverse
impacts; adopt adequate mitigation of nitrogen oxide (NO x) emissions associated
with biodiesel; analyze, quantify or mitigate impacts found to be “significant and
unavoidable”; analyze the impacts of fuel shuffling, certain exemptions, certain
biodiesel blends and new technology diesel engines; and analyze or discuss
criteria pollutants other than NOx.
For further information:
http://www.4cleanair.org/sites/default/files/Documents/govdoc20151103168222.pdf
(15) Court Sets Schedule for Submittal of Preliminary Documents in
Challenge to EPA’s Ozone NAAQS (October 29, 2015) – The U.S. Court of
Appeals for the District of Columbia Circuit issued an order identifying dates by
which specified legal documents must be submitted in the case of Murray Energy
v. EPA challenging EPA’s 2015 final ozone National Ambient Air Quality
Standards. Under the schedule, petitioners have until November 30, 2015 to file
their statements of issues to be raised. Petitioners and respondent EPA have until
December 14, 2015 to file dispositive motions, if any. In separate petitions last
week, Murray Energy and a group states filed for review of the ozone NAAQS (see
related article in the October 26-30, 2015 Washington Update); the D.C. Circuit, on
November 3, 2015, consolidated the two cases under Case No. 15-1385. For
further
information:
http://www.4cleanair.org/sites/default/files/Documents/Litigation-O3NAAQSCourtSchedule-102915.pdf
(16) House Hearing Examines Two Regulatory Reform Bills (November 3,
2015) – The House Judiciary Subcommittee on Regulatory Reform, Commercial
and Antitrust Law held a hearing to take testimony on two regulatory reform bills
pending before the Committee. H.R. 3438, the Require Evaluation Before
Implementing Executive Wishlists (REVIEW) Act, introduced by Rep. Thomas
Marino (R-PA), would prohibit laws from taking effect until after they have gone
through judicial review. H.R. 2631, the Regulatory Predictability for Business
Growth Act, introduced by Rep. Steve Russell (R-OK), would require “adequate”
notice to the public of revisions to interpretative rules. In his opening statement,
Rep. Bob Goodlatte (R-VA), Chairman of the House Judiciary Committee, said the
10
Committee is continuing its efforts “to deliver urgently needed reforms of
Washington’s regulatory system – a system that virtually every day places new
obstacles in the path of American jobs and economic growth.” Those who testified
at the hearing included Jeffery Bossert Clark of Kirkland & Ellis; Paul R. Noe of the
American Forest & Paper Institute; William W. Buzbee of Georgetown University
Law Center; and Edward Brady of Brady Homes Illinois. For further information:
http://judiciary.house.gov/index.cfm/hearings?ID=EEE32235-37F1-44A9-BB12B827B50B9551,
https://www.congress.gov/bill/114th-congress/housebill/2631?q=%7B%22search%22%3A%5B%22%5C%22hr2631%5C%22%22%5D
%7D&resultIndex=1 and https://www.congress.gov/bill/114th-congress/housebill/3438?q=%7B%22search%22%3A%5B%22%5C%22hr3438%5C%22%22%5D
%7D&resultIndex=1
(17) EPA Proposes Amendments to NSPS for Stationary Compression
Ignition Internal Combustion Engines (November 6, 2015) – EPA published
proposed amendments to the New Source Performance Standards for stationary
compression ignition internal combustion engines (80 Fed. Reg. 68808). Under
the proposal, owners and operators of affected engines would be allowed to
temporarily override performance-related features when the engines are needed to
respond to an emergency that poses a risk to human life, such as a fire, flood or
hurricane. Engine operators would be required to report to manufacturers those
instances when such temporary overrides take place and the manufacturers, in
turn, would submit an annual report to EPA summarizing the use of temporary
overrides during the previous year. The proposal would also revise criteria for
defining remote areas of Alaska, which are currently defined as those not
accessible by the Federal Aid Highway System (FAHS), to specify that areas that
are accessible by the FAHS can still be considered remote if certain conditions are
met. Under the current rule, engines in remote areas of Alaska are not required to
meet the most stringent NOx standards, which, in effect, necessitate the use of
add-on controls. EPA will accept public comments on this proposal until
December 21, 2015. For further information: http://www.gpo.gov/fdsys/pkg/FR2015-11-06/pdf/2015-28342.pdf
(18) Supreme Court Refuses to Consider Animal Feeding Operations
Emissions Lawsuit (November 2, 2015) – The U.S. Supreme Court has refused
to review an April decision from the U.S. Court of Appeals for the D.C Circuit
dismissing a lawsuit to force EPA to regulate emissions from animal feeding
operations (AFOs). The Iowa-based plaintiffs had demanded that EPA regulate
ammonia and hydrogen sulfide emissions as criteria pollutants, and AFOs as a
source category under the New Source Performance Standards program. They
argued that, even without a formal endangerment finding from EPA, the
prevalence of scientific evidence that ammonia, hydrogen sulfide and other AFO
emissions endanger public health should trigger regulation under the Clean Air Act
(CAA). The D.C. Circuit rejected that argument and affirmed that EPA retains the
discretion to review the science and make its own endangerment findings. The
Supreme Court’s refusal to review the case, captioned Zook v. EPA (No. 15-350),
11
leaves the D.C. Circuit dismissal intact.
For further information:
http://www.supremecourt.gov/search.aspx?filename=/docketfiles/15-350.htm
(19) EPA Extends Public Comment Period for Oil and Natural Gas Proposals
(November 3, 2015) – EPA has extended the public comment period for a
package of proposed rules and draft guidance related to the oil and natural gas
sector until December 4, 2015. The extension applies to EPA’s proposed New
Source Performance Standards (NSPS) (80 Fed. Reg. 56,593), draft Control
Techniques Guideline (80 Fed. Reg. 56,577), proposed Source Determination
Rule (80 FR 56, 579) and proposed Federal Implementation Plan for New and
Modified Minor Sources in Indian Country (80 Fed. Reg. 56,554). The previous
comment deadline was November 17.
For further information:
http://www3.epa.gov/airquality/oilandgas/pdfs/20151103commentextension.pdf
(20) Arizona Copper Smelter Agrees to Enforcement Settlement Calling for
Controls and Mitigation Projects (November 3, 2015) – A copper ore
processing, concentrating and smelter facility in Arizona has agreed to an
enforcement settlement related to alleged violations of the Clean Air Act (U.S. v.
ASARCO LLC, D. Ariz., No. 2:15-cv-02206-JZB). The proposed settlement calls
for ASARCO in Hayden, Arizona, to install $150-million worth of new equipment
and air pollution control technology, including upgraded ventilation hoods and a
new baghouse. ASARCO must also pay a civil penalty of $4.5 million, provide $8million worth of local environmental mitigation projects and replace a diesel switch
locomotive with a new, cleaner model costing $1 million. The company will also
implement an improved dust control plan and operate five ambient air monitors in
nearby communities. According to the federal government, the enforcement
action will reduce particulate matter (PM) containing hazardous air pollutants
(HAPs), such as lead and arsenic. The action is expected to result in reductions of
8.5 tons per year (tpy) of HAPs and 3,500 tpy of PM. Additionally the measures
will reduce sulfur dioxide emissions by 90 percent (19,000 tpy). The
environmental mitigation projects include $6 million for a road paving project and
$2 million for lead-based paint testing and abatement in homes, schools and other
public buildings in nearby communities. The proposed settlement will be subject to
a 30-day public comment period and court approval. For further information:
http://www2.epa.gov/enforcement/asarco-llc-settlement
(21) Court Upholds SO2 Designations (November 3, 2015) – The U.S. Court of
Appeals for the District of Columbia Circuit denied combined petitions challenging
EPA’s designation of areas of Michigan and Montana as nonattainment of the
2010 1-hour sulfur dioxide (SO2) National Ambient Air Quality Standard (NAAQS).
In August 2013, EPA designated the two areas in question – Wayne County,
Michigan and Yellowstone County, Montana – along with 26 other areas, during
the first round of designations under the SO2 NAAQS. In Treasure State
Resource Industry Association v. EPA (Case No. 13-1263), petitioners Treasure
State and United States Steel Corporation challenged these two designations.
Treasure State argued, with respect to Yellowstone County, Montana, that the
data upon which EPA relied to make the nonattainment designation were
12
unreliable and, therefore, the agency’s reliance on them was arbitrary and
capricious. Treasure State also asserted that EPA had retroactively applied the
2010 SO2 NAAQS by considering data from 2009, which predated the standard,
and that such retroactivity was not in accord with the Clean Air Act. For its part,
U.S. Steel, which has a plant in Wayne County, Michigan, did not take issue with
the designation of Wayne County as nonattainment but argued that it was
unreasonable for EPA to make the designation without simultaneously making a
nonattainment designation for at least a portion of neighboring Monroe County,
Michigan, where there is also a coal-fired power plant. U.S. Steel contended that
SO2 emissions from the Monroe plant contribute to SO2 levels in Wayne County
and, thus, EPA’s failure to designate Monroe County as nonattainment violates the
statutory requirement that any area “that contributes to ambient air quality in a
nearby area that does not meet” the NAAQS must be included in the
nonattainment designation. The D.C. Circuit rejected these arguments and denied
the
petitions
for
review.
For
further
information:
http://www.4cleanair.org/sites/default/files/Documents/TreasureStateResIndAssnv
EPA(DCCir11-3-15).pdf
(22) EPA Issues Final Reconsideration of Three Provisions of Boiler MACT
(November 5, 2015) – EPA announced final revisions to the 2013 amendments to
the National Emission Standard for Hazardous Air Pollutants (NESHAP) for Major
Sources: Industrial, Commercial, and Institutional Boilers and Processors (Boiler
MACT). These revisions follow EPA’s reconsideration of three provisions of the
final rule undertaken because the agency did not provide adequate opportunity for
notice and comment on them. The provisions relate to 1) the definition of startup
and shutdown periods and the work practices that apply during these periods, 2)
carbon monoxide (CO) emission limits based on a 130-parts-per-million minimum
CO level and 3) the use of a particulate matter continuous parameter monitoring
system and the consequences of exceeding the operating parameter. In its final
action, EPA retains all three of the reconsidered provisions; finalizes a proposed
alternate definition of startup and proposed alternate work practice standards to be
used during startup periods; finalizes various clarifying changes and corrections
intended to increase accuracy, clarity and consistency; and finalizes the removal
of the affirmative defense provision from the rule based on the recent court
decision vacating the provision in the Portland Cement NESHAP. According to
EPA, these final revisions will not result in significant changes in the costs,
emission reductions or health benefits associated with the Boiler MACT nor will
they affect coverage of the final rule.
For further information:
http://www3.epa.gov/airquality/combustion/actions.html
(23) U.S. Joins International HFC Phase-Out Agreement (November 5, 2015) –
At the 27th Meeting of the Parties to the Montreal Protocol, held this week in Dubai
and in which representatives of 197 countries participated, agreement was
reached on a phase-out of hydrofluorocarbons (HCFs), some of the most potent
manmade greenhouse gases – 12,000 times more than comparable amounts of
carbon dioxide – and key contributors to global climate change. Details of the
phase-out, to be added to the Montreal Protocol, will be negotiated over the next
13
year. In a press statement, U.S. Secretary of State John Kerry said, “This is a
major accomplishment. The Montreal Protocol is among the most successful
multilateral environmental treaties in history. Amending it to include HFCs could
set a course for actions that would avoid 0.5 C of warming by the end of the
century.” Kerry also remarked that the progress made in Dubai “lays the
groundwork for even greater cooperation toward a successful outcome in Paris
[the 21st United Nations Conference on Climate Change, beginning November 30,
2015].”
For
further
information:
http://www.state.gov/secretary/remarks/2015/11/249230.htm
The Week Ahead



Veteran’s Day – November 11, 2015
EPA Hearing on a Proposed Federal Implementation Plan for the Clean Power
Plan, in Pittsburgh, PA – November 12-13, 2015
Senate Committee on Homeland Security and Governmental Affairs Hearing
on "The Impact of Federal Regulations: A Case Study of Recently Issued
Rules," in Stevens Point, WI – November 13, 2015
NACAA
444 North Capitol Street, NW, Suite 307
Washington, DC 20001
Tel: (202) 624-7864/Fax: (202) 624-7863
4cleanair@4cleanair.org