EPA Proposal to Replace Clean Power Plan

August 27, 2018
EPA proposed a new rule to reduce greenhouse gas (GHG) emissions from existing coal-fired electric utility generating units and power plants across the country. This proposal, entitled the Affordable Clean Energy (ACE) Rule, establishes emission guidelines for states to use when developing plans to limit GHGs at their power plants. The ACE Rule replaced the Obama administration’s Clean Power Plan (CPP) and empowers states, promotes energy independence, and facilitates economic growth and job creation. 
Pursuant to President Trump’s Executive Order 13873, which directed Federal agencies to review “burdensome regulations,” the EPA undertook a review of the CPP. According to EPA, the CPP exceeded EPA’s authority under the Clean Air Act, which is why 27 states, 24 trade associations, 37 rural electric co-ops, and three labor unions challenged the rule. Additionally, the Supreme Court issued an unprecedented stay of the rule. 
“The ACE Rule would restore the rule of law and empower states to reduce greenhouse gas emissions and provide modern, reliable, and affordable energy for all Americans,” said EPA Acting Administrator Andrew Wheeler. ”Today’s proposal provides the states and regulated community the certainty they need to continue environmental progress while fulfilling President Trump’s goal of energy dominance.”
“EPA has an important role when it comes to addressing the CO2 from our nation’s power plants,” said Assistant Administrator for the Office of Air and Radiation Bill Wehrum. ”The ACE rule would fulfill this role in a manner consistent with the structure of the Clean Air Act while being equally respectful of its bounds.”
The proposal will work to reduce GHG emissions through four main actions:
  1. ACE defines the “best system of emission reduction” (BSER) for existing power plants as on-site, heat-rate efficiency improvements;
  2. ACE provides states with a list of “candidate technologies” that can be used to establish standards of performance and be incorporated into their state plans;
  3. ACE updates the New Source Review (NSR) permitting program to further encourage efficiency improvements at existing power plants; and
  4. ACE aligns regulations under CAA section 111(d) to give states adequate time and flexibility to develop their state plans.
The proposed ACE Rule is informed by more than 270,000 public comments that EPA received as part of its December 2017 Advance Notice of Proposed Rulemaking (ANPRM).  
EPA’s regulatory impact analysis (RIA) for this proposal includes a variety of scenarios. These scenarios are illustrative because the statute gives states the flexibility needed to consider unit-specific factors – including a particular unit’s remaining useful life – when it comes to standards of performance. Key findings include the following:
  • EPA projects that replacing the CPP with the proposal could provide $400 million in annual net benefits.
  • The ACE Rule would reduce the compliance burden by up to $400 million per year when compared to CPP.
  • All four scenarios find that the proposal will reduce CO2 emissions from their current level.
  • EPA estimates that the ACE Rule could reduce 2030 CO2 emissions by up to 1.5% from projected levels without the CPP –  the equivalent of taking 5.3 million cars off the road. Further, these illustrative scenarios suggest that when states have fully implemented the proposal, U.S. power sector CO2 emissions could be 33% to 34% below 2005 levels, higher than the projected CO2 emissions reductions from the CPP. 
New York Attorney General Barbara D. Underwood released the following statement in response to the Trump administration’s proposal:
“As we face another record-breaking year of punishing heat and violent storms, the Trump administration is seeking to gut crucial limits on emissions of climate change pollution from power plants – one of its largest sources.  
If the Trump administration’s proposal to dismantle the Clean Power Plan is adopted, we will work with our state and local partners to file suit to block it – in order to protect New Yorkers, and all Americans, from the increasingly devastating impacts of climate change.”
Maryland Attorney General Brian E. Frosh said, “The Environmental Protection Agency cannot step away from its job. We have a shared responsibility to protect our environment from harm. Any effort to pare down or eliminate the Clean Power Plan takes away years of progress to mitigate the harmful effects of climate change on our public health and our environment. Our coalition of states and local governments will continue to defend the Clean Power Plan which is critical to ensuring that progress is made in confronting climate change.”
EPA will take comment on the proposal for 60 days after publication in the Federal Register and will hold a public hearing. More information including a pre-publication version of the Federal Register notice and a fact sheet are available at https://www.epa.gov/stationary-sources-air-pollution/proposal-affordable-clean-energy-ace-rule.
These Lithium-Ion Batteries Can’t Catch Fire Because They Harden on Impact
Lithium-ion batteries commonly used in consumer electronics are notorious for bursting into flame when damaged or improperly packaged. These incidents occasionally have grave consequences, including burns, house fires and at least one plane crash. Inspired by the weird behavior of some liquids that solidify on impact, researchers have developed a practical and inexpensive way to help prevent these fires.
“In a lithium-ion battery, a thin piece of plastic separates the two electrodes,” Gabriel Veith, Ph.D., said at the 256th National Meeting & Exposition of the American Chemical Society (ACS). “If the battery is damaged and the plastic layer fails, the electrodes can come into contact and cause the battery’s liquid electrolyte to catch fire.”
To make these batteries safer, some researchers instead use a nonflammable, solid electrolyte. But these solid-state batteries require significant retooling of the current production process, Veith says. As an alternative, his team mixes an additive into the conventional electrolyte to create an impact-resistant electrolyte. It solidifies when hit, preventing the electrodes from touching if the battery is damaged during a fall or crash. If the electrodes don’t touch each other, the battery doesn’t catch fire. Even better, incorporating the additive would require only minor adjustments to the conventional battery manufacturing process.
The project’s eureka moment came when Veith and his kids were playing with a mix of cornstarch and water known as oobleck. “If you put the mixture on a cookie tray, it flows like a liquid until you start poking it, and then it becomes a solid,” says Veith, who is based at Oak Ridge National Laboratory and is the project’s principal investigator. After the pressure is removed, the substance liquefies again. Veith realized he could exploit this reversible “shear thickening” behavior to make batteries safer.
This characteristic depends on a colloid, which is a suspension of tiny, solid particles in a liquid. In the case of oobleck, the colloid consists of cornstarch particles suspended in water. For the battery colloid, Veith and his colleagues at Oak Ridge and the University of Rochester used silica suspended in common liquid electrolytes for lithium-ion batteries. On impact, the silica particles clump together and block the flow of fluids and ions, he explains. The researchers used perfectly spherical, 200-nanometer-diameter particles of silica, or essentially a superfine sand. “If you have that very uniform particle size, the particles disperse homogeneously in the electrolyte, and it works wonderfully,” Veith says. “If they’re not homogenously sized, then the liquid becomes less viscous on impact, and that’s bad.”
A few other labs have been studying shear thickening to make batteries safer. One team previously reported on research with “fumed” silica, which consists of tiny irregular particles of silica. Another group recently reported on the effect of using rod-shaped silica particles. Veith thinks his spherical particles might be easier to make than the rod-shaped silica and have a faster response and more stopping power on impact than fumed silica.
One of Veith’s major advances involves the production process for the batteries. During manufacture of traditional lithium-ion batteries, an electrolyte is squirted into the battery case at the end of the production process, and then the battery is sealed. “You can’t do that with a shear-thickening electrolyte because the minute you try to inject it, it solidifies,” he says. The researchers solved this by putting the silica in place before adding the electrolyte. They are seeking a patent on their technique.
In the future, Veith plans to enhance the system so the part of the battery that’s damaged in a crash would remain solid, while the rest of the battery would go on working. The team is initially aiming for applications such as drone batteries, but they would eventually like to enter the automotive market. They also plan to make a bigger version of the battery, which would be capable of stopping a bullet. That could benefit soldiers, who often carry 20 pounds of body armor and 20 pounds of batteries when they’re on a mission, Veith says. “The battery would function as their armor, and that would lighten the average soldier by about 20 pounds.”
The project is being supported by the U.S. Department of Energy’s Advanced Research Projects Agency-Energy and Oak Ridge National Laboratory.
EPA and Justice Department Reach $365,000 Settlement with CertainTeed for Alleged Safe Drinking Water Violations
Under a settlement announced by the EPA and U.S. Department of Justice (DOJ), CertainTeed Corporation will pay $365,500 in civil penalties to resolve alleged violations of the Safe Drinking Water Act (SDWA) at the CertainTeed Lake Charles Polymer Plant in Westlake, Louisiana. The settlement requires the largest civil penalty payment under the Safe Drinking Water Act by a public water system with respect to drinking water in the state of Louisiana.
“This is an excellent example of EPA and Louisiana working together to ensure compliance with safe drinking water standards,” said EPA Region 6 Compliance Assurance and Enforcement Director Cheryl Seager. “We are committed to protecting the public health and will not hesitate to hold companies accountable who refuse to comply with the law.”
In a complaint filed in the U.S. District Court for the Eastern District of Pennsylvania, the U.S. alleges that CertainTeed violated drinking water treatment requirements under the SDWA by failing to correct significant deficiencies identified during a Louisiana Department of Health (LDH) sanitary survey of CertainTeed’s public water system located at the Westlake plant. These violations included, among other things, failure to provide approved and permitted drinking water at its facility for its employees and failure to monitor and test for contaminants that can result in adverse health effects. Despite numerous enforcement efforts by both EPA and the state of Louisiana, including letters from LDH, a joint inspection by LDH and EPA, and an EPA administrative order, CertainTeed took over four years to address the significant deficiencies identified in the survey.
As a result of state and federal enforcement efforts, CertainTeed has completed actions to correct the issues alleged in the Complaint and has achieved compliance with the SDWA and the rules to ensure the safety of drinking water served to its employees and facility visitors by public water providers like CertainTeed.
CertainTeed Corporation manufactures exterior and interior building products. CertainTeed Corporation’s Westlake, Louisiana facility manufactures polymer products, including vinyl siding.
More than 30% of Energy Consumed in Four States Comes from Wind
The U.S. Department of Energy (DOE) released three wind energy market reports demonstrating that as wind installations continue across the country and offshore wind projects move beyond the planning process, technology costs and wind energy prices continue to fall. The reports cover three market sectors: land-based utility scale, distributed, and offshore wind.
Highlights from this past year include larger, more powerful wind turbines and lower technology costs and wind power prices for on land and offshore applications, as well as U.S. distributed wind capacity crossing the 1 gigawatt (GW) threshold.
The 2017 Wind Technologies Market Report, prepared by DOE’s Lawrence Berkeley National Laboratory, found the following:
  • The U.S. wind industry installed 7,017 megawatts (MW) of capacity last year, bringing total utility-scale wind capacity to nearly 89 GW.
  • In total, 41 states operated utility-scale wind projects. Texas leads the nation with over 22 GW of wind capacity, while Oklahoma, Iowa, California, and Kansas have more than 5,000 MW.
  • Another 13 states have more than 1,000 MW.
  • In 2017, wind energy contributed 6.3% of the nation’s electricity supply, more than 10% of total generation in 14 states, and more than 30% in four of those states—Iowa, Kansas, Oklahoma, and South Dakota.
  • Bigger turbines with longer blades are enhancing wind plant performance. Wind projects built in the past few years have seen capacity factors increase by 79% compared to projects installed from 1998 to 2001.
  • The average installed cost of wind projects in 2017 was $1,611 per kilowatt (kW), down 33% from the peak in 2009–2010.
  • The U.S. wind industry supported more than 105,000 jobs and saw $11 billion invested in new wind plants in 2017.
The 2017 Distributed Wind Market Report, prepared by DOE’s Pacific Northwest National Laboratory, highlights the following:
  • In total, U.S. wind turbines in distributed applications reached a cumulative installed capacity of 1,076 MW. This capacity comes from roughly 81,000 turbines installed across all 50 states, Puerto Rico, the U.S. Virgin Islands, and Guam.
  • In 2017, Iowa, Ohio, and California led the nation in new distributed wind capacity installed as a result of large-scale turbines installed by commercial and industrial facilities and electricity distribution utilities.
  • 35% of distributed wind projects installed in 2017 were at homes, and 25% were agricultural installations.
  • U.S. manufacturers of small wind turbines and their supply chain vendors are located in 27 states.
  • Between 2015 and 2017, U.S.-based small wind turbine manufacturers accounted for more than $226 million in export sales.
The 2017 Offshore Wind Technologies Market Update, prepared by DOE’s National Renewable Energy Laboratory, found the following:
  • The U.S. offshore wind industry recently took a leap forward as commercial-scale projects were competitively selected in Massachusetts (800 MW), Rhode Island (400 MW), and Connecticut (200 MW).
  • New York, New Jersey, and Maryland also have offshore wind projects in the development pipeline.
  • The U.S. offshore wind project pipeline has reached a total of 25,464 MW of capacity across 13 states, including the 30 MW Block Island Wind Farm commissioned in 2016.
  • In Europe—where most offshore wind development has occurred to date—recent offshore wind project auctions have continued the trend of developers committing to lower electricity prices for projects that will be operating in the 2020s.
  • New offshore wind turbines are being developed with 10–12 megawatts of capacity (compared to an average capacity of 2.3 MW for land-based turbines and 5.3 MW for offshore wind turbines installed in 2017). As a result, demand is increasing for specialized ships that will be able to install these very large turbines in U.S. waters.
  • About 60% of the U.S. offshore wind resource lies in deep waters. Developing a project in deep waters requires wind turbines on floating foundations.
  • In the U.S., floating offshore wind projects have been proposed off the coasts of Maine, California, and Hawaii.
Find more information on the three wind reports HERE. For more information on DOE’s wind energy research and development efforts, visit DOE’s Wind Energy Technologies Office.
Company and Property Owners Assessed $21,400 Penalty for Violating Waste Site Cleanup Regulations
The Massachusetts Department of Environmental Protection (MassDEP) has assessed a penalty of $21,400 to Landtree Design, Inc., and property owners David J. Babin and Janet M. Babin, for violating oil and hazardous materials cleanup regulations for a release of oil at 93 Hollis Street in Pepperell. MassDEP found that the company and owners failed to report the oil release, obtain approval prior to conducting cleanup actions, and properly store contaminated soils that were excavated.
On October 31, 2017, approximately 80 gallons of fuel oil was released from an aboveground storage tank at Landtree’s business office. MassDEP was informed of the spill by an anonymous caller on November 1 when Landtree and the Babins failed to notify MassDEP within two hours as required for oil spills greater than 10 gallons.
An inspection on November 6 by MassDEP with the Pepperell Fire Department and Board of Health confirmed that a reportable spill had occurred and contaminated soil had been excavated and stored improperly at the property without MassDEP knowledge or approval. Following the inspection, additional oil-contaminated soil was excavated and testing of soil and groundwater was conducted. A final cleanup report was received by MassDEP in December 2017, verifying that cleanup standards had been met. 
“Businesses operating within the Commonwealth of Massachusetts, as well as property owners must provide prompt notification to MassDEP and seek approval to conduct cleanup actions in the event of an oil release to the environment,” said Mary Jude Pigsley, director of MassDEP’s Central Regional Office in Worcester. ”This is necessary to ensure whatever cleanup actions they take are, in fact, done properly in the interest of public health, safety, welfare and the environment.”
In addition to the administrative penalty, the company and property owners have agreed to provide training in proper oil spill notification and response and provide certification of the training to MassDEP.
Court Upholds National Safeguard for Coal Ash
The U.S. Court of Appeals for the D.C. Circuit issued a decision holding that the first-ever federal safeguards set by the Obama administration for coal ash dumps do not sufficiently protect communities and the environment from pollution from that toxic waste.
The court’s decision sided with public interest groups by concluding that the Obama-era rule failed to adequately protect against pollution from unlined and inadequately lined ash pits, many of which are already leaking dangerous pollution into rivers and streams. The Court ordered the EPA to revise the rule to properly address the health and environmental threats from these dump sites. The Court also agreed with public interest groups that EPA did not go far enough in regulating coal ash dumps, holding that EPA improperly exempted coal ash ponds at closed coal-fired power plants from regulation. Rejecting industry challenges to the rule, the Court further held that EPA acted within its authority to regulate coal ash ponds no longer actively receiving waste and located at operating plants.
“Today’s ruling is a victory for the people who are exposed to toxic waste from coal-fired power plants,” said Earthjustice attorney Lisa Evans, one of the attorneys who filed the lawsuit. “The court’s decision limits the Trump administration’s ability to further roll back these vital health protections by recognizing the danger that these dumps already pose.”
The Court’s decision follows the Trump EPA’s publication this July of revisions that weaken the rule promulgated by the Obama administration. The court decision casts serious doubt on the legality of those revisions, which, among other things, extend the deadline to close leaking unlined coal ash ponds. A defeat for the Trump administration on those revisions would be par for the course: courts have repeatedly struck down the Administration’s attempts to eviscerate environmental protections.
“This ruling makes Trump’s EPA’s attempt to gut standards that reduce toxic coal ash contamination even more outrageous,” said Jennifer Peters, National Water Programs Director for Clean Water Action. “The Court made it clear that EPA has a responsibility to protect people and communities by addressing the threats coal ash dumps pose to our health and environment. EPA should focus on that responsibility instead of gutting commonsense safeguards for our water.”
“The timing of this decision could not be more ironic,” said Larissa Liebmann, Waterkeeper Alliance Staff Attorney. “While Trump’s EPA attempts to sell out public health and the environment by replacing the Clean Power Plan to prop up the dirty, dying coal industry, we will keep fighting to make EPA do its job of protecting communities and waterways from toxic, carcinogenic, coal pollution.”
The decision arises from lawsuits challenging the 2015 coal ash rule: one by public interest groups arguing that the rule was not strong enough, and one by industry groups arguing that the rule was too stringent. The Utilities Solid Waste Activities Group (USWAG), a trade organization that has long fought against the common-sense pollution protections for coal ash dumps, sought broad rollbacks of key protections in the rule. Among other requests, USWAG urged EPA to scrap standards for retired coal ash dumps. The court’s decision indicates not only that the EPA has the authority to regulate those abandoned dumps, but that it must do so.
Coal ash is the toxic waste left over from coal-burning power plants. For decades, coal ash was dumped into over a thousand unlined ponds and landfills across the nation, where hazardous chemicals seep into water and soil and blow into the air. Coal ash waste contains some of some of the deadliest known toxins, including arsenic, lead, mercury and chromium. The toxics cause cancer, heart disease, reproductive failure and stroke, and can inflict lasting brain damage on children.
“With this ruling, the Court has delivered a win for communities and for public health — EPA and utilities can no longer ignore the clear dangers posed by unlined coal ash ponds or poorly lined ponds,” said Lisa Hallowell, Senior Attorney with the Environmental Integrity Project. “The evidence of toxic pollution leaking from these ponds is staggering, and communities can rest easier that these utilities will no longer be let off the hook.”
The court decision also follows the March release of nationwide water testing data from coal ash sites that indicates that industry dump sites are polluting groundwater at almost every plant in the country. Together with this decision, those test results, and other results available on the Environmental Integrity Project’s ashtracker website, suggest that EPA will have an even more difficult time justifying rollbacks of the rule going forward.
“This is a major legal victory for clean and safe drinking water and another setback for the Trump administration’s hackneyed approach to dismantling protections designed to safeguard our communities from water pollution,” said Mary Anne Hitt, Senior Director of Sierra Club’s Beyond Coal campaign. “For decades, Americans have demanded government agencies use strong science to guide their decisions in managing coal ash. Today’s court decision is another step in that direction — despite the frequent assaults from the Trump administration.”
The coal ash rule went into effect in October 2015, after Earthjustice filed a lawsuit seeking protections on behalf of public interest groups and a Native American tribe, the Moapa Band of Paiutes. The EPA received more than a half-million comments from people supporting the safeguards that the Court largely upheld.
Among other things, EPA’s 2015 coal ash rule required utilities to test the water near their coal ash dumps to make sure hazardous chemicals were not leaking into drinking water sources. Industry monitoring results were made available to the public in March, and the testing reveals that more than 90% of the coal ash dumps in the U.S. are contaminating groundwater with toxins above levels that EPA deems safe for drinking water. More than half of the sites have unsafe levels of arsenic, often many times higher than the safe drinking water standard. Levels of cobalt, lithium, and sulfate are also far above health-based levels at most sites. One in five sites has unsafe levels of radium (radioactivity), and over a third have unsafe levels of molybdenum. Overall, 92% of sites have unsafe levels of at least one of the following constituents, arsenic, boron, cobalt, lithium, molybdenum, radium or sulfate.
The decision also affects the coal ash rule’s provisions regulating enormous piles of ash, such as those at AEP’s coal plant in Puerto Rico, and provisions concerning the “beneficial reuse” of coal ash. The court granted EPA’s request to revise those provisions, which EPA has indicated that it will address in proposals later this year.
In 2008, the single-largest toxic waste spill in U.S. history happened when a billion gallons of coal ash sludge burst through a dam at the Tennessee Valley Authority Kingston plant in Harriman, Tennessee and covered 300 acres, destroying dozens of homes. In 2014, a portion of a coal ash dump in North Carolina collapsed, fouling 80 miles of the Dan River with toxic sludge.
Environmental Laboratory Owner Guilty of Underground Storage Tank Cleanup Fund Fraud
The owner of a Southern California environmental laboratory has pleaded guilty to a felony charge of filing false information and overcharging for clean-up costs submitted to the State Water Resources Control Board’s Underground Storage Tank Cleanup Fund.
In addition to being sentenced to 30 days community service, Roobik Yaghoubi, owner of Cal Tech Environmental Laboratories (CTEL) in Paramount, has been ordered to pay $190,000 in restitution to the State Water Board, including $70,000 already seized from his home.
“Accredited laboratories that produce high scientific integrity data are the centerpiece of all environmental protection programs,” said Christine Sotelo, chief of California’s Environmental Laboratory Accreditation Program (ELAP). “This case is an important lesson for the laboratory community, in that we will aggressively pursue laboratories that violate state laws and regulations and fail to produce data of known and documented quality.”
The plea resulted from an investigation by the ELAP and the board’s Office of Enforcement. The investigation uncovered evidence of altered data, failed quality control tests, gaps in the chain of custody, improper reuse of sample containers, and poor housekeeping of laboratory equipment.
The Underground Storage Tank (UST) Cleanup Fund, financed by a 2-cent per gallon gasoline tax, is used to reimburse contractors who perform cleanup up to $1.5 million per site for cleaning up petroleum leaks at underground storage tank facilities statewide. The fund has reimbursed more than $3.6 billion since 1992, including $132 million in 2016. About 8,700 sites have been remediated and closed since the UST Clean Up Fund’s inception in 1989.
“Accurate and reliable analytical data is essential to ensure that state funds are being used appropriately and that threats to water quality are being negated,” said Yvonne West, director of the Office of Enforcement. “The Office of Enforcement will vigorously investigate and prosecute unscrupulous individuals who defraud the people of the state and sacrifice water quality for financial gains.”
CTEL had been in business since 1999 and was accredited by ELAP to analyze water and soil samples using specific wastewater and hazardous waste analytical methods. The laboratory’s accreditation expired nearly two years ago.
Data generated by CTEL have been used by dozens of clients statewide, including the State Water Board claimants, environmental consultants, real estate and construction services, corrosion control services, activated carbon suppliers, waste management services, metal plating facilities and others. Anyone who has used CTEL or another laboratory and has concerns about quality of work or accuracy of a laboratory’s billing practices, are encouraged to contact Jacob Oaxaca by email at Jacob.Oaxaca@waterboards.ca.gov or by phone at (916) 323-3433.
A copy of the complaint against CTEL and Yaghoubi, along with his felony plea filed in Los Angeles County Superior Court, can be found on the State Water Board’s Office of Enforcement website.
States Ask EPA to Stop Roll-Back of RMP Regulations
New York Attorney General Underwood is leading a coalition of 12 state Attorneys General, to call on the EPA to abandon a proposed rule that would rollback protections currently provided to communities, workers, and first responders from dangerous chemical accidents – part of extensive comments submitted on an Agency proposal to rescind key provisions of 2017 amendments to EPA’s “Risk Management Program” (RMP) regulations. The “Accident Prevention Amendments” rule made critical improvements to the RMP to safeguard against explosions, fires, poisonous gas releases, and other accidents at facilities that store and use toxic chemicals.
Prior to proposing to roll back the Accident Prevention Amendments, then-EPA Administrator Scott Pruitt sought to block the rule by delaying it by 20 months. The New York Attorney General led a coalition of 11 state Attorneys General in a lawsuit challenging the delay and, last week, the US Court of Appeals for the District of Columbia Circuit struck down the delay, ruling that it violated the federal Clean Air Act and was arbitrary and capricious. In throwing out the unlawful delay, the court concluded, “EPA had found, and the record shows, that there was a need for improvements to protect worker and community safety, and to reduce fatalities, injuries, life disruption, and other harm.”
“Yet again, the Trump Administration is proposing to sell out the health and safety of New Yorkers to corporate interests – jeopardizing our workers, first-responders, and communities,” Attorney General Underwood said. “The EPA’s proposal would gut critical protections against all-too-common accidents at facilities that store and use dangerous toxic chemicals. If acting EPA Administrator Wheeler won’t scrap this reckless erosion of New Yorkers’ health and safety protections, we’re prepared to take legal action yet again to ensure a court does.”
Joining Attorney General Underwood in the comments are the Attorneys General of Illinois, Iowa, Maine, Maryland, Massachusetts, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington.
“These safety rules exist for a reason,” said New Jersey Attorney General Grewal. “They’re designed to protect our communities – and especially our lower-income communities – from the dangers of toxic chemical disasters. These rules are particularly important in New Jersey, where we are still recovering from a long history of industrial pollution. Once again, the EPA is trying to strip away environmental protections from the places where we need it most.”
The more than 12,000 facilities covered by the RMP regulations include chemical manufacturers, petroleum refineries, pulp and paper mills, chemical and petroleum wholesalers and terminals, wastewater treatment plants, agricultural chemical distributors, midstream gas plants, and food storage facilities with ammonia refrigeration systems. The 169 facilities located in New York include Amrex Chemical (Binghamton), Arch Chemicals (Rochester), Durez Corp. (Niagara Falls), FMC Industrial Chemicals (Tonawanda), MPM Silicones (Waterford), International Paper (Ticonderoga), JCI Jones Chemicals (Warwick), Momentive Specialty Chemicals (South Glens Falls), PVS Chemical Solutions (Buffalo), Surpass Chemical (Albany), and Twin Lakes Chemical (Lockport).
More than 9.1 million people live within the “vulnerability zone” of RMP facilities in New York; vulnerability zones are the maximum possible area where a worst-case release of chemicals could harm people. People of color are more likely to live in the vulnerability zones, raising substantial environmental justice concerns. According to a September 2014 report by the Center for Effective Government entitled “Kids in Danger Zones,” New York has the fifth-largest number of schools and number of students located in vulnerability zones. Further, roughly 85 New York facilities (over 50%) are located in flood zones defined by the Federal Emergency Management Agency (FEMA).
In their comments, the coalition charges that the proposed rule would “eviscerate” the safeguards added by the Accident Prevention Amendments rule and represent a “step backwards in preventing and mitigating harms to public health and the environment from chemical accidents.” The coalition also argues that the proposal, if adopted, would be “inconsistent with the Clean Air Act” and “arbitrary and capricious.”
In New York, 169 facilities that store or use toxic chemicals are subject to RMP regulations.  According to their most recent 5-year accident histories, these facilities reported 16 accidents that released more than 21,000 pounds of toxic chemicals into the surrounding communities. The accidents resulted in fourteen injuries, the evacuation of more than a thousand people, and property damage totaling more than $200,000. In May 2011, a flash fire ignited at Momentive Performance Materials in Waterford, New York and severely burned two employees. The federal Occupational Safety and Health Administration (OSHA) ultimately fined Momentive $81,000 for violations including failure to review operating procedures as often as necessary, exposing employees to “fire and explosion hazards,” and failing to address all factors that contributed to the accident in its post-accident report. The most recent accident at a New York RMP facility took place in May 2017, when a chemical explosion at the Occidental Chemical Corporation plant in Niagara injured four people.
The number and severity of accidents over the last decade make clear the need to update the safety and security of the nation’s chemical facilities. In January 2017, the Obama administration finalized the “Accident Prevention Amendments” to update RMP regulations mandated by Congress in 1990 amendments to the federal Clean Air Act.  The amended rules established additional safeguards in accident prevention programs to protect communities and prevent future accidents – requiring “root cause” analyses and third-party audits following accidents, as well as analyses of safer technology and alternatives; emergency response procedures, mandating annual coordination with local first responders, annual notification drills, and periodic field exercises; and increased public access to facility chemical hazard information, in addition to public meetings within 90 days of an incident. The Trump EPA published a June 2017 fact sheet explaining how these improvements “will help protect local first responders, community members, and employees from death or injury due to the chemical facility accidents.”
Shortly after EPA finalized the Accident Prevention Amendments, three petitions were filed with the Agency – including one from the “RMP Coalition,” a coalition of industry groups that includes the American Chemistry Council, the American Forest & Paper Association, the American Fuel & Petrochemical Manufacturers, and the American Petroleum Institute – urging then-EPA Administrator Scott Pruitt to reconsider the new regulations.
In May of this year, then-Administrator Pruitt proposed to rescind key provisions of the Accident Prevention Amendments, including eliminating all third-party compliance audits, and safer technology and alternatives analysis.  The proposal would weaken accident investigations by removing requirements for root cause analyses and detailed reporting. It would also weaken existing requirements for evaluations of the dangers associated with chemicals, processes, and procedures at facilities, as well as decrease safety training for facilities’ employees. The coalition of Attorneys General, in its comments, challenges the rationales EPA uses to support of these rescissions as in conflict with the Clean Air Act and unsupported by the public record. In June, Attorney General Underwood’s office testified against the proposed rollback.
This matter is being handled by Assistant Attorney General Laura Mirman-Heslin and Senior Counsel for Air Pollution and Climate Change Litigation Michael J. Myers of the Attorney General’s Environmental Protection Bureau. The Bureau is led by Bureau Chief Lemuel M. Srolovic and is part of the Division of Social Justice, which is led by Executive Deputy Attorney General for Social Justice Matthew Colangelo. 
Graham Virginia Inc. Fined for Underground Storage Tanks Violations
The Oregon Department of Environmental Quality has fined Graham Virginia Inc., and its registered agent Howard D. Graham, $1,300 for failing to comply with a final order from DEQ.
DEQ issued an order in December 2017 that required the company to submit to DEQ corrosion protection inspection and test results for the underground storage tank system at 1805 Virginia Ave., North Bend. The order became final because the company did not appeal it. DEQ has still not received the documentation.
DEQ’s underground storage tanks violations are in place to safeguard against leaks that can harm the environment and threaten human health. Graham Virginia Inc. has until Aug. 30 to appeal the fine.
Renewal of the Texas Small (Phase II) Municipal Separate Storm Sewer System (MS4) General Permit
The Texas Commission on Environmental Quality is in the process of renewing the 2013 Texas Pollution Discharge Elimination System (TPDES) general permit for small MS4s, TXR040000, which expires on December 13, 2018.
The Small MS4 General Permit authorizes the discharge of stormwater to surface water from small MS4s in the state. Stakeholders will have the opportunity to comment on the proposed draft permit during the public comment period, from August 24, 2018 through September 24, 2018. During that time, comments may be submitted by mail to the Office of the Chief Clerk, MC 105, TCEQ, P.O. BOX 13087, Austin, TX 78711-3087; or electronically to the Office of the Chief Clerk with the subject title “Phase II MS4 2018 Renewal.”
A public meeting will be held on September 24, 2018, at 1:30 p.m. at the TCEQ Park 35 Campus, Bldg. E, Room 201S Agenda Room. A public notice will be published in the Texas Register, as well as fourteen newspapers across the state. The draft permit and fact sheet was made available online on August 24, 2018.
Significant changes to the general permit include:
  • Electronic submittal of application and reports will be required by December 21, 2020;
  • Minimum Control Measure 7, authorization of construction activities where the small MS4 is the site operator, has a lower benchmark value for total suspended solids (TSS)  from 100 mg/L to 50 mg/L;
  • The definition of construction activity is revised to include stockpiling of fill material and demolition;
  • Implementation of the MS4 Remand Rule, which modifies the permit language so it becomes clear, specific, and measurable;
  • A requirement for the MS4 to post its annual reports and the SWMP on its website, if the MS4 has one;
  • Addition of a public notice process for certain Notice of Changes;
  • Level 4 MS4s (MS4s serving a population of more than 100,000) must control the discharge of floatables in the MS4s and evaluate new and existing flood management projects to determine their impact on water quality; and
  • The application fee will now be $400 instead of $100.
Permittees with current (active) authorizations should not attempt to renew their authorization before the new permit has been issued and made effective on December 13, 2018.  Permittees with current authorizations will have a 180-day grace period to renew their authorizations starting on the date the new permit becomes effective.
Updated Montana Underground Storage Tank Rules Available for Comment
The Montana Department of Environmental Quality released proposed updated rules for underground storage tanks.
In 2015, the EPA published amendments to the federal underground storage tank rules. These revisions strengthen the original underground storage tank regulations, enacted in 1988, by increasing emphasis on properly operating and maintaining UST equipment.
Montana is a primacy state in regulating underground storage tank rules, meaning DEQ is able to enact and enforce its own set of rules as long as they are no less stringent than the federal regulations. These proposed rules update Montana requirements to comply with the new federal laws. This is the first major revision since 1988.
The 2015 revised federal underground storage tank regulations added new operation and maintenance requirements, including:
  • 30-day walk-through inspections of UST facilities;
  • requiring UST system compatibility before storing certain biofuel blends;
  • removing past deferrals for field constructed tanks and airport hydrant systems;
  • updating codes of practice; and
  • making editorial and technical corrections.
The revisions will help prevent and detect UST releases, which are a leading source of groundwater contamination. They will also ensure all USTs in the United States meet the same minimum standards. 
A public hearing to accept public comments will be held September 14, 2018, at 10 a.m. at the DEQ Metcalf Building, Room 111, 1520 E. Sixth Avenue, Helena. Written comments can also be submitted to DEQWUTMBRules@mt.gov or to: Attn DEQ UST Program, 1520 E. 6th Ave. Helena, MT 59620. Comments are due by September 21, 2018, at 5 p.m.
For more information or to view the proposed rules visit: http://deq.mt.gov/DEQAdmin/dir/legal/hearing Or contact DEQ at 406-444-5300 or by email at:  DEQWUTMBRules@mt.gov
Trident Seafoods Fined for Wastewater Violations
The Oregon Department of Environmental Quality has fined Trident Seafoods Inc. $43,200 for violating its wastewater discharge permit at its facility at 623 Yaquina Bay Boulevard in Newport.
The company exceeded various pollutant limits -- including oil and grease, total suspended solids and biochemical oxygen demand -- on dozens of occasions between July and October 2017. In some cases, the company exceeded its pollutant limits by well over 50% – the exceedance considered the most serious violation. DEQ previously fined the company in 2017 for similar violations.
By failing to comply with its permit requirements, the company created a risk that its wastewater discharges would negatively affect aquatic life and human health. The company has until Sept. 4 to appeal the penalty.
Gould Electronics Required to Pay for Drinking Water Lines In Atkinson, NH
Under an agreement with EPA’s New England Office, Gould Electronics Inc., has paid $1.9 million to EPA for the Agency’s costs to construct drinking water line extensions to homes with contaminated wells at the New Hampshire Dioxane Site located in Atkinson, N.H. EPA constructed the drinking water line extensions in 2014.
“This settlement demonstrates EPA’s effort to provide safe drinking water to the residents of Atkinson without taxpayers having to bear this burden alone,” said EPA New England Regional Administrator Alexandra Dunn. ”When EPA is able to recover federal cleanup costs from entities responsible for pollution, it saves taxpayer dollars.”
The site includes a residential neighborhood in Atkinson and extends to include property in Hampstead. From about 1984 to about 2004, Johnson and Johnston Associates, Inc., manufactured metal foil products for the circuit board industry here. EPA has alleged that Gould is the legal successor to Johnson and Johnston, which Gould bought in 1999.
Groundwater sampling in 2011 and 2012 by the New Hampshire Department of Environmental Services found hazardous substances, including elevated levels of 1,4 dioxane, in nearby residential drinking water wells. This synthetic industrial chemical, used as a stabilizer in solvents, can cause eye, nose, and throat irritation and is a likely human carcinogen.
In June 2013, EPA determined that groundwater contamination at the manufacturing location exceeded EPA’s acceptable standards and posed a threat to human health in the nearby drinking water wells. A response action over the next year extended a drinking water line and connected homes with residential wells containing 1,4 dioxane above the state standard.
Harvard Leadership, Professors Call on EPA To Protect America’s Health
Nearly 100 leaders in science and medicine from Harvard University have sent a letter to Acting EPA Administrator Andrew Wheeler detailing how a proposed rule titled “Strengthening Transparency in Regulatory Science” would damage America’s health. The letter represents an unprecedentedly united front amongst leading experts in law, public health, science, engineering, and medicine in taking a strong stance against a proposed federal rule.
“Transparency is valuable and important. As used in the draft rule, however, transparency is a guise for excluding large bodies of valid--and best available--science.” - Harvard science leaders on proposed rule 83 FR 18768.
The letter has been signed by people who are deeply involved in research that addresses the health impacts of chemicals and activities regulated by the EPA under its Statutes, which include the Safe Drinking Water Act and the Clean Air Act, among many others.
It adds important detail to the significant opposition mounted against the proposed rule, which would jeopardize the health of Americans by prohibiting the EPA from relying on high-quality, peer-reviewed scientific research - including most large-scale public health studies - when creating regulations.
The letter describes how the proposed rule would:
  • Block the agency from fulfilling its statutory duty to protect public health by preventing it from relying on the best available research.
  • Prevent the EPA from implementing its Statutes, including the Safe Drinking Water Act, the Clean Water Act, and the Clean Air Act, thereby jeopardizing the health and safety of infants, children, and adults in the United States and beyond.
  • Reverse the EPA’s sound practice of relying on research in public health and environmental exposure - including studies that are based on data that “cannot be made publicly available due to laws and contracts designed to protect patient privacy”.
  • Exclude valid research that cannot be repeated for ethical and humanitarian reasons, for example studies of Hiroshima and Nagasaki survivors that underlie the Safe Drinking Water Act.
  • Undermine the research community’s hard-earned methods and best practices - including peer review - for ensuring the transparency, reproducibility, replicability, objectivity, and validity of studies, analyses, models, and reports.
  • Not serve its stated purpose of ensuring that regulatory decisions are based on “valid” science, rather preventing it from relying on the best research involving human participants.
The letter states, the proposed rule “creates these multiple problems without providing any significant countervailing benefits.”
Over 340 Organizations Call on Administration to Abandon NEPA Rewrite
More than 340 public interest organizations from across the country formally submitted comments on urging the White House Council on Environmental Quality to abandon its reckless and unprecedented attempts to rewrite the implementing procedures of the National Environmental Policy Act (NEPA).
The Act, written partly in response to 1960’s highway revolts protesting the destruction of communities and ecosystems, has long been considered a bipartisan core of American environmental law. It passed the Senate unanimously when first considered. 
Raul Garcia, Earthjustice Senior Legislative Counsel, issued the following statement:
“The National Environmental Policy Act was written in response to some of the most significant environmental and civil rights issues in modern history. And yet here, in the middle of August, with limited opportunity for public input at a time when millions of Americans are on vacation, the Trump administration appears to be embarking on a sweeping rewrite of the law. Simply put, it’s unacceptable that the administration could roll back the core protections this law affords without seriously listening to the voices of all Americans.
“Instead of persisting with this sham of a rule-making process, let’s work together to strengthen environmental protections for all communities.”
America Losing the War for Clean Water
Most American rivers, streams, lakes, and ponds are seriously polluted, and getting worse, according to federal figures posted by Public Employees for Environmental Responsibility (PEER). These freshwaters increasingly are not potable or swimmable, and contain fish not fit to eat.
The latest U.S. EPA figures indicate that –
  • More than two-thirds (71%) of our lakes, reservoirs and ponds are impaired, covering more than 13 million acres, around the size of West Virginia;
  • More than half (53%) of rivers and streams are also impaired, stretching across more than 580,000 miles; and
  • Approximately 25% of rivers used for drinking water are impaired, while 22% of lakes and reservoirs that are drinking water sources are impaired.
True conditions may be much worse, as the EPA figures are based on “assessed” waters. Only 31% of rivers and streams have been assessed while only 46% of lakes, ponds, and reservoirs are monitored.
“Florida’s current water quality emergency should be a national wakeup call,” stated PEER Science Policy Director Kyla Bennett, a scientist and attorney formerly with EPA, noting that the figures also do not account for new, emerging chemicals, many of which are damaging to aquatic life but for which there are no pollution standards. “We are losing the battle to protect the quality of America’s freshwaters.”
EPA found that the main sources for river pollution are agricultural runoff and development, with pathogens, sediments, and nutrients, as the top three contaminants. Lakes and ponds, by contrast, are afflicted most by mercury, PCBs, and nutrients, and more are afflicted by atmospheric deposition.
In 2012, EPA released a new database (called “How’s My Waterway?”) which then showed similar but better water conditions. The figures are drawn from state reports submitted to EPA. Yet, EPA exerts little quality control over these reports, and reporting states often skew assessment methodologies to mask problems. Thus, states have little incentive to monitor water quality and, in many cases, have no dedicated budget for the task.
“Our current water quality system is premised on an absurd ‘no news is good news’ approach,” added PEER Executive Director Jeff Ruch, pointing with concern to EPA plans to turn greater clean water responsibilities over to states. “Many of America’s freshwaters are approaching a point of no return as functioning habitats. This is absolutely the worst moment for EPA to abandon its Clean Water Act oversight responsibilities.”
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