Coalition of 20 States Urges EPA to Retract Legally Incorrect Guidance

September 05, 2017

A coalition of 20 states and localities came together to urge the retraction of the EPA’s “legally incorrect” guidance to States regarding Clean Power Plan implementation. In addition to the guidance being wrong, EPA Administrator Scott Pruitt violated his agreement to recuse himself from the Clean Power Plan litigation because of his conflicts of interest.

In March, Administrator Pruitt sent unsolicited letters to the Governors of 47 states asserting that the Supreme Court’s stay of the Clean Power Plan pending the conclusion of litigation provides states and power companies with “day-to-day tolling” of the rule’s compliance deadlines.

In a new letter sent to EPA Acting General Counsel Kevin Minoli, the coalition of states and localities makes clear that “until and unless EPA lawfully replaces the Clean Power Plan, it remains the law of the land, despite the current stay of its compliance deadlines. Because the letters are both premature and legally incorrect, and also improper in light of Mr. Pruitt’s agreement to recuse himself from litigation over the Clean Power Plan, EPA should retract the letters.” The Attorneys General’s letter explains that, as EPA itself said last year, the proper time to decide whether it’s necessary to adjust compliance deadlines is at the conclusion of the litigation. If the Trump Administration’s efforts to scuttle the Clean Power Plan fail, the Plan—and its deadlines—will remain in effect.

“The facts are clear: the EPA has a legal obligation to limit carbon pollution from its largest source: fossil-fueled power plants. So if President Trump wants to repeal the Clean Power Plan, he must replace it,” said New York Attorney General Schneiderman. “Scott Pruitt cannot simply wish away the facts by giving Governors bad legal advice. We’ll continue to fight to ensure that the federal government fulfills its legal responsibility to New Yorkers’ health and environment.”

“The Clean Power Plan remains the law of the land. The EPA has an obligation to protect our environment and to also uphold the law,” said Maryland Attorney General Frosh. “As head of the EPA, Scott Pruitt has chosen to do neither. Scott Pruitt and the Trump Administration must end these stall tactics.”

The letter was signed by the Attorneys General or chief legal officers of New York, California, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, New Mexico, Oregon, Rhode Island, Virginia, Washington, the District of Columbia, Boulder (CO), Chicago (IL), New York City (NY), Philadelphia (PA), Broward County (FL), and South Miami (FL).

Attorney General Frosh is part of the coalition of states, cities, and counties that intervened in defense of the Clean Power Plan against legal challenges in the D.C. Circuit Court of Appeals. The court heard oral argument en banc in September 2016 and has issued two temporary pauses in litigation—the most recent of which compelled the coalition to weigh in on Administrator Pruitt’s legal guidance.

The coalition’s letter notes that there are two significant problems with Administrator Pruitt’s legal guidance to Governors: one, there is no legal support for a unilateral extension of regulatory deadlines through a letter from the EPA administrator; and, two, there is no legal basis to automatically extend the Clean Power Plan’s compliance deadlines—which are months or even years away—for every day that the litigation remains pending. In fact, EPA itself found earlier this year that power plants are well on their way to meeting their compliance obligations.

“In addition to being legally erroneous, Mr. Pruitt’s opining in the letters on a particular issue concerning the Clean Power Plan litigation is inconsistent with his agreement not to participate in the litigation in light of his representation of Oklahoma in the case. Given his recognition in the May 4, 2017, ethics memorandum that his recusal for one year is appropriate to prevent “any appearance of impropriety,” the same underlying concern would apply to the letters, in which he seeks to persuade the Governors of his view of how a stay issued in the course of the litigation should affect parties’ future compliance responsibilities,” the coalition writes.

Commuters’ Exposures to Air Pollution Greatly Depends on Mode of Travel

The mode of travel you take on your daily work commute can make a big difference in your exposure to air pollution, a new study finds.

The study, “Commuter exposure to PM2.5, BC, and UFP in six common transport microenvironments in Sacramento, California,” conducted by researchers at the California Air Resources Board (CARB), was published recently in Atmospheric Environment, a prestigious scientific journal in the field of air pollution.

The researchers concluded that electricity-powered light rail trains offer the least polluted travel environment, while commute trips by older technology diesel-powered trains experienced the highest average air pollution levels in Sacramento. Average concentrations of particulate matter and black carbon were statistically similar for cars, buses, and bicycle trips, and in between the levels found in the two types of train commutes. Since the average car and public transport trips are much faster than bicycle trips, they may offer shorter exposure durations; however, cycling has significant health benefits.

The study measured air pollution exposures to harmful traffic-related air pollutants during a variety of travel modes to and from CARB headquarters in downtown Sacramento. The researchers developed an innovative air pollution measurement backpack with state-of-the-science pollution sensors, and recruited volunteers to collect data during their daily commute trips. The backpacks measure personal exposure to three air pollutants: particle pollution that can be inhaled deep into the lungs and then be absorbed into the bloodstream, including tiny particles measuring 2.5 micrometers or less (PM2.5) in diameter; and even smaller ‘ultrafine’ particles (UFP); and soot from diesel engines and other combustion sources, known as black carbon (BC). Commute modes included travel by car, bus, light rail, train, and bicycle.

Exposure to airborne particles is a serious public health concern. CARB calculates that PM2.5 exposure from all sources in California is associated with an estimated 7,200 premature deaths, 1,900 hospitalizations, and 5,200 emergency room visits each year.

The study also compared air pollution exposure per mile for each mode, a useful metric for people to use when selecting a travel mode that offers the lowest air pollution exposure for their individual commute. Light rail commutes had the lowest average exposure per mile for all measured pollutants, and car trips experienced marginally higher per mile exposure, whereas train commutes with older diesel technologies experienced the largest exposure per mile of all of the motorized transportation commute modes. The study also offers advice for reducing exposure to air pollution during commute trips:

Car travelers can reduce their personal exposure to PM2.5, ultrafine particles, and black carbon by up to 75% by operating the air conditioner on recirculate mode
Bicycle commuters can reduce exposures by between 15 and 75% by choosing dedicated bicycle pathways away from traffic sources
Older technology diesel-powered train commute trips where the locomotive engine was pushing the rail cars experienced up to 90% lower ultrafine particle concentrations than ones where the locomotive engine was pulling the cars

The study took place from April 2014 to November 2015. Since then, the Capitol Corridor Joint Powers Authority has introduced California-built Siemens Charger Clean Diesel-Electric Locomotives on Sacramento’s Capitol Corridor route and begun testing of cleaner-burning renewable diesel fuel. These new technologies reduce particle emissions by about 90%. This transformation is part of a statewide effort led by the California State Transportation Agency (CalSTA) to modernize California’s intercity, commuter, and urban rail systems to improve services, increase safety, and reduce harmful pollutant emissions.

“The study has useful implications for our efforts to link transportation and land use planning to develop more sustainable communities. One important finding is the need for more light rail and dedicated bike paths, as well as cleaner locomotives,” CARB Research Division Chief Bart Croes said. “In addition, the portable technologies we employed to monitor air pollution levels in this project provide us with an important new tool for studying personal exposures and locating air pollution hotspots in disadvantaged communities and elsewhere.”

Pennsylvania Air Emissions Inventory for Unconventional Natural Gas Operations Released

According to the Pennsylvania Department of Environmental Protection’s (DEP) 2015 inventory of air emissions for the unconventional natural gas operation industry, emissions of methane and volatile organic compounds (VOCs) from unconventional well sites and mid-stream reporting facilities increased from 2014 emission levels, while several other pollutants including nitrogen oxides (NOx), sulfur dioxide (SOx), and particulate matter (PM2.5) all saw decreases from 2014 emission levels.

The inventory represents 2015 emissions from unconventional natural gas production and processing operations as well as compressor stations that receive gas from conventional and unconventional well sites and coal gas. Air emissions from the industry are required to be reported to DEP under Pennsylvania’s Air Pollution Control Act.

“The inventory presents a mixed picture of emissions from the unconventional natural gas industry” said DEP Secretary Patrick McDonnell. “Certain pollutants are decreasing as best practices are implemented more widely through the industry, while others—including methane, a potent greenhouse gas—continue to increase, underscoring the need to do more to detect and fix leaks in order to reduce emissions.”

Production from unconventional gas wells increased significantly, from 4.1 trillion cubic feet of gas in 2014 to 4.6 trillion cubic feet in 2015.

“While methane emissions increased in 2015, other harmful pollutants like nitrogen oxides (NOx), sulfur dioxide (SOx) and particulate matter (PM2.5) all saw decreases from 2014 emission levels,” said McDonnell.

The data reported for six major categories of contaminants are provided below:

Unconventional Natural Gas Emissions by Year

Expressed in Tons per Year

Year	Well Sites Reporting	Mid-stream Facilities Reporting	Nitrogen Oxides (NO_x)	Particulate Matter (PM_2.5)	Sulfur Oxides (SO_x)	Volatile Organic Compounds (VOC)	Methane(CH₄)
2011	9,037	150	16,542	489	122	2,820	NA
2012	8,962	453	16,304	557	99	3,606	122,589
2013	10,275	447	17,616	609	157	4,776	107,815
2014	10,010	508	21,423	812	257	5,961	107,735
2015	10,287	534	20,090	630	176	6,410	112,128

Even though the total tons of methane reported increased due mainly to the increase in the number of sources, the average emission per facility is staying relatively level. The average methane reported from each mid-stream compressor station decreased from 106.9 tons in 2012 to 97.5 tons in 2015. The average emission per well site was 8.3 tons in 2012 and 5.8 tons in 2015. Year to year changes in other emissions are related to a variety of factors, including where wells are drilled and types of equipment being used.

DEP has proposed changes to the general permits for new well sites and compressor stations that would reduce methane emissions from these sites and facilities. A comment period on the proposed changes closed on June 5, 2017. More than 10,000 comments have been received on the proposed permits. The proposed changes include increased leak detection and repair frequency, a specific methane emission threshold for the installation of additional control and added requirements for additional sources.

DEP began collecting emissions data from owners and operators of unconventional natural gas sources in 2011. In 2012, DEP expanded the data reporting requirement to include mid-stream compressor stations that support the conventional natural gas industry. DEP again expanded the reporting requirements in 2013 to include data from mid-stream compressor stations that support coal-bed methane formations. In 2015, DEP required pigging stations to be reported. The figures presented are calculated based on the estimated emissions of the equipment on site, per manufacturer specifications.

In addition to compressor stations, other sources and activities of natural gas operations that DEP identified as part of the inventory include dehydration units; drill rigs; fugitive emission sources, such as connectors, flanges, pump lines, pump seals and valves; heaters; pneumatic controllers and pumps; stationary engines; tanks, pressurized vessels and impoundments; venting and blowdown systems; well heads and well completions.

Denmakes Enterprises Fined $132,183 for Mishandling Anhydrous Ammonia

A Lynn, Massachusetts, company that uses ammonia in its refrigeration system has come into compliance with federal environmental laws after the EPA found the company was operating in violation of clean air and federal right-to-know laws and putting employees and the public in danger.

Demakes Enterprises of 37 Waterhill St. owns and operates a meat processing, cooking, packaging, and storage facility and sells products, in part, under the “Thin ‘n Trim” and “Old Neighborhood” labels. As part of resolving the violations identified by EPA, the company spent about $300,000 on safety upgrades and other measures to come into compliance with the Clean Air Act, as well as the federal Emergency Planning and Community Right-to-Know Act. In an agreement signed with EPA’s New England office, the company also said it would pay a penalty of $132,183 to resolve the violations.

The company violated a part of the Clean Air Act known as the General Duty Clause in its widespread mishandling of anhydrous ammonia. The company violated the right to know law by failing to accurately report the amount of ammonia used in the facility, as well as failing to report sulfuric acid present in the facility.

The General Duty Clause, or Section 112(r) of the Clean Air Act, aims to reduce the risk of chemical accidents. Ammonia presents a significant health hazard because it is corrosive to the skin, eyes, and lungs. Ammonia is also flammable at high concentrations. It can explode if released in an enclosed space with a source of ignition, or if a vessel with anhydrous ammonia is exposed to fire. As a result of these dangers, the ammonia refrigeration industry has developed standards and guidelines for the design and operation of ammonia refrigeration systems.

The case stems from a 2014 inspection by EPA’s New England office, as well as from information received by EPA after that. EPA inspectors found numerous potentially dangerous conditions related to in the ammonia refrigeration system, including insufficient emergency plans, insufficient labeling of ammonia control valves and piping, lack of alarms and other safety equipment, failures to test/maintain/replace safety equipment, lack of proper ventilation, and obstructed access to system equipment.

The General Duty Clause of the Clean Air Act requires that owners and operators of stationary sources that produce, process, handle, or store extremely hazardous substances follow a set of rules, including identifying hazards that may result from accidental releases; designing and maintaining a safe facility, taking steps necessary to prevent releases; and minimizing the consequences of accidental releases.

Demakes failed to report sulfuric acid from lead-acid batteries in 2013 as required by EPCRA’s Tier II report, although over 500 lb of sulfuric acid were stored at the facility. Demakes also under-reported its inventory of anhydrous ammonia. Demakes reported a maximum quantity of 3,000 lb in 2013, although information documented that there were at least 6,275 lb of ammonia.

Demakes has since provided information on how it addressed the conditions and it is now in compliance with both laws. This settlement is expected to encourage compliance by the regulated community with the Clean Air Act’s General Duty Clause requirements to prevent potential harms relating to the operation of ammonia refrigeration systems. Enforcement of the community right-to-know reporting requirements will ensure that the community is not deprived of its right to know about chemical releases that may affect public health and the environment.

Ecology Assesses Penalty for PUREX Powder

The U.S. Department of Energy (DOE) and a cleanup contractor on the Hanford Nuclear Reservation face a $16,000 penalty for failing to identify white powder found in the long-shuttered PUREX plutonium production plant. The Washington State Department of Ecology (Ecology) assessed the penalty after trying for more than a year to get the powder identified.

Before it was closed down in the 1980s, the PUREX plant produced a substantial portion of the plutonium used in the nation’s nuclear weapons arsenal. It is adjacent to the PUREX Tunnel 1 that partially collapsed in May, but the unidentified white powder and resulting penalty are not related to the tunnel collapse.

The white powder was documented by CH2M Hill Plateau Remediation Company (CHPRC) in May 2015 and was still there during an Ecology inspection that began in April 2016. As a result of that inspection, Ecology directed the company to identify the powder observed on the floor and equipment and, if it is hazardous, make a plan to clean it up. Instead, DOE responded that inside PUREX, the powder posed no threat to people or the environment, and declined to identify the powder.

In November 2016, Ecology cited DOE and CHPRC with a violation for failing to identify the powder. Since then, despite ongoing discussion and urging by Ecology, DOE and CHPRC have refused to identify the powder or take any action to clean it up. In April 2017 Ecology re-inspected and documented that no action had been taken.

“If this powder is a dangerous waste, it’s important to clean it up before it spreads further,” says John Price, the compliance section manager for Ecology’s Nuclear Waste Program. “We want to avoid delays that cause a bigger cleanup with increased worker risks and higher costs.”

Fileminders Failed to Close Illegal Cesspool

The EPA recently announced a settlement with Fileminders of Hawaii, LLC, requiring the company to close a large-capacity cesspool at its Kapolei facility on Oahu. Cesspools can contaminate groundwater, and large-capacity cesspools have been banned since 2005.

In May 2016, EPA inspected the Fileminders facility, a records storage company in the Campbell Industrial Park, and found one large-capacity cesspool (LCC) in use. EPA regulations under the Safe Drinking Water Act required closure of all existing LCCs by April 5, 2005.

Fileminders, the operator of the cesspool, and Hawaii MMGD, the company’s owner, will pay a civil penalty of $122,000 for violating the Safe Drinking Water Act. In June, the cesspool was closed and the company installed an individual wastewater system.

“Closing large cesspools is essential to protecting Hawaii’s drinking water and coastal resources,” said Alexis Strauss, EPA’s Acting Regional Administrator for the Pacific Southwest. “EPA’s large-capacity cesspool inspection and enforcement efforts will continue until illegal cesspools are a distant memory.”

An LCC is a cesspool that serves multiple residential dwellings or a commercial facility with the capacity to serve 20 or more people per day. Cesspools collect and discharge waterborne pollutants like untreated raw sewage into the ground, where disease-causing pathogens can contaminate groundwater, streams, and the ocean.

Cesspools are used more widely in Hawaii than in any other state, despite the fact that 95% of all drinking water in Hawaii comes from groundwater sources. Over 3,400 large-capacity cesspools have been closed statewide, many through voluntary compliance.

EPA Honors Environmental Educators and Students

The EPA recently honored 12 educators and more than 75 students for their exceptional contributions to environmental education and stewardship.

The agency gave awards to the winners of the Presidential Innovation Award for Environmental Educators (PIAEE) and the President’s Environmental Youth Award (PEYA), at a series of events in Washington, D.C.

“Through their work, these impressive educators and students demonstrate how community partnerships—between schools, business and government—can build and sustain environmental change,” said EPA Administrator Scott Pruitt. “Together, EPA and our partners are working to improve environmental literacy across the nation.”

The events featured speakers from the National Oceanic and Atmospheric Administration, Toyota’s North American Environmental Sustainability Programs, and the North American Association for Environmental Education.

“The educators being honored provide the foundation from which the next generation of environmental leaders will grow,” said acting NOAA Administrator Ben Friedman. “It is also heartening to recognize the achievements of the student winners, who will undoubtedly unleash more innovation in the future and serve as role models to their peers.”

The PIAEE awards recognize innovative educators who bring environmental education into their classrooms through hands-on, experiential approaches.

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