DOE Advisory Board Releases Shale Gas Recommendations

The Secretary of Energy Advisory Board Subcommittee released a series recommendations today calling for increased measurement, public disclosure and a commitment to continuous improvement in the development and environmental management of shale gas, which has rapidly grown to nearly 30 percent of natural gas production in the United States.

Increased transparency and a focus on best practices “benefits all parties in shale gas production: regulators will have more complete and accurate information, industry will achieve more efficient operations and the public will see continuous, measurable, improvement in shale gas activities,” the report says.

The report calls for industry leadership in improving environmental performance, underpinned by strong regulations and rigorous enforcement, evolving to meet the identified challenges.

The report was prepared by the Secretary of Energy Advisory Board Shale Gas Production Subcommittee. Chaired by Deutch, an MIT professor, it was convened by Secretary of Energy Steven Chu at the direction of President Barack Obama who observed that “recent innovations have given us the opportunity to tap large reserves—perhaps a century’s worth” of shale gas.

The subcommittee was tasked with producing a report on the immediate steps that can be taken to improve the safety and environmental performance of shale gas development. The report reflects three months of deliberations among a diverse group of industry experts, environmental advocates, academics and former state regulators.

The report includes recommendations in four key areas:

1. Making information about shale gas production operations more accessible to the public

The report calls for the full disclosure of all chemicals used in fracturing fluids. While the committee agrees with the prevailing view that the risk of leakage of fracturing fluids through fractures made in deep shale reserves is remote where there are is large separation from drinking water, the report finds that there is no economic or technical reason to prevent public disclosure of all chemicals used in fracturing fluids.

It also calls for the creation of a national database of all public information made about shale gas. Assembling the data, which are currently dispersed in perhaps a hundred different locations, in a comparable format would permit easier access by all interested parties.

The report recommends government funding support for existing, multi-stakeholder mechanisms such as the non-profit Ground Water Protection Council’s Risk Based Data Management System and the State Review of Oil and Natural Gas Environmental Regulation. Encouraging such multi-stakeholder mechanisms will strengthen regulation and improve efficiency, the report finds.

2. Immediate and longer-term actions to reduce environmental and safety risks of shale gas operations, with a particular focus on protecting air and water quality

Air Quality:

The report says that measures should be taken to reduce emissions on air pollutants, ozone precursors and methane as quickly as practicable and supports prompt adoption of standards to reduce emissions of all air contaminants.

The subcommittee recommends the design and rapid implementation of measurement systems to collect comprehensive methane and other air emissions data from shale gas operations.

The subcommittee also recommends that a federal interagency planning effort be launched immediately to acquire data and analyze the overall greenhouse gas footprint of shale gas operations throughout the lifecycle of natural gas use in comparison to other fuels.

Water Quality:

The report urges the adoption of a systemic approach to water management based on consistent measurement and public disclosure. Companies should measure and publicly report the composition of water stocks and flow throughout the process; manifest all transfers of water among different locations; and makes recommendations about best practices in well development and construction, especially casing and cementing. Likewise, agencies should review and modernize their rules to ensure they are fully protective of both groundwater and surface water.

The findings also recommend additional field studies on methane leakage from hydrofractured wells to water reservoirs and the adoption of requirements for background water quality measurements to record existing methane levels in nearby water wells prior to drilling.

3. Creation of a Shale Gas Industry Operation organization committed to continuous improvement of best operating practices

A more systemic approach by the shale gas industry based on best practices—recognized as improvements to techniques and methods over time based on measurement and field experience—is an important way to achieve better operational and environmental outcomes, the report finds.

The report envisions the creation of a national organization, with external stakeholders, dedicated to continuous improvement of best practice through the development and diffusion of standards and the assessment of member compliance. The organization would likely work through regional subgroups.

4. Research and development (R&D) to improve safety and environmental performance

The report finds that, while the majority of shale gas R&D will be performed by the oil and gas industry, there is a role for the federal government.

The report recommends that the administration set an appropriate mission for shale gas R&D and level funding, with a particular focus on efficiency of water use and other improvements to enhance environmental objectives. (DOE)

White House Efficiency Standards for Heavy Trucks & Buses

Today, President Obama announced fuel efficiency and greenhouse gas pollution standards for work trucks, buses, and other heavy duty vehicles. The U.S. Department of Transportation (DOT) and the U.S. Environmental Protection Agency (EPA) developed the standards in close coordination with truck and bus manufacturing companies. The cost savings for American businesses are on top of the $1.7 trillion that American families will save at the pump from the historic fuel-efficiency standards announced by the Obama Administration for cars and light duty trucks, including the model year 2017-2025 agreement announced by the president last month.

For heavy-duty pickup trucks and vans, separate standards are required for gasoline-powered and diesel trucks. These vehicles will be required to achieve up to approximately 15 percent reduction in fuel consumption and greenhouse gas emissions by model year 2018. Under the finalized standards a typical gasoline or diesel powered heavy-duty pickup truck or van could save one gallon of fuel for every 100 miles traveled.

Vocational vehicles – including delivery trucks, buses, and garbage trucks – will be required to reduce fuel consumption and greenhouse gas emissions by approximately 10 percent by model year 2018. These trucks could save an average of one gallon of fuel for every 100 miles traveled.

Under the comprehensive new national program, trucks and buses built in 2014 through 2018 will reduce oil consumption by a projected 530 million barrels and greenhouse gas (GHG) pollution by approximately 270 million metric tons. Like the administration’s historic car standards, this program – which relies heavily on off-the-shelf technologies – was developed in coordination with truck and engine manufacturers, fleet owners, the State of California, environmental groups and other stakeholders.

The joint DOT/EPA program will include a range of targets which are specific to the diverse vehicle types and purposes. Vehicles are divided into three major categories: combination tractors (semi-trucks), heavy-duty pickup trucks and vans, and vocational vehicles (like transit buses and refuse trucks). Within each of those categories, even more specific targets are laid out based on the design and purpose of the vehicle. This flexible structure allows serious but achievable fuel efficiency improvement goals charted for each year and for each vehicle category and type.

The standards are expected to yield an estimated $50 billion in net benefits over the life of model year 2014 to 2018 vehicles, and to result in significant long-terms savings for vehicle owners and operators. A semi-truck operator could pay for the technology upgrades in under a year and realize net savings of $73,000 through reduced fuel costs over the truck’s useful life. These cost saving standards will also reduce emissions of harmful air pollutants like particulate matter, which can lead to asthma, heart attacks and premature death.

By the 2018 model year, the program is expected to achieve significant savings relative to current levels, across vehicle types. Certain combination tractors – commonly known as big-rigs or semi-trucks – will be required to achieve up to approximately 20 percent reduction in fuel consumption and greenhouse gas emissions by model year 2018, saving up to 4 gallons of fuel for every 100 miles traveled.

Beyond the direct benefits to businesses that own and operate these vehicles, the program will also benefit consumers and businesses by reducing costs for transporting goods, and spur growth in the clean energy sector by fostering innovative technologies and providing regulatory certainty for manufacturers. (EPA)

More information is available on EPA’s website

and on NHTSA’s website:

CONTRACT FOR THE AMERICAN DREAM

On Monday afternoon, MoveOn.org and Rebuild the Dream announced a campaign to build up a popular movement that could match (if not surpass) the debt reduction crowd in both size and energy. And they have borrowed a concept from former House Speaker Newt Gingrich (R-Ga.) as their organizing principle.

Van Jones

The campaign, led by Van Jones, President of Rebuild the Dream; Justin Ruben, Executive Director of MoveOn.org; and Rep. Jan Schakowsky (D-Ill.), among others, is debuting a new Contract for the American Dream. They describe it as "a progressive economic vision crafted by 125,000 Americans … to get the economy back on track." Its debut will involve a nationwide day of action, as well as an ad in The New York Times to run sometime this week. (Huffington Post, 8/8/2011)

We, the American people, promise to defend and advance a simple ideal: liberty and justice... for all. Americans who are willing to work hard and play by the rules should be able to find a decent job, get a good home in a strong community, retire with dignity and give their kids a better life. Every one of us – rich, poor or in-between, regardless of skin color or birthplace, no matter their sexual orientation or gender – has the right to life, liberty and the pursuit of happiness. That is our covenant, our compact, our contract with one another. It is a promise we can fulfill – but only by working together.

Today, the American Dream is under threat. Our veterans are coming home to few jobs and little hope on the home front. Our young people are graduating off a cliff, burdened by heavy debt, into the worst job market in half a century. The big banks that American taxpayers bailed out won’t cut homeowners a break. Our firefighters, nurses, cops and teachers – America’s everyday heroes – are being thrown out onto the street.

We believe:

AMERICA IS NOT BROKE. America is rich – still the wealthiest nation ever. But too many at the top are grabbing the gains. No person or corporation should be allowed to take from America while giving little or nothing back. The superrich who got tax breaks and bailouts should now pay full taxes – and help create jobs here, not overseas. Those who do well in America should do well by America.

AMERICANS NEED JOBS, NOT CUTS. Many of our best workers are sitting idle, while the work of rebuilding America goes undone. Together, we must rebuild our country, reinvest in our people and jump-start the industries of the future. Millions of jobless Americans would love the opportunity to become working, tax-paying members of their communities again. We have a jobs crisis, not a deficit crisis.

To produce this Contract for the American Dream, 131,203 Americans came together online and in their communities. We wrote and rated 25,904 ideas. Together, we identified the 10 most critical steps to get our economy back on track and restore the American Dream:

1. INVEST IN AMERICA’S INFRASTRUCTURE.

Rebuild our crumbling bridges, dams, levees, ports, water and sewer lines, railways, roads and public transit. We must invest in high-speed Internet and a modern, energy-saving electric grid. These investments will create good jobs and rebuild America. To help finance these projects, we need national and state infrastructure banks.

2. CREATE 21ST-CENTURY ENERGY JOBS.

We should invest in American businesses that can power our country with innovative technologies like wind turbines, solar panels, geothermal systems, hybrid and electric cars, and next-generation batteries. And we should put Americans to work making our homes and buildings energy efficient. We can create good, green jobs in America, address the climate crisis, and build the clean energy economy.

3. INVEST IN PUBLIC EDUCATION.

We should provide universal access to early childhood education, make school funding equitable, invest in high-quality teachers, and build safe, well-equipped school buildings for our students. A high-quality education system, from universal preschool to vocational training and affordable higher education, is critical for our future and can create badly needed jobs now.

4. OFFER MEDICARE FOR ALL.

We should expand Medicare so it’s available to all Americans, and reform it to provide even more cost-effective, quality care. The Affordable Care Act is a good start and we must implement it – but it’s not
enough. We can save trillions of dollars by joining every other industrialized country – paying much less for health care while getting the same or better results.

5. MAKE WORK PAY.

Americans have a right to fair minimum and living wages, to organize and collectively bargain, to enjoy equal opportunity and to earn equal pay for equal work. Corporate assaults on these rights bring down wages and
benefits for all of us. They must be outlawed.

6. SECURE SOCIAL SECURITY.

Keep Social Security sound, and strengthen the retirement, disability, and survivors’ protections Americans earn through their hard work. Pay for it by removing the cap on the Social Security tax, so that upperincome
people pay into Social Security on all they make, just like the rest of us.

7. RETURN TO FAIRER TAX RATES.

End, once and for all, the Bush-era tax giveaways for the rich, which the rest of us – or our kids – must pay eventually. Also, we must outlaw corporate tax havens and tax breaks for shipping jobs overseas. Lastly, with millionaires and billionaires taking a growing share of our country’s wealth, we should add new tax brackets for those making more than $1 million each year.

8. END THE WARS AND INVEST AT HOME.

Our troops have done everything that’s been asked of them, and it’s time to bring them home to good jobs here. We’re sending $3 billion each week overseas that we should be investing to rebuild America.

9. TAX WALL STREET SPECULATION.

A tiny fee of 1/20th of 1% on each Wall Street trade would raise tens of billions of dollars annually with little impact on actual investment. This would reduce speculation, “flash trading,” and outrageous bankers’ bonuses – and we’d have a lot more money to spend on Main Street job creation.

10. STRENGTHEN DEMOCRACY.

We need clean, fair elections – where no one’s right to vote can be taken away, and where money doesn’t buy you your own member of Congress. We must ban anonymous political influence, slam shut the lobbyists’ revolving door in D.C. and publicly finance elections. Immigrants who want to join in our democracy deserve
a clear path to citizenship. We must stop giving corporations the rights of people when it comes to our elections. And we must ensure our judiciary’s respect for the Constitution. Together, we will reclaim our democracy to get our country back on track

"Halliburton Loophole" Challenged By House Democrats

Top House Energy and Commerce Committee Democrats want to limit the "Halliburton Loophole" that exempts the natural-gas drilling method known as hydraulic fracturing from Safe Drinking Water Act rules.

The Energy Policy Act of 2005 exempts fracking from the drinking water law’s underground injection rules unless diesel fuels are used — a provision critics refer to as the Halliburton loophole after the oil services company once headed by former Vice President Cheney.

Reps. Henry Waxman (D-Calif.), Edward Markey (D-Mass.), Reps. Diana DeGette (D-Colo.) and Rush Holt (D-N.J.).wrote to Environmental Protection Agency Administrator Lisa Jackson Monday as the agency weighs how to handle permitting for "fracking" operations that inject diesel fuels underground.  The letter states:

"We encourage you to adopt a definition of 'diesel fuel' that is broad enough to protect human health and to address the specific reason why Congress singled out diesel fuel in the law —because it often contains benzene, toluene, ethylbenzene and xylenes (the BTEX compounds)."

EPA is preparing a study on hydraulic fracturing and will ulitimate issue "guidance" on how to handle permitting for cases when diesel is used.  The lawmakers are pressing the agency to ensure the definition of "diesel fuel" is written broadly, noting in their letter that "the way in which EPA defines this term has far-reaching consequences."

Waxman is the top Democrat on the Energy and Commerce Committee and DeGette is the ranking member of the panel’s Oversight and Investigations subcommittee. Markey is a senior member of the Energy panel and is also ranking Democrat on the Natural Resources Committee, and Holt is ranking Democrat on the Energy and Mineral Resources subcommittee.

Fracking involves high-pressure injections of chemicals, water and sand to break apart rock formations and enable trapped gas to flow.  The increasingly common technique is enabling a U.S. natural-gas production boom as drillers tap gas from shale rock formations in several states. But fracking is bringing concerns about water contamination along with it.

The Waxman-Markey letter to EPA also states:

How “diesel fuel” is defined is a vital issue as the agency crafts guidance for permitting diesel fuel use for hydraulic fracturing. Since federal law contains no public disclosure requirements for hydraulic fracturing fluids, this guidance offers an opportunity to clarify permitting requirements and increase consistency and transparency of program implementation in a way that serves to protect public health and drinking water supplies. We urge you to craft a definition that provides consistency to industry while serving to protect public health and the environment.

(The Hill, 8/8/2011)

Federal Gov Has Turned Nuclear Waste Into Another Debt

Norris McDonald at Yucca Mountain

The Nuclear Waste Policy Act of 1982 has created another unfunded liability, starting with a $25 billion ratepayer fund gone astray and $16 billion or more in estimated legal judgments to compensate utilities for their storage expenses. The costs of the ultimate disposal project also are sure to rise, with no plan in sight to replace the now-canceled plan to entomb the waste at Nevada's Yucca Mountain.

When the federal government took responsibility for nuclear-waste disposal three decades ago, the 1982 law required nuclear utilities to shoulder the cost through an annual fee paid to the federal government. The fee was to be deposited in a newly created Nuclear Waste Fund that the U.S. Department of Energy could tap to fund the storage project. The fee, which ultimately comes from nuclear-electricity customers as a surcharge of 1/10th of a cent per kilowatt hour, now amounts to about $750 million a year. Counting past expenditures and interest earned, the fund's balance is about $25 billion.

But that cash doesn't really exist. Since the Balanced Budget and Emergency Deficit Control Act of 1985, Congress and successive administrations have changed the plan so that the fees paid by utilities essentially are treated like taxes and go into the government's general coffers.
The project's funding arrangement is fundamentally broken and reforming it is absolutely essential.

It sounds like there's a piggy bank and there's all this money that is available for a future nuclear] repository, but there isn't. Congress has spent it on other things. The $25 billion amounts to little more than a federal IOU that will need to be repaid. At the same time, the nuclear-waste program was required to compete with other programs for annual appropriations from Congress. The bottom line: Spending on the program is counted against the deficit, instead of the self-funding intended in the original law.

Because the government failed to start taking spent fuel as promised beginning in 1998, utilities are suing it to cover their additional storage costs. Federal officials have estimated it will cost $16.2 billion to pay legal judgments owed to utilities by 2020—assuming the U.S. is able to start taking waste from utilities starting then—and $500 million a year after that.

One of the panel's proposals was to cut the annual fees collected from utilities to match the level of federal spending on the program. Uncollected funds would go into utility-run trust funds, to be tapped when needed for the waste project. That would put the project onto sounder fiscal footing, the panel said, but would add to the near-term federal deficit because some of the utility fees wouldn't be counted as current revenue. Still, the panel draft report said, "the bill will come due at some point," because the government is contractually bound to remove the spent fuel.

The Department of Energy is being sued with plaintiffs seeking to suspend collection of the annual fees utilities pay into the waste fund, believing that there is no need to pay a fee if you're not getting a program for it.

Other legal challenges to President Obama's decision to kill Yucca Mountain are pending. The Energy Department in 2008 estimated that building the Yucca Mountain facility and then transferring waste to it would cost $83 billion in 2007 dollars, on top of the $13.5 billion already spent.  If the plan is dead and the government has to find a new site, the ultimate cost almost certainly will rise. (WSJ, 8/9/2011)

$967 Million DOE Loan Guarantee For Arizona Solar Project

U.S. Energy Secretary Steven Chu today announced that the Department of Energy finalized a $967 million loan guarantee to Agua Caliente Solar, LLC. The loan guarantee will support the construction of the Agua Caliente Solar project, a 290-megawatt photovoltaic solar generating facility in Yuma County, Arizona that will use thin film solar panels manufactured by First Solar, Inc. The project sponsor, NRG Solar LLC, estimates the photovoltaic generation facility will fund approximately 400 construction jobs and 10 full time operating jobs, and will be one of the largest plants of its kind in the world when completed.

The Agua Caliente Solar project will deploy fault ride-through and dynamic voltage regulation, innovative technologies that are new to photovoltaic solar power plants in the United States. These technologies will improve the reliability and predictability of the electricity supplied to the electricity grid. Pacific Gas & Electric Company will purchase power generated from the project and will deliver clean, renewable electricity to California consumers.

The Department of Energy’s Loan Programs Office administers three separate programs: the Title XVII Section 1703 and Section 1705 loan guarantee programs, and the Advanced Technology Vehicle Manufacturing (ATVM) loan program. The loan guarantee programs support the deployment of commercial technologies along with innovative technologies that avoid, reduce, or sequester greenhouse gas emissions, while ATVM supports the development of advanced vehicle technologies. Including all three programs, DOE has issued loans, loan guarantees or offered conditional commitments for loan guarantees totaling over $40 billion to support 42 clean energy projects across the U.S. DOE has issued conditional commitments or loan guarantees to support numerous projects, including several of the world’s largest solar generation facilities, three geothermal projects, the world’s largest wind farm, and the nation’s first new nuclear power plant in three decades. For more information, please visit the Loan Programs Office website. (DOE, 8/5/2011)

China: 'Every Right To Demand' US Tackle Debt

China's Response To Standard & Poor's Rating

China, the world's largest holder of US debt, condemned the "short-sighted" political wrangling in the US and said the world needed a new and stable global reserve currency.

In a comment article the official Xinhua news agency said China had

"every right now to demand the United States address its structural debt problems and ensure the safety of China's dollar assets. International supervision over the issue of US dollars should be introduced and a new, stable and secured global reserve currency may also be an option to avert a catastrophe caused by any single country."

(Guardian UK, 8/6/2011)

S&P Downgrades Credit Rating of the United States

Research Update: United States of America Long-Term Rating Lowered To 'AA+' On Political Risks And Rising Debt Burden; Outlook Negative

The Report

Overview

· S&P lowered their long-term sovereign credit rating on the United States of America to 'AA+' from 'AAA' and affirmed the 'A-1+' short-term rating.

· S&P also removed both the short- and long-term ratings from CreditWatch negative.

· The downgrade reflects S&P's opinion that the fiscal consolidation plan that Congress and the Administration recently agreed to falls short of what, in their view, would be necessary to stabilize the government's medium-term debt dynamics.

· More broadly, the downgrade reflects S&P's view that the effectiveness, stability, and predictability of American policymaking and political institutions have weakened at a time of ongoing fiscal and economic
challenges to a degree more than we envisioned when we assigned a negative outlook to the rating on April 18, 2011.

· Since then, S&P has changed their view of the difficulties in bridging the gulf between the political parties over fiscal policy, which makes S&P pessimistic about the capacity of Congress and the Administration to be
able to leverage their agreement this week into a broader fiscal consolidation plan that stabilizes the government's debt dynamics any time soon.

· The outlook on the long-term rating is negative. S&P could lower the long-term rating to 'AA' within the next two years if they see that less reduction in spending than agreed to, higher interest rates, or new fiscal pressures during the period result in a higher general government debt trajectory than they currently assume in their base case.

Rating Action

On Aug. 5, 2011, Standard & Poor's Ratings Services lowered its long-term sovereign credit rating on the United States of America to 'AA+' from 'AAA'.

The outlook on the long-term rating is negative.

S&P Rationale & Comparison To Other Sovereigns

When comparing the U.S. to sovereigns with 'AAA' long-term ratings that we view as relevant peers--Canada, France, Germany, and the U.K.--we also observe, based on our base case scenarios for each, that the trajectory of the U.S.'s net public debt is diverging from the others. Including the U.S., we estimate that these five sovereigns will have net general government debt to GDP ratios this year ranging from 34% (Canada) to 80% (the U.K.), with the U.S. debt burden at 74%. By 2015, we project that their net public debt to GDP ratios will range between 30% (lowest, Canada) and 83% (highest, France), with the U.S. debt burden at 79%. However, in contrast with the U.S., we project that the net public debt burdens of these other sovereigns will begin to decline, either before or by 2015.

(Standard & Poor's)

"Diary Of An Environmentalist: Norris McDonald Autobiography"

Purchase Book

Book Description

My name is Norris McDonald and I am an environmentalist. I was the first black environmentalist to work as a professional in the Washington, D.C-based environmental movement. Part of me tires of the 'first black' moniker, but I guess it is still important in the context of America's history. I hope to also provide some insight into the history of the environmental movement and the environmental justice movement. I formed the Center for Environment, Commerce & Energy and its outreach arm, the African American Environmentalist Association in 1985.

I started as a young man in his mid twenties and now I am a man in his mid fifties. I went looking for a job on Capitol Hill in 1979 after I graduated from Wake Forest University. I answered an ad in The Washington Post to work for an environmental group. It was two blocks from Capitol Hill so I figured it would be a good stepping stone to getting a job in a congressional office. I was just delighted to be in the political power center of the world. I had no idea at that time that I would make a career out of working on environmental and energy issues.

Now I have been working as an environmentalist for over 30 years. I have been committed to be a good steward to our planet and to work for improvements in local neighborhoods. It has been gratifying and I am delighted to have found my calling in life. Of course, life throws you curve balls that make it interesting. I did not anticipate becoming a chronic, acute asthmatic and a single parent. Plus, my personal worldview has probably limited my success, but I would not change it because it is rooted in my belief in God.

This book is dedicated to my father, Sandy Norris McDonald, Sr., my mother Katie Louvina Best, and my son Sandy Norris McDonald, III.

EPA Reduces Barriers For CO2 Capture & Sequestration

Today, the U.S. Environmental Protection Agency (EPA) is proposing a rule to advance the use of carbon capture and sequestration (CCS) technologies, while protecting Americans’ health and the environment. CCS technologies allow carbon dioxide (CO2) to be captured at stationary sources - like coal-fired power plants and large industrial operations - and injected underground for long-term storage in a process called geologic sequestration. The proposal is consistent with recommendations made by President Obama’s interagency task force on CO2. sequestration and helps create a consistent national framework to ensure the safe and effective deployment of technologies that will help position the United States as a leader in the global clean energy race.

Today’s proposal will exclude from EPA’s hazardous waste regulations CO2 streams that are injected for geologic sequestration in wells designated for this purpose under the Safe Drinking Water Act. EPA is proposing this exclusion as part of the agency’s effort to reduce barriers to the use of CCS technologies. EPA requests that comments submitted on the rule share analytical data on the overall composition of captured CO2 streams, including physical and chemical characteristics, to help the Agency determine if additional actions are necessary to ensure the safe use of CSS technologies.

Based on review of existing regulatory programs, EPA’s proposal concludes that the management of CO2 streams under the proposed conditions does not present a substantial risk to people’s health or the environment, provides regulatory certainty to industries considering the use of CCS technologies, and encourages the deployment of CCS technologies in a safe and environmentally protective manner.

The proposed rule is complementary to previous EPA rulemakings, including final rules under the Clean Air Act that require reporting by facilities that capture or inject CO2 streams, and Safe Drinking Water Act regulations that ensure the wells used for geologic sequestration of CO2 are appropriately sited, constructed, tested, monitored, and closed. EPA will accept public comments on the proposal for 60 days following publication in the Federal Register. (EPA, Image courtesy Next Big Future)

More information on the proposed rule

More information on the Geologic Sequestration of Carbon Dioxide

700 Jobs Cut at Canada Environment Department

The Conservative government cut more than 700 Environment Canada employees in order to rein in spending to eliminate a $32 billion deficit.  The cuts represent 11 per cent of the workforce at Environment Canada and includes meteorologists, scientists, chemists and engineers.  Attrition will cover many of the losses, while others affected will get help to transition to new jobs. The list of those affected includes two biologists, seven chemists, 45 computer scientists, 37 engineers, 19 meteorologists and 92 physical scientists. (The Star, 8/3/2011)

Mechanics of the Debt Deal

• Immediately enacted 10-year discretionary spending caps generating nearly $1 trillion in deficit reduction; balanced between defense and non-defense spending.

• President authorized to increase the debt limit by at least $2.1 trillion, eliminating the need for further increases until 2013.

• Bipartisan committee process tasked with identifying an additional $1.5 trillion in deficit reduction, including from entitlement and tax reform. Committee is required to report legislation by November 23, 2011, which receives fast-track protections. Congress is required to vote on Committee recommendations by December 23, 2011.

• Enforcement mechanism established to force all parties – Republican and Democrat – to agree to balanced deficit reduction. If Committee fails, enforcement mechanism will trigger spending reductions beginning in 2013 – split 50/50 between domestic and defense spending. Enforcement protects Social Security, Medicare beneficiaries, and low-income programs from any cuts.

[Vote on Balanced Budget Amendment]

(The White House)

Budget Control Act of 2011

Summary of Budget Control Act of 2011 (Speaker of the House John Boehner)

EPA Publishes Rule to Improve Reporting of Chemical Information

The U.S. Environmental Protection Agency is increasing the type and amount of information it collects on commercial chemicals from chemical manufacturers, allowing the agency to better identify and manage potential risks to Americans’ health and the environment. The improved rule, known as the chemical data reporting rule (CDR), also requires that companies submit the information electronically to EPA, rather than on paper, and limits confidentiality claims by companies.

Collecting this critical information on widely used chemicals will enable EPA to more effectively identify and address potential chemical risks. The new electronic reporting requirement and limits on confidentiality claims also will bring EPA’s data collection effort into the 21st Century and give the American people greater access to a wider range of information on chemicals to which their children and families are exposed every day.

The CDR rule, which falls under the Toxic Substances Control Act inventory update rule (IUR), requires more frequent reporting of critical information on chemicals and requires the submission of new and updated information relating to potential chemical exposures, current production volume, manufacturing site-related data, and processing and use-related data for a larger number of chemicals. The improved information will allow EPA to better identify and manage risks associated with chemicals.

EPA is requiring companies to submit the information through the Internet, using EPA’s electronic reporting tool. On-line reporting will improve both data quality and EPA’s ability to use the data, as well as make it more accessible to the public.

Companies will be required to start following the new reporting requirements in the next data submission period, which will occur February 1, 2012 to June 30, 2012. (EPA)

More information about the CDR Rule and reporting program.

Brown Marmorated Stink Bug

Stink Bug

The brown marmorated stink bug is believed to have arrived here from Asia in the 1990s. It has made its way from Pennsylvania to at least 33 states, and has been spotted as far west as California and Washington. A continuing advance is inexorable, scientists say, because the bugs have no natural predators and can travel long distances — not by flying, but via a more convenient method: covertly hitching rides in vehicles.  The name stink bug comes from their tendency to eject a foul-smelling glandular substance when disturbed or squashed.

Though annoying to homeowners, the bugs pose a serious problem to agriculture, piercing fruits and vegetables and sucking out the juices, scarring the fruit skin and leaving corky, brown areas beneath. The bug has been found in 33 states. But its maddening infestation is worst in the mid-Atlantic, where thousands of bugs invade homes, buzz around reading lamps at night, stroll across TV screens, land on dinner tables and become lodged by the hundreds in window sills.

Brown Marmorated Stink Bug

EPA approved, for emergency use, the insecticide dinotefuran (trade names Venom and Scorpion) on tree fruit to help manage populations of the brown marmorated stink bug, an invasive insect that has caused extensive yield losses in tree fruit production in the mid-Atlantic region. The approval, known as an emergency exemption, applies to Virginia, Maryland, Delaware, Pennsylvania, West Virginia, North Carolina and New Jersey. Under the exemption, producers of stone fruit (such as peaches, plums and cherries) and pome fruit (including apples and pears) are allowed to manage the brown marmorated stink bug with two applications of dinotefuran by ground equipment per season.

Under the emergency exemption provision of the Federal Insecticide, Fungicide and Rodenticide Act, states can petition EPA for the use of an unregistered pesticide on a temporary basis if it will help alleviate an emergency pest problem. Before approval, EPA must be able to support the use from a health and safety standpoint. EPA has assessed the risks of the exemption involving dinotefuran and finds that it meets the current safety standards. Dinotefuran is already approved for use on leafy vegetables, cotton, grapes, potatoes and a variety of other crops. (EPA, NYT, 5/20/2011, L.A. Times, 8/1/2011)

Federal Oil & Gas Subsidies

Fossil-energy companies get tax exemptions, free access to drill on public land, special accounting rules for profits, protection from foreign competition through import tariffs and regulations and the list goes on. We give so many favors to oil and gas companies that it's hard to keep track. Luckily, the determined wonks at Taxpayers for Common Sense have  for us.

The charts below illustrate the biggest oil and gas subsidies in various laws and accounting rules for 2011-2015, with more than $55 billion in targeted benefits for the industry and nearly $23 billion in general business subsidies.

We received the following question from a commenter:

(Grist, 7/29/2011, Taxpayers for Common Sense)

Why does the chart point out that the biggest tax break given the oil industry is the ethanol tax credit, when it is really the ethanol industry – over the objections of almost everyone in the oil industry – that forces its way into gasoline with federal mandates and gets the benefits of the tax credit?

Nuclear Waste Panel Adopts Center Recommendation

Norris McDonald at BRC Hearing

The Blue Ribbon Commission On America's Nuclear Future (BRC) issued its final draft report today and recommend that at least one new site be found to store waste left over from the nation’s nuclear power plants. The blue-ribbon commission assigned by President Obama in January 2010 to come up with an alternative to the plan for a nuclear waste repository at Nevada’s Yucca Mountain, also adopted a Center recommendation: the creation of a new federal corporation to manage the site rather than turning it over to the U.S. Department of Energy.

Center President Norris McDonald testified before the commission, on behalf of the Nuclear Fuels Reprocessing Coalition (NFRC) and recommended the creation of a Nuclear Waste Management Agency (NWMA).  The BRC adopted this recommendation.

Obama asked Energy Secretary Steven Chu to create the 15-member commission after his administration decided against going ahead with long-delayed plans to create a national nuclear waste storage site at Yucca
Mountain. The commission — chaired by former Democratic congressman Lee Hamilton and Brent Scowcroft, national security adviser to President George H.W. Bush — does not suggest where that storage site would be located.  This is a cop out.  The Center also disagrees with President Obama's decision to abandon Yucca Mountain as America's national repository for nuclear waste.

The report recommends guidelines for a selection process — such as giving local communities, but not states, the power to veto a facility. Many members of the commission believe that New Mexico, which already has a nuclear waste storage facility, might prove more receptive than Nevada to a federal waste site. The group also recommends finding an interim storage site for waste that is now being stored at 10 closed reactors at nine different sites. All but one of the sites have the used nuclear fuel in dry casks, and the commission said there would be fewer security risks if the waste were stored in one place.  The Center does not support this recommendation because we believe Yucca Mountain is the best location for the national nuclear waste repository.

For years, electric utilities with nuclear power plants paid about $23 billion in fees to the federal government to finance the repository, and substantial preparation was done at the Yucca Mountain,Nevada site. Some of those utilities have filed lawsuits to recover the money.

The report contains no dissenting opinions, but members of the commission could not reach agreement on whether to move ahead with reprocessing of used nuclear fuel, a process used today in France. (Wash Post, 7/29/2011)

EPA Proposes Air Pollution Standards for Oil and Gas Production

The U.S. Environmental Protection Agency (EPA) today proposed standards to reduce harmful air pollution from oil and gas drilling operations. These proposed updated standards - which are being issued in response to a court order - would rely on cost-effective existing technologies to reduce emissions that contribute to smog pollution and can cause cancer while supporting the administration’s priority of continuing to expand safe and responsible domestic oil and gas production. The standards would leverage operators' ability to capture and sell natural gas that currently escapes into the air, resulting in more efficient operations while reducing harmful emissions that can impact air quality in surrounding areas and nearby states.

Reducing these emissions will help cut toxic pollution that can increase cancer risks and smog that can cause asthma attacks and premature death - all while giving these operators additional product to bring to market.

Today’s proposal would cut smog-forming volatile organic compound (VOC) emissions from several types of processes and equipment used in the oil and gas industry, including a 95 percent reduction in VOCs emitted during the completion of new and modified hydraulically fractured wells. This dramatic reduction would largely be accomplished by capturing natural gas that currently escapes to the air and making that gas available for sale through technologies and processes already in use by several companies and required in some states.

Natural gas production in the U.S. is growing, with more than 25,000 new and existing wells fractured or re-fractured each year. The VOC reductions in the proposal are expected to help reduce ozone nonattainment problems in many areas where oil and gas production occurs. In addition, the VOC reductions would yield a significant environmental benefit by reducing methane emissions from new and modified wells. Methane, the primary constituent of natural gas, is a potent greenhouse gas - more than 20 times more potent than carbon dioxide. Today’s proposed changes also would reduce cancer risks from emissions of several air toxics, including benzene.

EPA’s analysis of the proposed changes, which also include requirements for storage tanks and other equipment, show they are highly cost-effective, with a net savings to the industry of tens of millions of dollars annually from the value of natural gas that would no longer escape to the air. Today’s proposal includes reviews of four air regulations for the oil and natural gas industry as required by the Clean Air Act: a new source performance standard for VOCs from equipment leaks at gas processing plants; a new source performance standard for sulfur dioxide emissions from gas processing plants; an air toxics standard for oil and natural gas production; and an air toxics standard for natural gas transmission and storage.

EPA is under a consent decree requiring the agency to sign a proposal by July 28, 2011 and take final action by Feb. 28, 2012. As part of the public comment period, EPA will hold three public hearings, in the Dallas, Denver and Pittsburgh areas. Details on the hearings will be announced soon. (EPA)

More information

Tenn Anti Nuclear Activists Call Bellefonte "Zombie" Reactor

The Bellefonte Nuclear Plant in Scottsboro, Alabama
was never completed

Tennessee Anti Nuclear Activists call TVA's proposed Bellefonte Nuclear Reactor the 'Zombie' reactor because it was designed in the 1960s with contruction beginning in the 70s, which was stopped in the 1980s.

TVA CEO Tom Kilgore has announced plans to ask the TVA Board to approve completion of the Bellefonte Nuclear Reactor in Scottsboro, Alabama at the August 18 Board Meeting in Knoxville.

The Center supports the completion of Bellafonte.

We also think that calling it the 'zombie' reactor is kind of funny. (Tennessee Environmental Council)

General Electric Moving X-Ray Business To China

General Electric Co. (GE)’s health-care unit, the world’s biggest maker of medical-imaging machines, is moving the headquarters of its 115-year-old X-ray business to Beijing.  The headquarters will move from Waukesha, Wisconsin, amid a broader parent-company plan to invest about $2 billion across China, including opening six “customer innovation” and development centers. The move follows the introduction earlier this year of GE Healthcare’s “Spring Wind” initiative to develop and distribute medical products and services in China, GE said in a statement today. More than 20 percent of the X-ray unit’s new products will be developed in China.

GE Healthcare, also the world’s biggest maker of magnetic resonance imaging and cardiac tomography scanners, got about $1.1 billion of its $16.9 billion in sales from China last year.

The X-ray business, whose financial results aren’t reported separately by GE, will hire 65 new engineers and support staff at a new Chengdu facility. GE has hired “a large number” of engineers who are in training.
GE anticipates that China will be GE Healthcare’s most important growth market.  The company wants to keep its leading position in providing medical devices targeted at higher-end Chinese customers, and also break into China’s growing market for primary health care, a key goal of the Chinese government’s health-care reform plans.

About 60,000 people work at GE Healthcare globally, including 820 in the X-ray business. Of health-care employees, more than 5,000 are in China, including about 2,000 sales representatives. (Bloomberg, 7/25/2011)

Carmakers Agree To Obama Fuel Economy Increases

Hmmm.  What's Going On?  Carmakers Have Always Opposed Increases in Fuel Economy

Except Chrysler In The 1980's

Bottom Line: We Don't Believe It

General Motors Co., Ford Motor Co., Chrysler Group LLC, Honda Motor Co. and Hyundai Motor Co. have endorsed a proposal by the Obama administration to raise averaged auto/truck fuel economy standards from the current target of 35.5 mpg by 2016 to 54.5 mpg by 2025. The White House will officially propose the rules by its Sept. 30 goal. It could have moved forward without industry support, but the White House's goal was to have backing from major auto makers.  We still cannot beleive the automakers are agreeing to the increase.  They are up to something. 

Car makers have argued the proposal would effectively require most new vehicles sold in the U.S. to be battery-powered by 2025 and raise prices by thousands of dollars.  Makers of electric vehicle technology say declining costs for lithium batteries will allow the auto industry to make big gains in fuel efficiency without stoking sticker shock.

The new proposal calls for a 5% average annual increase in fuel economy for cars and a 3.5% increase for light trucks through 2021. After 2021, both cars and trucks face a 5% annual increase.

Included in the plan are credits for hybrid pickup trucks and measures that will give big pickup trucks and sport-utility vehicles more leeway in meeting fuel-economy and emissions targets.
Auto companies also would get credit for technology that improves fuel economy in ways that often don't register in traditional Environmental Protection Agency tests. A feature that shuts of the engine when a vehicle is idling, is one example. (WSJ, 7/27/2011)

TransCanada Keystone XL Pipeline

TransCanada Corporation’s proposed Keystone XL project is a 1,700-mile pipeline that would carry oil from Alberta, Canada, to refineries on the Texas Gulf Coast. The project would expand TransCanada’s existing Keystone pipeline, which runs from Alberta to Oklahoma.  Keystone XL would deliver upwards of 830,000 barrels of oil per day (b/d) from Canada's oil sands region to U.S. refiners.

TransCanada filed its permit application with the State Department at the end of 2008. The department has issued two environmental reviews of the project and plans to issue a final review next month. Review of the project has dragged on for years while the State Department sought additional environmental analysis.

The House passed the bill (North American Made Energy Security (NAMES) Act (H.R. 1938) on a 279-147 vote that would require that the Obama administration make a final decision on the pipeline by Nov. 1. The vote was mostly along party lines. Forty-seven Democrats voted in favor of the legislation, while three Republicans opposed it. The proposal faces an uphill battle in the Senate. The White House said Monday the legislation is “unnecessary” because the State Department is slated to make a decision on the Keystone XL permit application by the end of the year, within two months of the deadline established in the bill. But the White House did not threaten to veto the bill.

Opponents of the project cite a rash of pipeline incidents that have exacerbated long-standing objections to the proposal from environmental groups and many Democrats.  Democrats also blasted the environmental impacts of oil sands production, which emits more greenhouse gases than conventional oil production.

Proponents of theproject say the proposed pipeline would create thousands of jobs and make the country less reliant on Middle Eastern oil. They have accused the Obama administration of slow-walking a multi-agency review of the project headed up by the State Department. The bill, authored by Rep. Lee Terry (R-Neb.), seeks to ensure that the administration expedites its Keystone XL.  (The Hill, 7/26/2011, Graphics courtesy Duke Nicholas School of the Environment)

New EPA Toxicity Testing & Environmental Sampling for BPA

Following a Bisphenol A (BPA) Action Plan announced in March 2010, the U.S. Environmental Protection Agency (EPA) is requesting public comment on possible toxicity testing and environmental sampling to study BPA’s potential environmental impacts. BPA has been shown to cause reproductive and developmental effects in animal studies. This action is part of Administrator Lisa P. Jackson’s comprehensive effort to strengthen EPA’s chemical management program and assure the safety of chemicals that Americans encounter in their daily lives.

BPA is used in the manufacture of a wide range of consumer and industrial products including food-can liners, hard polycarbonate plastics, epoxy paints and coatings, and thermal papers, including some cash register receipts. Releases of BPA to the environment exceed 1 million pounds per year.

In January 2010, the U.S. Food and Drug Administration announced it would further examine potential human health effects and reduce exposure to BPA in the food supply, which represents the greatest source of exposure to people. EPA is working with FDA, the Centers for Disease Control, and the National Institute of Environmental Health Sciences on research under way to better determine and evaluate the potential health consequences of BPA exposures. At the conclusion of that research, EPA will determine if additional actions may be needed to address human health concerns from non-food use exposures.

EPA issued an action plan on BPA in March 2010 outlining possible steps the agency might take to address risks presented by BPA, including the testing discussed in today’s announcement.

EPA BPA Action Plan 

Comments on the Advance Notice of Proposed Rulemaking (ANPR) must be received on or before September 26, 2011. The ANPR and supporting information can be found in docket number EPA-HQ-OPPT-2010-0812 on the Federal eRulemaking Portal.

Walter Reed Army Medical Center Moving To Bethesda

Walter Reed Army Medical Center, above, which has served the nation for 102 years, will close its doors Sept. 15, although a ceremony to case the colors of all Walter Reed activities will take place July 27.  Since 1909, soldiers from World War I and after and presidents such as Dwight Eisenhower have lived or died there. In 2005, the Base Realignment and Closure Commission (BRAC) voted to close the facility and move it to Bethesda.  On Wednesday, former and current patients and Walter Reed employees will say goodbye during a ceremony on the grounds. Most of the moving will take place in August.

Healing gardens are an important element of evidence-based design
 incorporated into the Walter Reed National Medical Center Warrior Complex

The Wounded Warrior complex at the
 Walter Reed National Medical Center in Bethesda, Md.

National Medical Center Warrior Complex.
The WRNMMC is located in Bethesda, Md.

The Wounded Warrior complex at the
Walter Reed National Medical Center in Bethesda, Md.

Under the Base Realignment and Closure Act of 2005, the Department of Defense was required to combine four National Capital Region, or NCR, inpatient hospitals -- Walter Reed, Bethesda National Naval Medical Center, DeWitt Army Community Hospital at Fort Belvoir, Va., and Malcolm Grow Medical Center at Joint Base Andrews, Md. -- into two while, maintaining the same patient care capacity. This is the largest medical restructuring ever undertaken in the military health system.

The new facility at Bethesda will include 345 medical-surgical beds, 50 intensive care unit beds and 20 operating rooms, while the expanded DeWitt will hold 120, 10 and 10, respectively. The two facilities should have more than enough capacity to care for all combat casualties, as well as family members and veterans, Mateczun said, especially because military medical facilities nationwide and civilian TRICARE partners can take additional cases if the need should arise.

The new Walter Reed National Military Medical Center,
seen from the air, with Wisconsin Avenue in front,
 still shows the original tower that Franklin Delano Roosevelt designed.
But the growth around that tower has expanded to
 include portions of the old Walter Reed Army Medical Center.

Of the 445 wounded, ill and injured Soldiers currently assigned to the Warrior Transition Brigade at Walter Reed, about a third will transition to DeWitt, while the other two-thirds will move to the Bethesda campus, added Lt. Col. Larry Gunther, the Warrior Transition Brigade executive officer. Both Bethesda and Belvoir have added and renovated barracks and lodging spaces for these servicemembers and their Families.

The Soldiers who will move to DeWitt are more ambulatory and need less specialized and intensive care. They may also have post-traumatic stress disorders, mild-to-moderate traumatic brain injuries and/or substance abuse problems, as the Fort Belvoir hospital is adding additional inpatient behavioral health and substance-abuse programs.

Servicemembers evacuated from theater and patients who need very specialized care for catastrophic injuries such as complex orthopedic trauma and open traumatic brain injuries will go to the new Walter Reed National Military Medical Center along with the specialized doctors and other medical professionals who care for them. Complex surgeries such as organ transplants will also occur at the Bethesda site.
(Wash Post, 7/25/2011, U.S. Army)

New York Mayor Bloomberg Donates $50 Million to Sierra Club

Mayor Michael R. Bloomberg announcing his $50 million donation
 to the Sierra Club near a coal-fired power plant in Alexandria, Va.
Jewel Samad/Agence France-Presse — Getty Images

New York City Mayor Michael R. Bloomberg announced on Thursday that he would donate $50 million to the Sierra Club’s campaign to shut down coal-fired power plants across the United States. The announcement was made in Washington, DC on the bank of the Potomac River across from the Potomac River plant, which is owned by The 62-year old Potomac plant, which is owned by GenOn Energy, is among the oldest of the country’s roughly 400 coal-fired power plants.

Mayor Bloomberg appeared with the Sierra Club’s executive director, Michael Brune to announce the gift from his chief charitable organization, Bloomberg Philanthropies. Mr. Bloomberg said he hoped it would help the environmental group shut down as many as a third of the nation’s coal-burning power plants — the oldest and dirtiest ones — by 2020.

Coal provides nearly half of the nation’s electricity and accounts for roughly a third of its output of carbon dioxide and other gases responsible for warming the planet. Burning coal also produces millions of tons of other pollutants that are harmful to human health and the environment.

The Sierra Club’s Beyond Coal campaign claims to have blocked the opening of more than 150 coal-fired power plants in recent years through litigation and local action. Mr. Bloomberg’s $50 million represents a third of the campaign’s projected $150 million four-year budget.

The goal of the campaign is to cut electricity production from coal by 30 percent and mercury emissions by 90 percent by 2020. Mr. Bloomberg’s donation will be used to expand the campaign to 45 states from the current 15 and to double the number of full-time staff members to 200. (NYT, 7/21/2011)

New Enviro Group Study on Air Pollution From Coal Plants

A new study, “Toxic Power: How Power Plants Contaminate Our Air and States,”  released Wednesday by the nonprofit Natural Resources Defense Council and Physicians for Social Responsibility shows that most toxic air pollution from coal- and oil-fired power plants can be found in Ohio, Pennsylvania and Florida. The study, used public data from the U.S. Environmental Protection Agency’s Toxics Release Inventory, a national database of toxic emissions reported by industrial sources. Data on pollution control systems at specific plants was drawn from the EPA’s National Electric Energy Data System database.

Map

The states ranked in the top "Toxic 20" (from worst to best) included:

1. Ohio
2. Pennsylvania
3. Florida
4. Kentucky
5. Maryland
6. Indiana
7. Michigan
8. West Virginia
9. Georgia
10. North Carolina
11. South Carolina
12. Alabama
13. Texas
14. Virginia
15. Tennessee
16. Missouri
17. Illinois
18. Wisconsin
19. New Hampshire
20. Iowa

California ranked 42 on the list.

EPA officials estimate that reductions of toxic pollution required by pending federal standards would save as many as 17,000 lives a year by 2015, prevent up to 120,000 cases of childhood asthma, more than 12,000 emergency room and hospital visits, and 850,000 lost workdays annually. The federal standards are expected to be finalized in November. (L.A. Times, 7/20/2011)

Courts Reject EPA Reliance on Guidance Documents

DC Circuit Rejects EPA’s Reliance on Guidance Documents in Lieu of Rulemaking in Clean Air Act Case

EPA has recently suffered a series of defeats in court cases challenging its reliance on “guidance documents” that were never adopted as administrative rules. The most recent example has to do with guidance under the Clean Air Act (“CAA” or “Act”). In Natural Resources Defense Council (“NRDC”) v. EPA,[1] the D.C. Circuit held that EPA violated the Administrative Procedure Act (“APA”) by relying on interpretive guidance – rather than a regulation – to allow states to propose alternatives to statutorily required fees for ozone non-attainment areas.

The CAA requires EPA to establish national ambient air quality standards (“NAAQS”) on certain pollutants, including ozone. The Act also includes requirements for “non-attainment” areas – or areas that have not attained the various NAAQS. The CAA imposes deadlines on these non-attainment areas, giving certain areas additional time to come into compliance with the NAAQS.[4] One of these requirements, Section 185 – which is specific to ozone – requires states to impose fees on all major stationary sources in “severe” or “extreme” areas of non-attainment that fail to meet the deadlines.

In 1997, EPA modified the ozone NAAQS, switching from a “1-hour” standard, which prohibited average hourly emission concentrations from exceeding a certain level, to a stricter “8-hour” standard, which limits emissions concentrations over an eight hour period. EPA formally revoked the 1-hour standard in a 2004 rulemaking, leaving only the 8-hour standard in force. In doing so, EPA sought to reconcile the regulatory change in the ozone NAAQS with the CAA’s “anti-backsliding” provision. Although that provision typically applies when EPA “relaxes” a NAAQS, EPA recognized that due to an overall improvement in air quality since the CAA’s 1990 amendments (which contained the 1-hour ozone standard), some non-attainment areas that would have been classified as “severe” or “extreme” under the 1-hour standard would now be in a lower classification, such as “marginal” or “moderate,” under the 8-hour standard. As such, EPA concluded that Section 172(e) should apply even though EPA had strengthened the ozone NAAQS, and implemented some of the non-attainment requirements to these lower-classification areas. In 2006, the D.C. Circuit generally upheld EPA’s interpretation of Section 172(e), but clarified that the fee structure in Section 185 must apply to areas as well.[8] In other words, the ruling required states to impose Section 185 fees on the major stationary sources in an area that failed to meet its attainment deadline under the now-defunct 1-hour standard.[9]

In response to the ruling, EPA issued a guidance document providing alternatives for implementing the Section 185 fee system in non-attainment areas (“Guidance”).[10] The Guidance authorized states to adopt and implement “alternative programs” in 1-hour non-attainment areas in lieu of implementing the Section 185 fee program, as long as those alternatives were “not less stringent” than the Section 185 program.[11] The Guidance also provided an “attainment alternative,” which allowed regions to avoid Section 185 fees if the region attained the 8-hour standard (even if the region remained in non-attainment of the 1-hour standard).[12] EPA sought to satisfy the APA’s notice and comment requirements by specifying that the approval of individual alternatives, either program or attainment based, would occur on a case-by-case basis, and when EPA found an alternative satisfactory, it would proceed with notice and comment to finalize that finding.[13]

NRDC challenged the Guidance on direct review in the D.C. Circuit, alleging that EPA violated the APA by issuing the Guidance without notice and comment. NRDC also alleged that both the program and attainment alternatives in the Guidance violated the Act. In response, EPA raised several procedural arguments, including lack of standing, final agency action, and ripeness, and sought to justify the Guidance as a “policy statement” or “interpretive rule” not subject to the APA’s notice and comment requirements.

EPA has, in recent years, tended to favor the use of interpretive guidance where it can, as the rulemaking process is typically long and arduous. No matter, the D.C. Circuit has joined other courts in holding that guidance is not a substitute for rulemaking. (Marten Law, 7/21/2011)