Trump Executive Order

 

Washington, New York: We'll Fight Trump Order Boosting Coal, Oil Projects. According to Seattle Post Intelligencer, “President Donald Trump has signed an executive order designed to block states from using a provision of the Clean Water Act to delay or prevent big oil and coal projects such as a proposed coal export terminal in Longview on the Columbia River. The states of Washington and New York are vowing to block Trump. ‘No amount of politicking will change the facts -- states have full authority under the Clean Water Act to protect our waters and ensure the health and safety over our people,’ Gov. Jay Inslee and AG Bob Ferguson said in a joint statement. ‘We will not allow this or any presidential administration to block us from exercising our authority lawfully and effectively.’ Gov. Andrew Cuomo of New York described the Trump order as ‘a gross overreach of federal authority’ and vowed to fight it ‘tooth and nail.’ The Empire State has denied a permit to the Constitution Pipeline, which would carry natural gas from Canada into New England.” [Seattle Post Intelligencer, 4/11/19 (=)]

 

Barrasso Praises Trump’s Executive Order To Improve Water Quality Certification Process. According to Wyoming Tribune Eagle, “U.S. Sen. John Barrasso, R-Wyo., chairman of the Senate Committee on Environment and Public Works, offered praise Wednesday for President Donald Trump’s executive order Promoting Energy Infrastructure and Economic Growth. Section 3 of the executive order aims to specifically improve the water quality certification process. ‘I applaud President Trump taking action to stop states from hijacking the Clean Water Act,’ Barrasso said in a news release. ‘Washington state and East Coast states have used this authority to slow down important energy projects. The president’s executive order compliments the legislation I introduced yesterday with several other Republican senators. The water quality certification process is designed to protect America’s water, not advance liberal political agendas. I will continue to work with the Trump administration on this critical shared priority.’ Barrasso introduced the Water Quality Certification Improvement Act of 2019. The legislation is cosponsored by Sens. Steve Daines, R-Mont.; Jim Inhofe, R-Okla.; Shelley Moore Capito, R-W.Va.; Mike Enzi, R-Wyo.; and Kevin Cramer, R-N.D. The bill amends Section 401 of the Clean Water Act. The legislation makes several key clarifications to existing law about the appropriate scope of review for a water quality certification. It would also place procedural guardrails and requirements on states as they process requests for certification to prevent future abuses.” [Wyoming Tribune Eagle, 4/11/19 (=)]

 

David Bernhardt

 

Senate Confirms Bernhardt As Interior Secretary Amid Calls For Investigations Into His Conduct. According to The New York Times, “The Senate on Thursday voted to confirm David Bernhardt, a former lobbyist for the oil and agribusiness industries, as secretary of the interior. The confirmation of Mr. Bernhardt to his new post coincided with calls from more than a dozen Democrats and government watchdogs for formal investigations into his past conduct. Senators voted 56-41, largely along party lines, in favor of Mr. Bernhardt’s confirmation. Three Democrats — Senator Joe Manchin of West Virginia, the senior Democrat on the Senate Energy Committee; Senator Krysten Sinema of Arizona; and Senator Martin Heinrich of New Mexico — supported Mr. Bernhardt, as did one independent, Senator Angus King of Maine. As interior secretary, Mr. Bernhardt, who has already played a central role in designing many of Mr. Trump’s policies for expanding drilling and mining, will now serve as the nation’s senior steward of its 500 million acres of public land and vast coastal waters. … Offhore oil companies have been working closely with Mr. Bernhardt over the past several months as he develops the administration’s plan to open up most United States coastal waters to offshore drilling. A draft of that plan was made public last year, and Mr. Bernhardt is expected to put forth a final plan later this year.” [The New York Times, 4/11/19 (=)]

 

Bernhardt Faces Continued Scrutiny Over Lax Record-Keeping. According to Politico, “The National Archives and Records Administration has launched an investigation into whether the Interior Department is complying with the Freedom of Information Act, according to congressional correspondence. House Oversight Chairman Elijah Cummings (D-Md.) requested the probe after Bernhardt acknowledged he does not keep a daily calendar and failed to disclose meetings with industry groups such as the American Petroleum Institute. … The documents paint a picture of Bernhardt’s frequent contact with representatives from industries he previously lobbied for — and now oversees, after the Senate confirmed his appointment to lead the agency Thursday. But the picture is incomplete — details about who Bernhardt met with or what he was working on are still missing for 133 of the 374 work days between when he started as deputy secretary in August 2017 and the end of January, the last day for which the daily cards are available. … ‘It shows whatever they were talking about in being transparent is a joke,’ said Aaron Weiss, spokesperson for the Center for Western Priorities. ‘There’s no transparency if you’re still holding at least 15 work weeks’ worth of when you were in the office.’ … Bernhardt is already facing ethics inquiries since evidence has come to light showing that he continued working to advance Westlands’ interests even after deregistering as the group’s lobbyist. … In one instance, the schedule called for a meeting ‘w/conservation groups on CO River issues’ without naming which groups attended. Bernhardt also met with the American Wildlife Conservation Partners and Theodore Roosevelt Conservation Partnership in early 2018, the schedule shows.” [Politico, 4/12/19 (=)]

 

Clean Water Act & WOTUS

 

States Face Uncertain New Burdens From Narrower CWA Jurisdiction Test. According to Inside EPA, “State regulators say EPA’s proposed Clean Water Act (CWA) jurisdiction rule will leave them with uncertain and potentially costly burdens to regulate waterbodies that the rule would leave to state discretion, including dealing with losses in federal funding and duplicating federal programs that would be cut back under a narrow reading of the CWA. In interviews with Inside EPA ahead of the CWA proposal’s April 15 public-comment deadline, state sources said the 60-day comment period has given them little time to account for the ways they could have to step up their own water programs in order to regulate waters that EPA and the Army Corps of Engineers plan to exclude from federal jurisdiction. While the agencies argue in their proposal that states can mitigate any environmental harms from narrowing the CWA’s scope by expanding their own water programs, a state regulator says ‘there’s a number of things we feel like they have not accounted for’ in that analysis, and which states themselves have been unable to fully assess in their comments.” [Inside EPA, 4/11/19 (=)]

 

Even In Arid West, Federal Rule Change For Waterways Matters. According to KJZZ, “Nathan Rees and his German shorthaired pointer, Beau, took this reporter off-trail to hike along Dude Creek in Tonto National Forest, northeast of Phoenix. I asked Rees to show me an ephemeral stream: a channel that may be dry now, but clearly carries water at least once in a while. We found one. ‘[It’s] probably not mapped [because of] how small it is,’ Rees said as Beau ran up and down the banks of Dude Creek. ‘But this contributes to Dude Creek that we’re standing in right now that has water in it.’ Rees works for the Arizona chapter of Trout Unlimited (TU), the sportsman’s group. It favors federal protection over ephemeral streams, so industries would need a certain federal permit to build around it or discharge anything into it. According to TU, three-quarters of Arizona’s streams are ‘ephemeral,’ which in legal terms means waterways that flow in response to precipitation. ‘If there was a mining operation even a mile upstream from where the confluence is, and tailings are being dumped into this, you know, dry washbed, when those heavy rains come, it’s gonna push all those tailings downstream,’ he warned. ‘It’s gonna get pushed out into Dude Creek, which is going to go into the East Verde, into the Verde, into the Salt, down to the Phoenix Valley.’ Big Arizona waterways like the Salt River fall under the federal Clean Water Act, as do some of their tributaries. But exactly which tributaries are covered by the CWA has led to many legal fights since the law first passed in 1972.” [KJZZ, 4/11/19 (+)]

 

Fast Action On 401. According to Politico, “EPA Administrator Andrew Wheeler said his agency will ‘soon’ unveil a proposal for reining in states’ ability to block energy infrastructure projects using their Clean Water Act authority — a move President Donald Trump directed Wednesday in a pair of executive orders. ‘We started working on it in advance, so we hope to have something out soon,’ Wheeler told Reuters, although he was unable to provide a precise timeline. But is there time to talk? A fast timeline could further frustrate governors who have already expressed worries about the orders’ impacts on states’ rights and have called for the administration to follow through on its promise to consult them. In a statement Thursday, the National Governors Association and National Conference of State Legislatures underscored the point saying, they are ‘concerned’ and ‘look forward to working with the EPA and other federal agencies to ensure that frequent, meaningful, and timely consultation occurs prior to any action that restricts or constrains state authority.’ Meanwhile, in court: One of the denials that motivated the orders — Washington state’s nixing of a massive coal export terminal — has been tied up since 2017 in litigation, which a number of states have jumped in. Wyoming and other energy-producers sided with the project’s backers, and blue states including New York and Maryland, which have both used the Clean Water Act authority in novel ways in recent years, sided with Washington. But in an order Thursday, a federal judge slammed the brakes on that case.” [Politico, 4/12/19 (=)]

 

Coal Ash

 

Duke To Challenge Excavation Order. According to E&E News, “Duke Energy Corp. plans to administratively challenge North Carolina regulators’ recent order to excavate coal ash stored at nine ponds around the state. The April 1 order by the North Carolina Department of Environmental Quality ‘would impose a financial burden on our customers and the economy of the Carolinas through the most expensive and disruptive closure option possible, despite that these basins are rated ‘low risk’ by the state agency, the Charlotte-based power producer said in a statement posted this morning on its website. ‘The process by which NCDEQ arrived at its decision lacked full consideration of the science and engineering, and we will provide those details when we file an appeal before the North Carolina Office of Administrative Hearings in the near future,’ the statement added. Coal ash is the residue produced in enormous amounts by coal-fired power plants. The ponds in question are located at a half-dozen plant sites. Duke officials had previously predicted the excavation order could add billions of dollars to a coal ash tab already estimated at $5.6 billion for storage sites in North and South Carolina. For all nine ponds, however, the North Carolina agency determined excavation would be more environmentally protective (Greenwire, April 2). In a news release, a senior attorney with the Southern Environmental Law Center assailed Duke’s decision to appeal the order. The nonprofit law firm has repeatedly clashed with the company on coal ash issues.” [E&E News, 4/11/19 (=)]

 

AP | Duke Energy To Contest N Carolina Coal Ash Excavation Order. According to Star Tribune, “The country’s largest electric company says it’s challenging an order by North Carolina’s environmental agency to excavate coal ash from all of its power plant sites in the state. Duke Energy Corp. said Thursday it will file an administrative appeal by May 1. The order could cut the risk of toxic chemicals leaking into water supplies but add billions of dollars to electricity bills. The company has said it wants to cover the storage pits at six power plants with a waterproof cap, calling it a cheaper option that would prevent rain from passing through and carrying chemicals through the unlined bottoms. The Charlotte-based company says complete excavation would cost about $10 billion, nearly double current estimates. Consumer advocates are demanding the company’s shareholders pay that bill instead of customers.” [Star Tribune, 4/11/19 (=)]

 

In Illinois, The Risk Of Coal Ash Contamination Rises With Floodwaters. According to Midwest Energy News, “With countless acres of flat, fertile farmland traversed by major rivers, Illinois is familiar with major flooding. Just as towns were built along rivers in decades past, so were coal-fired power plants that relied on the water for cooling and transporting coal. Now, those plants — some defunct and some still operating — are also repositories for toxic coal ash that could pose a risk of contamination when floodwaters rise. This may be of particular concern this spring, with the National Oceanic and Atmospheric Administration predicting a heavy flood year, including along the Mississippi River and its tributaries in Illinois. Multiple coal ash impoundments along the Mississippi and its tributaries are located in flood plains, as depicted in interactive maps compiled by the Prairie Rivers Network using flood maps from the Federal Emergency Management Agency. Coal ash impoundments on the banks of the state’s only designated wild and scenic river, the Middle Fork of the Vermilion in central Illinois, are also in a flood plain and at risk from severe erosion from the river. Coal ash storage at the site has long been the subject of legal battles, and environmental groups last month filed a lawsuit demanding Dynegy take action to prevent coal ash contamination of groundwater and the river. The Dynegy plant on the site closed in 2011.” [Midwest Energy News, 4/12/19 (+)]

 

Misc. Waterways

 

New York Plans To Sue EPA Over Certifying Upper Hudson Cleanup Complete. According to Inside EPA, “New York is planning to sue EPA over its decision to certify the upper portion of the Hudson River cleanup as complete even though the agency left the door open to additional future cleanup requirements by issuing a separate review that defers until a future date whether the cleanup is ‘protective.’ But a Superfund legal expert suggests the state’s litigation could face complex procedural hurdles as lawyers debate whether the state can overcome the law’s bar on pre-enforcement judicial review. New York Gov. Andrew Cuomo (D) and Attorney General Letitia James (D) April 11 announced they intend to sue EPA after the regulatory agency granted General Electric (GE) a certificate of completion (COC) for the upper portion of the Hudson River Polychlorinated Biphenyls (PCBs) Superfund site. ‘Since EPA has failed to hold GE accountable for fulfilling its obligation to restore the river, New York State will take any action necessary to protect our waterways and that includes suing the EPA to demand a full and complete remediation,’ Cuomo said in an April 11 press release. ‘Anything less is unacceptable.’ GE is the sole potentially responsible party (PRP) at the site and completed a six-year, $1.7 billion sediment cleanup, including dredging, at the site in 2015.” [Inside EPA, 4/11/19 (=)]

 

POLITICO Pro New York: Cuomo Says The State Will Sue EPA Over Hudson River Decision. According to Politico, “Gov. Andrew Cuomo said the state of New York will sue the federal Environmental Protection Agency for issuing General Electric a certificate of completion for cleanup of the Hudson River. ‘The Hudson River is the lifeblood of communities from New York City to the Adirondacks, but we know PCB levels remain unacceptably high in the riverbed and in fish,’ Cuomo said in a statement. ‘Since the EPA has failed to hold GE accountable for fulfilling its obligation to restore the river, New York State will take any action necessary to protect our waterways and that includes suing the EPA to demand a full and complete remediation. Anything less is unacceptable.’ EPA Region 2 Administrator Pete Lopez acknowledged the risk of a lawsuit from the state over the issuance of the ‘certificate of completion of the remedial action.’ He said during a conference call with reporters earlier today that there are disagreements about the law governing the decision and said a case could bring clarity. Lopez said it is not the final certification of completion — which may not be issued for decades.” [Politico, 4/11/19 (=)]

 

EPA Won't Compel GE To Restart Hudson River Dredging. According to E&E News, “EPA has declined to compel General Electric Co. to restart dredging in the Hudson River, despite calls from New York officials and environmentalists. EPA Regional Administrator Peter Lopez said today more time and testing are needed to fully assess GE’s $1.7 billion Hudson River cleanup. The federal agency issued a certificate to Boston-based GE that it completed its remedial action under the Superfund cleanup. But Lopez said the certificate does not leave Boston-based GE ‘off the hook’ for more work if the EPA later concludes additional cleanup is needed. Critics had urged the EPA to withhold the certificate, saying river polychlorinated biphenyl (PCB) levels remain too high. GE completed removal of 2.75 million cubic yards (2.1 million cubic meters) of PCB-contaminated river sediment north of Albany in 2015.” [E&E News, 4/11/19 (=)]

 

Vt., Plastics Company Reach Settlement Over Contamination. According to E&E News, “The state of Vermont has reached a settlement with a plastics company that will ensure hundreds of people in the Bennington area whose drinking water wells were contaminated with a potentially dangerous chemical have access to clean water, top state officials said yesterday. Under the settlement announced by Republican Gov. Phil Scott, Democratic Attorney General T.J. Donovan and others, Saint-Gobain Performance Plastics has agreed to extend municipal water lines to 245 more homes on the east side of Bennington, bringing the total number of affected homes and businesses in the area that will be hooked up to clean water to 470. In addition, the company agreed to provide other sources of water, such as drilling new wells or maintaining treatment systems, for 20 additional homes in areas where it is not possible to hook up to the municipal system. Construction is set to begin this summer. Officials hope to complete construction by the end of next year. With the latest agreement, expected to cost Saint-Gobain $20 million to $25 million, the company has agreed to spend about $45 million to address well contamination in the Bennington area, Scott said during a news conference. The state is going to contribute $4.7 million.” [E&E News, 4/11/19 (=)]

 

 

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