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On January 23, 2013, the U.S. Government Accountability Office (“GAO”) released a report concluding that the Department of Transportation’s (“DOT”) Pipeline and Hazardous Materials Safety Administration (“PHMSA”) should implement various recommendations that the GAO believes will help mitigate the consequences of pipeline failures.  The recommendations include: (1) improving incident response data in order to consider implementing a performance-based approach for incident response times; and (2) sharing guidance and information to help operators decide whether to install automated valves.

On Friday, January 4, 2013, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the Environmental Protection Agency (“EPA”) must rework how it implements standards for fine particulates emitted by power plants, boilers and motor vehicles.  In making its determination, the court rejected the EPA’s argument that it is required under the Clean Air Act to use a less stringent regime of implementation for standards related to fine particulates than it does for standards related to less dangerous, coarser particles.  As a result, implementation of the two fine particulate matter regulations will likely become more rigorous, and more stringent controls will apply to power plants located in communities which are not achieving the relevant clean air standards.

On December 21, 2012, EPA finally completed its reconsideration of four regulations designed to address hazardous air pollutant (“HAP”) emissions from industrial boilers and waste incinerators.  The rules are long overdue, considering that a court ordered EPA to finalize the rules in February 2011 and EPA itself promised to release the rule in April 2012.

On December 14, 2012, the Environmental Protection Agency (“EPA”) announced that it is strengthening the annual standard for fine particulate matter (PM2.5) from 15 ug/m3 to 12 ug/m3.  With the more stringent standard, EPA expects to designate as many as 66 counties to be in violation, 19 of which will be new to the list of counties that do not meet federal PM standards.  The official “nonattainment” designations will not be effective until early 2015; states will have a year to submit recommended designations, and EPA will have another year to act on those recommendations.  Because PM2.5 levels are expected to continue declining over the next few years in most areas, the final tally of nonattainment counties could be lower.

On Demember 14, 2012, The United States Court of Appeals for the D.C. Circuit dismissed an extraordinary appeal of proposed EPA New Source Performance Standards (“NSPS”) for greenhouse gas emissions from new coal-fueled electric generating units.  The appeal of the proposed standards was taken by a group of companies seeking to develop new coal-fueled generation and by the Utility Air Regulatory Group.

On December 11, 2012, the Commonwealth of Massachusetts Department of Public Utilities (“MDPU”) assessed fines totaling $24.8 million to three utilities for their responses after Tropical Storm Irene and an October 2011 snowstorm.  In assessing the fines, the MDPU determined that National Grid USA Service Company, Inc. (“National Grid”), NSTAR Electric Co. (“NSTAR”), and the Western Massachusetts Electric Co. (“WMECo”) were all deficient in their post-storm response operations, including their response to downed wires.  The MDPU announced that all of the money collected from the penalties will be returned to the utilities’ respective customers.

Late in the day on Friday, November 16, 2012, the Environmental Protection Agency (“EPA”) issued a proposal to reconsider maximum achievable control technology standards for hazardous air pollutant emissions from new electric generating units (referred to as “UMACT”). EPA’s previously-issued standards for new units, promulgated as a part of EPA’s Mercury and Air Toxics Standards rule, had been criticized by a coalition of new unit developers as unattainable. One of the new unit developers asked EPA to reconsider the standards, as did the trade association of pollution control equipment vendors, which also told EPA that its members could not issue guarantees that the standards could be met.

On November 2, 2012, Rockies Express Pipeline, LLC (“Rockies”), a subsidiary of Kinder Morgan Energy Partners, L.P, agreed to pay $945,900 for alleged violations of the Pipeline and Hazardous Materials Safety Administration (“PHMSA”) regulations.  Rockies had been accused of violating 28 PHMSA regulations in the construction and initial operation of its Rockies Express (“REX”) natural gas pipeline.

On October 22, 2012, the New York Energy Highway Task Force (“Task Force”) presented Governor Andrew M. Cuomo with the New York State Energy Highway Blueprint (“Blueprint”).  This Blueprint includes thirteen recommended actions aimed at adding up to 3,200 megawatts (“MW”) in new generation and transmission to New York, as well as developing clean energy.