Preview Newsletter
ACC PM 11/28/2016
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Trump Meets with Prospects for Top Job
Nov 28, 2016 | E&E Greenwire
By Robin Bravender and Kevin Bogardus
President-elect Donald Trump is scheduled to meet today with two possible contenders for U.S. EPA administrator who have called for drastic rollbacks of environmental rules. -
Trump Adds Renewable Energy Advocate to DOE Team
Nov 28, 2016 | E&E Greenwire
By Robin Bravender
President-elect Donald Trump has added another team member to the so-called landing team expected to shepherd the Energy Department's transition. -
US EPA Received 36 PMNs in October
Nov 28, 2016 | Chemical Watch
The US EPA received 36 pre-manufacture notices (PMNs) in October. Of these, 28 have their manufacturer or importer protected as confidential business information (CBI). -
HBCD Added to EPCRA List of Toxic Chemicals
Nov 28, 2016 | Chemical Watch
The US EPA has added hexabromocyclododecane (HBCD) to its list of toxic chemicals subject to reporting under section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA) -
Johnson & Johnson Faces Potential European Talc-Cancer Case
Nov 28, 2016 | Chemical Watch
By Clelia Oziel
A group of Irish women is considering suing Johnson & Johnson over an alleged link between its talc-containing products and their ovarian cancer. -
Industry Urges Court to Halt BLM Methane Rule
Nov 28, 2016 | E&E Energywire
By Ellen M. Gilmer
Challengers of the Obama administration's latest methane rule raised the stakes last week by asking a federal court to block the regulation from taking effect. -
Protesters Vow to Stay Put as Feds Close Lands
Nov 28, 2016 | E&E Energywire
By Ellen M. Gilmer
Opponents of the Dakota Access pipeline are vowing to stay put at a large encampment in North Dakota, despite an Army Corps of Engineers order to vacate the area by next week. -
House Mulls Latest Senate Offer with Gas, Resource Provisions
Nov 28, 2016 | E&E Greenwire
By Geof Koss
House energy reform conferees are studying the Senate's latest legislative counteroffer, which aims to keep key provisions in play that the House had proposed dropping from consideration earlier this month. -
Obama Pick for U.S. Chemical Safety Board has Strong Industry Ties
Nov 28, 2016 | Chemical & Engineering News
By Jeff Johnson
Rachel A. Meidl was nominated by President Barack Obama earlier this month to serve on the U.S. Chemical Safety & Hazard Investigation Board (CSB). -
Obama-Era Cyber Plan Waits for a Trump Makeover
Nov 28, 2016 | E&E Energywire
By Blake Sobczak
A White House plan to shield U.S. infrastructure from hackers will face a change agent in the form of President-elect Donald Trump, who is expected to signal a new U.S. approach to cybersecurity during his first 100 days in office. -
Inside the Environmental Fight Against Cap and Trade
Nov 28, 2016 | E&E Climatewire
By Debra Kahn
Environmental justice groups first made their mark on California's cap-and-trade system in 2009, when they sued over the state's choice of an emissions market over more direct regulations. -
Cato Institute Attacks Use of 'Co-Benefits' in Utility MACT Cost Analysis
Nov 28, 2016 | Inside EPA
By Stuart Parker
The free-market Cato Institute in a new legal filing is attacking EPA's use of “co-benefits” of reductions in fine particulate matter (PM2.5) in its revised assessment of the costs of the agency's utility air toxics rule, saying the cost finding is unlawful because EPA cannot rely on PM2.5 cuts to justify the costs of air toxics controls.
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Trump Meets with Prospects for Top Job
Nov 28, 2016 | E&E Greenwire
By Robin Bravender and Kevin Bogardus
President-elect Donald Trump is scheduled to meet today with two possible contenders for U.S. EPA administrator who have called for drastic rollbacks of environmental rules.
Oklahoma Attorney General Scott Pruitt (R), who's helping to lead the legal fight against the Obama administration's signature climate rule, and former Texas environmental regulator Kathleen Hartnett White — who has called for restraining "the imperial EPA" — are both scheduled to meet with Trump and Vice President-elect Mike Pence in New York as they continue to announce picks for administration jobs.
Both Pruitt and Hartnett White have been rumored candidates for EPA boss under Trump. They'd bring different traits to the job: He's a lawyer who has climbed the political ranks in the Sooner State and recently said he'd consider running for governor in 2018. She's a public policy expert who served as a Texas environmental regulator, worked for a cattlemen's trade group and was a special assistant in the White House for first lady Nancy Reagan.
They'd both be expected to slash environmental regulations written by the Obama administration and fulfill Trump's campaign promises to dramatically reshape the agency. If either were nominated, he or she could expect a warm welcome from industry groups opposed to Obama rules but an icy reception from green groups.
"I think the vision is for a very different EPA if either of these candidates is nominated," said Scott Segal, an energy industry lobbyist at Bracewell.
"Industry feels like in recent years, EPA has stretched their statutory authority to the breaking point," he added. "They have taken the major statutes they've been entrusted with to places that Congress never intended. I think any of these appointees would be a signal that that kind of activity will no longer be tolerated."
Frank O'Donnell, a longtime environmentalist and president of the advocacy group Clean Air Watch, said either candidate would spark fierce opposition from environmentalists.
"If either of these folks get picked, they will be vilified relentlessly as the personification of evil, of a person who hates children with asthma and loves oil derricks and coal mines. Whether that's a fair characterization or not, I think that's how they'll be portrayed," O'Donnell said.
Spokesmen for the Trump transition team have declined to comment on which particular jobs those meeting with Trump may be vying for. Trump's other meetings scheduled for this week include sit-downs with rumored contenders for secretary of State retired Gen. David Petraeus, former Massachusetts Gov. Mitt Romney and Senate Foreign Relations Chairman Bob Corker (R-Tenn.). Trump will also meet tomorrow with Rep. Marsha Blackburn (R-Tenn.), House Homeland Security Chairman Michael McCaul (R-Texas) and Rep. Lou Barletta (R-Pa.), according to the transition team.
Many other names have been floated for EPA administrator, including additional state officials and former George W. Bush administration EPA political appointees. Another state attorney general, Patrick Morrisey of West Virginia, is another often-mentioned contender for the EPA job.
By nominating Pruitt for the job, Trump would be sending a signal that he intends to follow through with his promises to toss out some of the Obama EPA's most contentious rules.
As Oklahoma's attorney general since 2011, Pruitt has made headlines for participating in lawsuits aimed at dismantling Obama's environmental policies. He's been one of the leading legal opponents of the Clean Power Plan to slash power plants' greenhouse gas emissions, and of EPA's so-called Waters of the United States, or WOTUS, rule. Both those lawsuits saw early victories as courts agreed to put the rules on hold pending the high-stakes legal fights.
EPA facing 'substantial change'
In a radio interview this month with billionaire John Catsimatidis, Pruitt was asked what he is most looking forward to under a Trump administration.
Pruitt's answer: "Regulatory rollback."
During the Obama administration, Pruitt said, "Washington has become way too consequential in the lives of citizens across the country. They've been dictating to the states, dictating to business, dictating to industry — sometimes outside of the Constitution and outside of the congressional statute."
He accused the Obama administration of acting "outside of the Clean Air Act and other forms of environmental laws to dictate in such a way to be anti-fossil fuel. And it was a let's-pick-winners-and-losers mentality, and that's not what regulation should be, and that's what we're going to see responded to, I think, in 2017 and beyond."
Under Trump, Pruitt said, "there's going to be substantial change" at EPA. "The leadership of the EPA, the leadership of Department of Energy is going to be substantially important as we head into this new administration. There should be much hope and optimism across the country for jobs and economic growth because Washington is going to be less consequential."
Pruitt and his allies scored a big win earlier this year when the Supreme Court took the unprecedented step of freezing the Clean Power Plan before its merits had been considered by a federal appeals court.
Segal of Bracewell said Pruitt has a "track record of taking the EPA to court and of being a leader." While many attorneys general sign onto lawsuits, "Pruitt does more than that. He's been a lead on some of this litigation," Segal added.
Pruitt started his career in politics in 1998, when he was elected to the Oklahoma Senate. He was also co-owner and managing general partner of Oklahoma City's Triple-A minor league baseball affiliate — the Oklahoma City Redhawks. In 2001, he ran unsuccessfully for a seat in the U.S. House of Representatives.
Pruitt left the state Senate in 2006, when he ran a failed campaign to clinch the Republican nomination for Oklahoma's lieutenant governor.
He recently told the Bartlesville, Okla., Examiner-Enterprise that he was considering running for Oklahoma governor in 2018 to replace Gov. Mary Fallin (R).
Fallin is also a rumored contender for a top job in the Trump administration. She met with Trump recently and could be in line for Interior secretary, so the state's top job may be open sooner than 2018. It's unclear whether Pruitt would prefer to vie for the governor's mansion or accept a job in the Trump administration. Pruitt's office did not respond to a request for comment about today's meeting with Trump and Pence.
O'Donnell of Clean Air Watch said he views Pruitt as a "classic, glad-handing pol who's run for office repeatedly, lost several times, won several times." O'Donnell also pointed to a New York Times report showing that Pruitt — serving as attorney general in 2011 — had sent a letter to EPA that had been written by lawyers from Devon Energy Corp., an Oklahoma oil and gas company, sparking criticism.
Pruitt is also reportedly close to Harold Hamm, CEO of Oklahoma City-based Continental Resources Inc. and a top energy adviser to Trump.
Hartnett White wary of 'imperial EPA'
Hartnett White, a longtime environmental policy expert and a fierce critic of the Obama EPA, was a Trump adviser on the campaign trail.
She's currently the director of Fueling Freedom, a project of the Texas Public Policy Foundation. She's working at the think tank alongside Doug Domenech, who is leading Trump's transition team at the Department of the Interior. That project seeks to end EPA's Clean Power Plan, among other goals.
Hartnett White has been at the Austin, Texas-based think tank since 2008 as its distinguished senior fellow in residence and director of its Armstrong Center for Energy & the Environment. She previously spent six years on the Texas Commission on Environmental Quality, including a stint as chairwoman, during the 2000s. She was appointed to the commission by former Texas Gov. Rick Perry (R).
Hartnett White has been part of Trump's presidential campaign since at least August, when she was named a member of his economic advisory council (Greenwire, Aug. 12). She also has ties to other Trump insiders.
She co-authored "Fueling Freedom: Exposing the Mad War on Energy" with Stephen Moore, an economic adviser to Trump and a fellow at the Heritage Foundation, which was published earlier this year.
Moore said today in an interview that Hartnett White would be "fantastic" heading up EPA and her record at TCEQ was "sterling."
"Texas had a boom period in those years, but at the same time, Texas had a drastic reduction in emissions," Moore said. "She would be great because she proves what Trump has said, which is reduce pollution but make sure that there is economic growth."
She wrote an op-ed in The Hill in June titled "Restrain the imperial EPA." Hartnett White supported legislation offered by Rep. Gary Palmer (R-Ala.) that would block the agency from regulating carbon dioxide, methane and other greenhouse gases.
In the op-ed, she argued that treating carbon dioxide like a pollutant was damaging America's energy sector.
"The truth is that our bodies, blood and bones are built of carbon! Carbon dioxide is a necessary nutrient for plant life, acting as the catalyst for the most essential energy conversion process on planet earth: photosynthesis," Hartnett White wrote.
She has often espoused carbon dioxide's benefits, instead of its dangers. She is a member of the advisory committee for the CO2 Coalition, which believes the gas shouldn't be controlled by government regulators (Greenwire, Aug. 13, 2015).
Hartnett White has also defended fossil fuels. In June 2014, she authored a 36-page paper — "Fossil Fuels: The Moral Case" — where she said fossil fuels like coal as well as oil and gas "have been a necessary condition of prosperous societies and of fundamental improvements in human well-being." She also said that renewable energy, such as wind, solar and biomass, "remains diffuse, unreliable, and parasitic, in that those intermittent sources rely on fossil fuels for back-up."
Back in 2010, Hartnett White co-authored an article titled "EPA's Regulatory Barrage and the Lone Star State," where she argued her home state was in the agency's crosshairs again and again.
"With our many energy intensive industries, Texas is disproportionately impacted — and in some cases, it has been directly targeted by EPA," she wrote.
Hartnett is well-known among other conservative think tanks and on Capitol Hill. In recent years, she has made appearances at congressional hearings and the Heritage Foundation to talk environmental policy, and has been listed as a member of the American Legislative Exchange Council's Energy, Environment and Agriculture Task Force.
At a congressional hearing in April last year, the ex-TCEQ chairwoman also detailed her position on climate change, saying the science wasn't strong enough to warrant the move to carbon-free energy sources.
"I think the elimination of fossil fuels as rapidly as possible would have enormous impacts across the world," Hartnett White said. "But the science that supports the need to do that has to be extremely robust. I think that the current state of climate science is not strong enough, nor are the key models validated, in order to support policy of that magnitude."
Hartnett White's sentiments on carbon and EPA as well as her record at TCEQ will draw pushback from environmental groups. They will look to Democrats to oppose her nomination if Trump picks her to lead the agency.
In a pre-emptive statement released Wednesday, Tom "Smitty" Smith, director of Public Citizen's Texas office, said Hartnett White was a "disaster" who supported "almost every industry-supported project."
"Kathleen Hartnett White would be one of the worst environmental disasters the nation has ever experienced if she were appointed to run the U.S. Environmental Protection Agency," Smith said.
Nevertheless, even if Hartnett White doesn't end up at EPA, she could find another position in the Trump administration.
Moore said, "If she doesn't get EPA, I could easily see her as the head of the Council of Environmental Quality [in the White House]."
http://www.eenews.net/greenwire/2016/11/28/stories/1060046282
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Trump Adds Renewable Energy Advocate to DOE Team
Nov 28, 2016 | E&E Greenwire
By Robin Bravender
President-elect Donald Trump has added another team member to the so-called landing team expected to shepherd the Energy Department's transition.
On Friday, the transition team announced that Kelly Mitchell, a Michigan Republican and a sales account manager at Multi Automatic Tool and Supply Co., will be joining the DOE team. The landing teams are expected to interview top agency officials and help formulate a policy agenda for the new administration.
Mitchell is the second name announced for the DOE team, whose leader is Tom Pyle, president of the Institute for Energy Research. Additional names are expected to be announced as the transition team expands. The team's former leader, energy lobbyist Mike McKenna, stepped down from the team earlier this month amid a broad transition shakeup and new rules requiring lobbyists to deregister (Greenwire, Nov. 21).
Mitchell, outreach vice chairwoman of the Michigan Republican Party, is a founding member of the Michigan Conservative Energy Forum's Leadership Council.
Earlier this year, she was the co-author of an op-ed in The Oakland Press, in which she and other conservatives called for the expansion of renewable energy.
The op-ed calls for an energy portfolio including a "greater mix of clean, domestic, renewable energy. This not only gives us greater control over the cost of our energy, but it keeps our hard earned dollars right here in Michigan, instead of sending them to countries who often wish to do us harm."
The authors called on Michigan lawmakers "to stay strong in their commitment to a secure energy future, and to expand Michigan's role as a clean energy innovator and leader in our country."
Mitchell, reached by phone today in Michigan, said her work on energy issues has primarily focused "on the advocacy side." She had not yet heard that her appointment was official, and declined to comment further until she had spoken to the transition team.
Mitchell's Twitter account includes photos of her with Trump, House Energy and Commerce Chairman Fred Upton (R-Mich.) and Michigan Attorney General Bill Schuette (R).
According to her biography on the Michigan Conservative Energy Forum's website, Mitchell has worked on several previous Republican campaigns, was appointed to the Republican National Committee's Michigan Black Advisory Board, and is a member of the Michigan Conservative Energy Forum's Leadership Council and the Kent County Solid Waste Management Planning Committee.
http://www.eenews.net/greenwire/2016/11/28/stories/1060046280
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US EPA Received 36 PMNs in October
Nov 28, 2016 | Chemical Watch
The US EPA received 36 pre-manufacture notices (PMNs) in October. Of these, 28 have their manufacturer or importer protected as confidential business information (CBI).
The agency also received 12 notices of commencement (NOC) to manufacture new chemicals during the same period.
The new chemicals notification volumes are lagging slightly behind previous years. The EPA reported receiving 47 PMNs and 38 NOCs in October 2015, with 52 PMNs and 26 NOCs in October 2014.
The agency did, however, report higher numbers in August and September compared to the previous two years.
Under the new TSCA law, the EPA must make an affirmative finding of safety before a new substance can be brought to market. Early indications point to an increase in consent orders, amid an initial slowdown in the agency's processing of PMNs.
https://chemicalwatch.com/51268/us-epa-received-36-pmns-in-october
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HBCD Added to EPCRA List of Toxic Chemicals
Nov 28, 2016 | Chemical Watch
The US EPA has added hexabromocyclododecane (HBCD) to its list of toxic chemicals subject to reporting under section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA)
This requires facilities that manufacture, process or use HBCD to report its environmental releases and other waste management quantities, as well as pollution prevention and recycling data.
HBCD met toxicity criteria for listing because of its developmental and reproductive effects in humans and because it is highly toxic to aquatic and terrestrial organisms.
The EPA also determined it should be classified as a persistent, bioaccumulative and toxic (PBT) chemical, and therefore assigned a 100lb reporting threshold.
A coalition of more than 30 organisations and individuals voiced support for the proposal to add HBCD. The agency did not agree, however, with the coalition's call for a 10lb reporting threshold.
https://chemicalwatch.com/51275/hbcd-added-to-epcra-list-of-toxic-chemicals
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Johnson & Johnson Faces Potential European Talc-Cancer Case
Nov 28, 2016 | Chemical Watch
By Clelia Oziel
A group of Irish women is considering suing Johnson & Johnson over an alleged link between its talc-containing products and their ovarian cancer.
Their lawyer said a decision on taking legal action against the multinational will be made when the results of appeals against the decisions in three legal cases in the US are known – possibly within 18 months.
"We [will] let the Americans do the heavy lifting [first]," lawyer Bryan Fox told Chemical Watch. He said he represents "close to 20" Irish women and is looking for others diagnosed with ovarian cancer in the country as he aims to establish more links.
Consumer products multinational Johnson & Johnson has lost three trials in the US in the past year. It has been ordered to pay $195m over claims it ignored studies connecting its talc-containing products to ovarian cancer and failed to warn customers about the risk.
The company is appealing all three verdicts. It says it is "guided by the science, which supports the safety of Johnson's baby powder".
Two further cases in New Jersey were dismissed in September by a state court judge – a decision which, the company says: "highlights the lack of credible scientific evidence behind plaintiffs' allegations".
While the appeals process continues, the company faces thousands of complaints yet to be heard in several states.
Inconclusive evidence
Talc is a naturally occurring mineral which, in its natural form, may contain asbestos, a known carcinogen. But studies show cosmetic grade talcum does not contain asbestos.
A potential link between talc and ovarian cancer was first reported in 1982. However, many scientists say the evidence of major risk of cancer from use of talc, especially cosmetic grade, is inconclusive.
The International Agency for Research on Cancer (Iarc) has classified genital talc as a possible carcinogen. Echa's website says the majority of companies providing CLP notifications for talc did not classify any hazards.
In Echa's classification and labelling (C&L) inventory, 34 out of 2,564 notifiers said talc is a category 1A carcinogen. Data in the C&L inventory may be unreliable: the agency and industry have been asked to clean up erroneous and inconsistent information it contains.
https://chemicalwatch.com/51261/johnson-johnson-faces-potential-european-talc-cancer-case
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Industry Urges Court to Halt BLM Methane Rule
Nov 28, 2016 | E&E Energywire
By Ellen M. Gilmer
Challengers of the Obama administration's latest methane rule raised the stakes last week by asking a federal court to block the regulation from taking effect.
In a legal maneuver just before the Thanksgiving holiday, the Independent Petroleum Association of America and the Western Energy Alliance urged the U.S. District Court for the District of Wyoming to issue a preliminary injunction preventing the administration from enforcing the rule.
In the injunction request, the groups argued that the Bureau of Land Management rule — which aims to slash methane emissions from venting and flaring at oil and gas operations on public and tribal lands — is costly, duplicative and beyond BLM's authority.
While BLM has pointed to its authority to prevent waste of oil and gas resources as part of the rule's foundation, critics say it is effectively an air quality rule. They argue that the Clean Air Act creates a cooperative federalism scheme between U.S. EPA, states and tribes to regulate air quality.
"The 1970 [Clean Air Act] amendments did not grant air quality management authority to any other federal agency," the industry groups told the court last week. "Courts continue to recognize that among the federal agencies only EPA has been delegated authority to regulate air quality."
EPA finalized its own rule to cut methane emissions from new oil and gas operations earlier this year. States and industry groups are also challenging that regulation.
In last week's request, the industry groups argued that the BLM rule would cause them irreparable harm and urged the court to bar the rule from taking effect until the litigation is resolved. The rule is slated to go into effect Jan. 17, 2017.
The case is before Judge Scott Skavdahl, the same judge who earlier this year struck down the Obama administration's hydraulic fracturing rule.
In a related case in the same court, state officials in Wyoming and Montana are also challenging the BLM methane rule. The states' challenge expanded last week with a request from North Dakota to intervene on their side.
http://www.eenews.net/energywire/2016/11/28/stories/1060046245
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Protesters Vow to Stay Put as Feds Close Lands
Nov 28, 2016 | E&E Energywire
By Ellen M. Gilmer
Opponents of the Dakota Access pipeline are vowing to stay put at a large encampment in North Dakota, despite an Army Corps of Engineers order to vacate the area by next week.
In a statement yesterday, a coalition of pipeline opponents promised to "stand our ground" on corps-controlled lands along the Missouri and Cannonball rivers known as the Oceti Sakowin camp, where protesters have gathered for months in opposition to the oil project.
The statement comes after months of escalating tensions between protesters, law enforcement and Dakota Access workers. Pipeline construction is nearly complete in North Dakota, except for a Missouri River crossing, which the Obama administration has not yet authorized.
The Army Corps sent a letter to Standing Rock Sioux Chairman Dave Archambault II on Friday asking him to urge members of his tribe and other protesters to leave the area by Dec. 5.
Anyone present on those lands after Dec. 5 will be considered trespassers and subject to prosecution, the letter said.
The agency noted in a statement last night that it would not "forcibly remove" protesters from the area. The Army Corps will set up a "free speech zone" south of the Cannonball River where protesters can congregate, it said.
"The Army Corps's eviction notice is an aggressive threat to Indigenous peoples," a coalition of grass-roots groups said in a statement. "It further empowers and emboldens a militarized police force that has already injured hundreds of unarmed, peaceful water protectors, and continues to escalate its tactics of brutality against us. It adds fuel to the fire of an ongoing human rights crisis."
The coalition includes the International Indigenous Youth Council, the Indigenous Environmental Network, Honor the Earth and the Camp of the Sacred Stones — the original anti-pipeline encampment set up in April.
The groups say the Army Corps has no authority to evict the protesters from their camp because the land belongs to the Sioux under the 1851 Treaty of Fort Laramie. Though treaty lands shrank years ago, the Dakota Access conflict has emboldened many tribal advocates to seek reclamation of ancestral homelands.
"The encampment is, in many respects, a reclamation of this stolen territory and the right to self-determination guaranteed in the treaties," the groups said. "Our water protectors are not trespassers and can never be trespassers."
Tribal government leaders also expressed outrage at the Army Corps' decision. In a statement, Archambault called it "unfortunate and disrespectful" and called on pipeline opponents to pressure the Obama administration to take action to stop the pipeline.
Cheyenne River Sioux Chairman Harold Frazier sent a letter to the Army Corps on Friday saying the agency's decision "continues the cycle of racism and oppression imposed on our people and our lands throughout history."
Even vocal critics of the pipeline protests were not thrilled with the agency's decision. In a statement late last week, Morton County Commission Chairman Cody Schulz said he was thankful that the protesters will be forced to move but dismayed that the Obama administration has not sent federal law enforcement to help manage the situation.
"However, this decision means nothing unless the federal government follows up by sending federal law enforcement personnel to enforce the decision," he said.
http://www.eenews.net/energywire/2016/11/28/stories/1060046248
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House Mulls Latest Senate Offer with Gas, Resource Provisions
Nov 28, 2016 | E&E Greenwire
By Geof Koss
House energy reform conferees are studying the Senate's latest legislative counteroffer, which aims to keep key provisions in play that the House had proposed dropping from consideration earlier this month.
"Negotiations are ongoing and we continue to review the proposal the Senate sent over," a House GOP aide said this morning in an email.
Several proposals have pingponged between negotiators in each chamber. Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) and ranking member Maria Cantwell (D-Wash.) transmitted a counteroffer Friday to a recent House proposal.
The lawmakers, in a joint statement, confirmed that the House sought to drop numerous provisions from the mix, including some with bipartisan backing (Greenwire, Nov. 21).
Murkowski and Cantwell said in the statement that their new version "restores a host of provisions that the House was prepared to drop — including those related to [natural gas] exports, sportsmen's [legislation], the Land & Water Conservation Fund, hydropower, natural gas pipelines, manufacturing, innovation, carbon benefits of biomass and critical minerals."
Murkowski and Cantwell added that they were hopeful that language addressing the California drought, wildfire funding and forest management could be agreed to, as well.
The maneuvering comes as conferees are aiming to complete the first major energy legislation in a decade. It was always a difficult task, but the surprise election of Donald Trump for president appears to have thrown a monkey wrench into the talks.
House Republicans have since signaled little appetite for seeking agreement on numerous issues, sensing a stronger negotiating hand in the new Congress with a Republican in the White House.
However, Murkowski and Cantwell earlier this month noted that GOP losses in the Senate could make it harder to advance legislation in the upper chamber in the next Congress (E&E Daily, Nov. 18).
In Friday's statement, the senators noted that neither of them supports every proposal in the new counteroffer, but said it "encompasses the broad range of work that can be completed this year; and it balances competing preferences for energy and resource policy that will remain just as strong in the next Congress."
The National Hydropower Association similarly urged conferees to keep working, calling for the inclusion of hydropower provisions from the Senate's energy package, S. 2012.
"For over two years, lawmakers on both sides of the aisle have worked to craft bipartisan hydropower provisions to modernize the licensing process, while protecting environmental values," the association's executive director, Linda Church Ciocci, said in a statement over the weekend.
"The Senate's proposed compromise on an energy Conference Report marks a pivotal point in reaching bipartisan comprehensive energy legislation," she said. "We urge House and Senate Energy Bill Conferees to pass this bill as it brings increased predictability, coordination and timeliness to the hydropower regulatory process."
http://www.eenews.net/greenwire/2016/11/28/stories/1060046259
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Obama Pick for U.S. Chemical Safety Board has Strong Industry Ties
Nov 28, 2016 | Chemical & Engineering News
By Jeff Johnson
Rachel A. Meidl was nominated by President Barack Obama earlier this month to serve on the U.S. Chemical Safety & Hazard Investigation Board (CSB).
Meidl is currently deputy associate administrator for policy & programs in the Pipeline & Hazardous Materials Safety Administration (PHSMA) at the Department of Transportation, a position she has held for a year.
From 2012 to 2015, she was director of regulatory affairs for the American Chemistry Council, a chemical industry trade association.
As an industry advocate, Meidl was frequently at odds with CSB safety recommendations. For instance, in her comments on proposed regulations that had been advanced by CSB, she opposed application of inherently safer technologies and overhauls of federal regulations on process safety management and industrial facility risk management. She also argued against greater regulation of highly reactive chemicals.
CSB Chair Vanessa Sutherland is also a former official at PHMSA, a 600-employee agency that regulates the transportation of oil, natural gas, and other hazardous materials.
According to the White House, Meidl’s past experience includes several environmental health and safety positions at the University of California, San Diego. She began her career in 1997 as a contract manager and chemist at Clean Harbors Environmental Services.
If confirmed by the Senate, Meidl would bring the board to its full complement of five members for the first time since September 2011.
Her name is among 20 nominees for whom the president hopes to gain Senate approval in the waning days of his Administration.
http://cen.acs.org/articles/94/web/2016/11/Obama-pick-US-Chemical-Safety.html
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Obama-Era Cyber Plan Waits for a Trump Makeover
Nov 28, 2016 | E&E Energywire
By Blake Sobczak
A White House plan to shield U.S. infrastructure from hackers will face a change agent in the form of President-elect Donald Trump, who is expected to signal a new U.S. approach to cybersecurity during his first 100 days in office.
Trump has indicated he will convene a separate "cyber review team" to assess the state of U.S. critical infrastructure. In a video last week explaining his policy plan during those first 100 days, Trump said he would "ask the Department of Defense and the chairman of the Joint Chiefs of Staff to develop a comprehensive plan to protect America's vital infrastructure from cyberattacks and all other forms of attacks."
As President Obama's panel of cybersecurity experts prepares to release a list of U.S. strategies for beating back hackers, the cyberdefense program created by the Obama White House for critical infrastructure and its philosophy of voluntary compliance hang in the balance once Trump takes office.
The Framework for Improving Critical Infrastructure Cybersecurity, created by an Obama executive order in 2013 and run out of the Commerce Department, was designed to help companies get their digital houses in order. The focus is on companies tied to the U.S. power grid, transportation systems and other networks many Americans couldn't live without.
The struggle in the Obama era, however, has always been getting companies to sign onto a government program that aligns industry standards with federal guidelines for tackling cyber intrusions.
The White House has looked for ways to sweeten the deal. It wanted to ensure that one of Obama's signature cyber efforts didn't fall flat with executives in the private sector who control the bulk of U.S. critical infrastructure.
Three separate agencies submitted a laundry list of strategies to reward users of the framework. But while the framework itself moved ahead — version 1.1 is due out this winter from the National Institute of Standards and Technology (NIST) — the incentives largely failed to launch.
The administration thought it could attract enough voluntary participants to make a difference and rooted the framework in existing industry best practices, according to a senior U.S. cybersecurity official.
Whether Trump will stay the course with the "market-based" approach or try something new remains to be seen.
Few carrots, no sticks
Today, roughly one-third of critical infrastructure operators use the framework, according to third-party surveys from Tenable Network Security and the research firm Gartner Inc.
It's still difficult to gauge how the state of U.S. critical infrastructure security has changed under the framework, given its voluntary nature, or whether the Obama administration could have blown more wind into NIST's sails at an early stage.
"Once the document itself is produced, it just goes out into the world, and who knows what happens next?" said Ryan Ellis, an assistant professor at Northeastern University and an expert in cybersecurity and infrastructure politics. "What can NIST do on its own, absent any incentives, absent any compelling authority coming from other agencies to push adoption?"
In a February 2013 executive order, President Obama directed the Department of Homeland Security, the Treasury Department and NIST's parent agency, the Commerce Department, to review potential incentives for the framework and report back in 120 days.
The goal, unlikely as it seemed to skeptics at the time, was to build a cooperative system, rather than a punitive one. Where regulations could be the stick, incentives could be the carrot.
The three agencies' findings ranged from straightforward steps that could be taken under existing authority to incentives that would require legislation or action from the private sector. Each organization relied on its own research, as well as public comments from a range of groups including the National Rural Electric Cooperative Association (NRECA), the Edison Electric Institute and the Internet Infrastructure Coalition.
The Treasury Department raised the possibility for framework adopters to earn "safe harbor" from liability following cyberattacks or data breaches. The agency also proposed giving framework users a faster, clearer shot at earning a security clearance to receive sensitive cybersecurity intelligence.
DHS suggested that critical infrastructure owners could get expedited assistance from the government if they were on board with the framework — while quickly adding the caveat that "operators in need of incident response support will never be denied assistance based on whether they have adopted it." Homeland security officials also floated the potential to ease rate recovery for cybersecurity investments among regulated industries like interstate natural gas pipeline companies.
The Cybersecurity Information Sharing Act of 2015, signed into law last year as part of a broader spending bill, offered a breakthrough for supporters of the NIST framework by making it easier for companies to share cyberthreat indicators and use government resources without fear of reprisal.
Other would-be bonuses fared less well. The federal government briefly tossed around giving tax breaks to critical infrastructure companies that invested in cybersecurity defenses or cyber research and development. The Commerce Department quickly closed the door on that issue, however, pointing out that "it would be difficult to ensure that tax incentives are sufficient to encourage participation in the program and do not impose undue costs on the federal government."
More incentives were singled out for further study before slipping away into the dustbin. Their fate was at least partly tied to logistics: How could agencies track adoption for deciding how to dole out rewards?
The Treasury Department once flatly acknowledged that "determining implementation of the framework will be challenging."
Ellis at Northeastern shared in those doubts about the framework's effectiveness, while noting that he still considers the document to be a "fine effort" with useful cybersecurity guidance for the 16 different sectors considered to be critical infrastructure in the United States, including the nuclear, water, energy and financial services industries.
"The framework is appropriately generic: It's designed to cover a variety of sectors and a variety of different organizations," said Ellis. "But it's very hard to call [the framework] a success or a failure without some metric or deeper study to see how it's been taken up."
'Natural market forces'
From the outset, federal officials working on the NIST framework made it clear they had no desire to make the guidelines a requirement. They wouldn't be the same as enforceable cybersecurity standards in the bulk electric power, nuclear and chemical industries.
The framework's program manager at NIST, Matt Barrett, has long defended the voluntary approach, noting that "we're big believers in natural market forces."
He said the framework is designed to help organizations find the most cost-effective cybersecurity solutions. "That, in and of itself, is super powerful without any incentive," Barrett said, while noting that it would have fallen on outside parties to pursue incentives anyway.
The voluntary approach also found favor among the private companies that contributed to the framework's development. Representatives from the bulk electric power sector pointed out that they already face binding cyber standards set through the North American Electric Reliability Corp. and the Federal Energy Regulatory Commission.
The framework's voluntary nature doesn't preclude it from being used by regulators or even taken into account by insurance underwriters. (Cyber insurance emerged as another potential incentive area in 2013.)
Suzanne Lightman, senior adviser for information security in NIST's Computer Security Division, said a December 2015 cyberattack on electric power utilities in western Ukraine, which knocked the lights out to at least a quarter-million people for several hours, has further heightened cybersecurity awareness in the industry.
"The energy sector has certainly changed its priorities in the wake of the Ukraine attack," she said. "It was a comprehensive, multiple-entry attack that did a very effective job of at least temporarily taking down a grid, and they're still having trouble recovering from it."
NIST's 'Art of the Deal'
Version 1.1 of NIST's framework, its first significant update since 2014, will seek to help organizations address supply-chain vulnerabilities made glaringly apparent in the attack on Ukraine.
The new document may not be published until after Trump takes the oath of office in January.
Barrett said he hopes the incoming administration will consider staying the course with the framework program.
"We consider this framework to be, in many ways, successful — and building on this success is a tried and true kind of management practice," he said. "So we're hopeful that would be the mentality."
Whether Trump will revive the incentives for pushing adoption of the framework is an open question. But another Obama administration cyber effort could offer a glimpse at Trump's appetite for incentives.
The president's Commission on Enhancing National Cybersecurity, a panel of experts convened by Commerce under a 2016 executive action, is preparing to publish a list of concrete steps and strategies for securing cyberspace in the United States, including critical infrastructure.
The commission's executive director, Kiersten Todt, has indicated that her group will likely pass on recommending a regulatory approach in favor of voluntary actions and encouragement.
"One of the key issues is looking at incentives. That's something that the commission has been examining from the beginning," she said.
"So we are addressing it in the report," she added. "The ways in which we'll do that are obviously still being determined and reconciled, but you will see some language looking at that and the importance of human behavior and incentives when it comes to cybersecurity."
http://www.eenews.net/energywire/2016/11/28/stories/1060046249
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Inside the Environmental Fight Against Cap and Trade
Nov 28, 2016 | E&E Climatewire
By Debra Kahn
Environmental justice groups first made their mark on California's cap-and-trade system in 2009, when they sued over the state's choice of an emissions market over more direct regulations. The lawsuit succeeded only in delaying the start of trading, but activists aren't done yet.
One of the movement's major victories this year was the passage of A.B. 197, by state Assemblyman Eduardo Garcia (D). Enacted alongside S.B. 32, the bill that extends the state's emissions targets through 2030, it specifies that the state's Air Resources Board is to "prioritize" regulations that reduce direct emissions from stationary and mobile sources.
ARB and mainstream environmental groups are now grappling with the implications of A.B. 197, which are still unclear — by design, a key environmental justice strategist says, in order to allow the public and Legislature to inform implementation.
Just as indigenous groups oppose international market-based climate policies on the grounds that they commoditize and devalue natural resources, domestic justice groups also bristle at being presented with ready-made policies like cap and trade and carbon offsets, which, they argue, shift financial and environmental benefits even further afield.
"We don't want to silo the solutions," said Parin Shah, senior strategist for the Asian Pacific Environmental Network. "We think it's possible to bring together environmental and social policy, and if anything, we should be prioritizing local pollution reductions so that we're improving the quality of life of all Californians because then we are building a long-term, durable political movement to be able to address global issues."
At the least, the environmental justice groups have thrown a wrench into California's relatively smooth climate policymaking apparatus. For the first time, under a bill last year by former Assembly Speaker Toni Atkins (D), there are two spots on the ARB's 14-member board devoted to environmental justice. They are also the first board members to be appointed by the Legislature, rather than the governor, introducing new challenges to ARB Chairwoman Mary Nichols' authority.
Atkins' appointee to the ARB, Diane Takvorian, has been raising concerns about cap and trade in light of A.B. 197, arguing that ARB should do a more thorough evaluation of alternatives and wait until it has more evidence of trading's effect on poor people.
Some evidence has already come out. A study released earlier this year by professors at the University of Southern California and University of California, Berkeley, found that more than 100 in-state industrial facilities have increased their direct greenhouse gas emissions since trading began in 2013, and that such increases are associated with emissions of fine particulate matter, which contributes to asthma (ClimateWire, Sept. 20). Another study, by the state's Office of Environmental Health Hazard Assessment, is due out by the end of the year.
"That report seems to clearly indicate that there's some big shortcomings," Takvorian, executive director of the Environmental Health Coalition, said of the academics' paper. "I think we need to see that, we need to hear a response from the CARB staff on this research paper, before we can start to answer those questions about is it cap and trade or not."
Environmental justice groups' maneuvering may end up pushing industry toward embracing cap and trade, according to some environmental observers. The combination of state authority to pursue emissions cuts through 2030 and the threat of more direct regulations could make cap and trade the most attractive option.
"I think that 197 represents the agreement that we do need to have more direct emissions reductions," said Bill Magavern, policy director for the Coalition for Clean Air. "That's the biggest fear of oil companies. WSPA [Western States Petroleum Association] got their butts kicked and ended up with a law that says we're going to do more direct emissions reductions."
In the meantime, groups like the Asian Pacific Environmental Network, which conducts "toxic tours" of refineries, railways and Superfund sites, are becoming more optimistic. Examples of the "just transition" include urban farms, solar panels and a greenway where railroad tracks used to be.
"They were only toxic tours because we couldn't point to the good things," said Mari Rose Taruc, a former state organizing director for APEN who now serves as chairwoman of ARB's Environmental Justice Advisory Committee. "Now that we're winning things, we have the good stuff to point to."
http://www.eenews.net/climatewire/2016/11/28/stories/1060046232
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Cato Institute Attacks Use of 'Co-Benefits' in Utility MACT Cost Analysis
Nov 28, 2016 | Inside EPA
By Stuart Parker
The free-market Cato Institute in a new legal filing is attacking EPA's use of “co-benefits” of reductions in fine particulate matter (PM2.5) in its revised assessment of the costs of the agency's utility air toxics rule, saying the cost finding is unlawful because EPA cannot rely on PM2.5 cuts to justify the costs of air toxics controls.
In a Nov. 25 amicus brief filed with the U.S. Court of Appeals for the District of Columbia Circuit in Murray Energy Corporation, et al., v. EPA, et al., Cato says EPA's April 15 revised cost finding supporting its power plant maximum achievable control technology (MACT) air toxics rule still falls far short of the cost analysis required by the Supreme Court in its June 2015 finding in Michigan v. EPA, a case over the MACT.
The high court remanded back to the D.C. Circuit EPA's initial finding that it was “appropriate and necessary” to regulate the sector with a MACT, saying EPA unreasonably failed to consider implementation costs in the finding, which is a legal prerequisite to regulation. The agency then succeeded in having the D.C. Circuit remand the rule back to it while it worked on an updated cost review, which it then issued in April.
EPA said the revised cost assessment showed that the benefits of the rule still far outweigh the costs, and that it reaffirmed the decision that the MACT was appropriate and necessary.
Several states and power companies opposed to the rule disagreed with that conclusion and filed suit in the D.C. Circuit over the cost assessment -- even though the compliance deadline for the rule has passed.
Separately, Cato says in its amicus filing that EPA's cost finding “evinces the same blindness that landed the agency in the Supreme Court in the first place.”
The agency in its revised version draws on the original cost-benefit analysis developed for the MACT rule itself, which finds that rule's benefits, expressed overwhelmingly in terms of PM2.5 cuts, far outweigh its costs.
EPA in the revised finding also conducted an analysis of whether the power sector can bear the implementation costs, citing as support for this approach the late Justice Antonin Scalia's opinion in Michigan, which did not call for a full-fledged cost-benefit analysis in the “appropriate and necessary” finding.
However, industry and state opponents of the MACT rule, which is also known as the Mercury and Air Toxics Standards (MATS), say EPA's choice not to reexamine costs and benefits in depth fails to satisfy the high court's finding. They further argue EPA cannot rely on the co-benefits of reducing PM2.5 in a rule targeting hazardous air pollutants (HAPs).
Cato in its amicus brief echoes these concerns, arguing that the Clean Air Act prohibits EPA from using the MACT to regulate PM2.5, a “criteria” pollutant regulated separately under the national ambient air quality standards (NAAQS).
Co-Benefit 'Externalities'
The co-benefits “are best understood not as benefits, but regulatory externalities -- reductions in non-HAPs, such as fine particulate matter, that Congress has barred EPA from regulating under Section 112” of the air law, Cato says. PM2.5 is regulated under Clean Air Act sections 108, 109 and 110, and by “collapsing these separate provisions and regulating fine particulate matter under air law section 112, EPA destroys the deliberate balances struck in the Clean Air Act, and arrogates to itself a power that Congress never granted,” the institute says.
Cato argues that this has far-reaching effects on the relationship between states and the federal government, because while states have primary responsibility for regulating NAAQS pollutants, air toxics regulations are imposed directly at the federal level. “EPA’s decision to make an end-run around the NAAQS program violates the program’s fundamental premise: that States have the primary authority to determine how best to control the emissions of the ubiquitous NAAQS pollutants,” the brief says.
Cato then criticizes at length EPA's estimation of monetized health benefits from reducing HAPs under the MACT, calling EPA's estimates “specious.”
For example, EPA's analysis predicts a 23 ton per year reduction in emissions of mercury, one of the primary HAPs targeted by the rule. But because “U.S. deposition due to domestic emissions is roughly proportional to U.S. sources’ share of global emissions, this reduction in emissions could be expected to reduce domestic mercury deposition by substantially less than a single percentage point. Accordingly, the MATS Rule does almost nothing to reduce human exposure to mercury,” Cato says.
EPA further exaggerates the likely risk to humans posed by mercury, by assuming rates of fish consumption far beyond the norm premised on “hypothetical fisherwomen,” Cato says.
The institute also attacks EPA's claims regarding benefits of reducing other HAPs, which cannot be readily quantified. EPA claims it need not quantify all health benefits in order to regulate, but Cato says, “the Clean Air Act does not provide the EPA plenary authority to reduce air emissions as the agency sees fit.” Rather, the air law “requires that EPA demonstrate that reducing these power plant HAP emissions would actually benefit people or the environment by connecting hazardous air pollutant emissions from power plants to the effects of those emissions.”
http://insideepa.com/daily-news/cato-institute-attacks-use-co-benefits-utility-mact-cost-analysis
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