Preview Newsletter
ACC PM 1/3/2017
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The FDA’s Rigged Drug Committees
Dec 30, 2016 | Wall Street Journal
By Associated Press
Among the Republican priorities in 2017 should be dismantling a culture of bureaucratic control at the Food and Drug Administration that poisons innovation and costs lives. Here’s an idea: Update part of the approval process that was patient zero for distorting data on a drug for Duchenne muscular dystrophy. -
California Brake Pad Regulation Takes Effect
Jan 3, 2017 | Chemical Watch
A California regulation went into effect on 1 January that aims to reduce, over the next eight years, the amount of copper allowed in commercial brake pads. -
N.Y. Removes PCB-Tainted Lights from 883 City Schools
Jan 3, 2017 | E&E Greenwire
By Gabriel Dunsmith
New York City completed the removal of toxin-laced lighting fixtures from hundreds of school buildings last month, after a yearslong effort by public health groups forced the city to take action. -
Climate Change a Bull's-Eye in the Era of All-Republican Rule
Jan 3, 2017 | E&E Climatewire
By Emily Holden and Evan Lehmann
The Republican climate agenda begins today. With the opening of the 115th Congress, the GOP is poised to begin altering the nation's direction on greenhouse gases across the economy, from electricity and transportation to trade and foreign policy. -
Fate of Last-Minute Obama Rules in Trump's Hands
Jan 3, 2017 | E&E Greenwire
By Christa Marshall
President-elect Donald Trump will decide the fate of five efficiency rules released last week that could save consumers more than $30 billion. -
14 States Warn Trump of Legal Battle to Protect Rule
Jan 3, 2017 | E&E Greenwire
By Hannah Hess
If President-elect Donald Trump discards the Clean Power Plan, his administration will meet 14 states in court, a coalition of attorneys general warned last week. -
EPA to Consider Updating Drilling Waste Regs
Jan 3, 2017 | E&E Energywire
By Ellen M. Gilmer
U.S. EPA will consider revising standards for oil and gas waste for the first time in decades, thanks to a legal settlement with environmentalists. -
Judge Deems 24-Hour Spill Notification Rule an Overreach
Jan 3, 2017 | E&E Greenwire
A proposed rule in Florida that would have required the media to be alerted of a spill or pollution release within 24 hours of the incident has been deemed a overreach of the Florida Department of Environmental Protection's legislative authority, according to a state judge. -
Vt. Utility Finds Russian Malware
Jan 3, 2017 | E&E Energywire
A Vermont utility has detected code associated with a Russian hacking operation known as Grizzly Steppe, according to U.S. officials. -
Trump EPA Nominee Scott Pruitt Would Trash Air and Water Safeguards
Jan 3, 2017 | Huffington Post
By Elliott Negin
Nominating Oklahoma Attorney General Scott Pruitt to run the Environmental Protection Agency gives lie to Donald Trump’s claim that he is serious about protecting the public from pollution. -
Air: EPA Tightens Air Toxics Control Requirements for Pulp Mills
Jan 3, 2017 | Inside EPA
EPA is proposing to tighten some emissions control requirements for pulp mills, based on a review of the sector that found health risks “acceptable” but nonetheless concluded that deeper emissions cuts from the sector are achievable at reasonable cost due to advances in air pollution control technology.
Industry and Association News
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Environment News
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The FDA’s Rigged Drug Committees
Dec 30, 2016 | Wall Street Journal
By Associated Press
Among the Republican priorities in 2017 should be dismantling a culture of bureaucratic control at the Food and Drug Administration that poisons innovation and costs lives. Here’s an idea: Update part of the approval process that was patient zero for distorting data on a drug for Duchenne muscular dystrophy.
We’ve reported on the drama over eteplirsen, which FDA approved in September and is now marketed as Exondys 51 by Sarepta Therapeutics. Midlevel bureaucrats have since disparaged the therapy in public, and some insurers are denying coverage. Much of the confusion results from an April show trial known as an advisory committee meeting. A process that is supposed to provide independent advice to the FDA instead became a venue to mislead a panel of nonexperts—and the public—about the drug’s efficacy.
Advisory committees exist so FDA can solicit expert counsel, but the agency stacks panels with allies whose career currency is prestige and government funding. Such committees usually vote the way FDA wants—and then the agency tends to follow the recommendation. On eteplirsen, the panel voted 6-7 against accelerated approval after a critical FDA review, which was later overruled by agency management in a rare exception amid unusual public scrutiny.
The 13-member committee that checked out eteplirsen included: a psychiatrist, a stroke doctor and several others with no experience in Duchenne. The agency seldom invites true experts because anyone who has ever talked to a drug company is deemed financially conflicted. In rare diseases like Duchenne, that problem is more pronounced because the pool of experts can be so limited.
Yet meet Caleb Alexander, chairman of the committee. Dr. Alexander invited speakers at the meeting to state organizations they represent. He read this statement at least a dozen times but neglected to mention his own conflict of interest: Dr. Alexander has received a large FDA grant, information that is available online. The conceit is that folks like Dr. Alexander are less motivated by pecuniary interests than someone who has consulted for a company. Dr. Alexander voted against approval.
Sarepta was barely allowed to defend itself at the meeting, which allowed agency distortions to appear as fact. One example: FDA’s documents for Sarepta claim that patients “commonly maintain ambulation to older ages than is often realized, to 18 years or perhaps even older.” Yet the same materials for a Duchenne drug reviewed fewer than six months earlier say that “by age 10-14, patients become wheel chair bound.” This looks like an attempt to make Sarepta’s clinical results look less significant.
FDA’s review also relied on a chart to convince the panel that boys on the drug over time walked no better than patients who were not treated. But we’ve reviewed compelling evidence that someone manipulated the x-axis in later years to make the results look more damning for Exondys. This contentious visual was treated as gospel.
Supportive experts were relegated to the public hearing portion of the meeting for brief comments. Pediatric neurologists, the geneticist who discovered the gene for Duchenne, clinical researchers and others had to move fast through slides and data. The FDA’s lead reviewer, an eye doctor, talked for about an hour.
The nonprofit Jett Foundation collected data on falls, fatigue and other outcomes that the panel more or less ignored. These patient measures will be invaluable as rare diseases become better understood. FDA has the legal authority to incorporate patient data in decisions, but the bureaucracy never does.
At the end of the day, panelists vote on approval questions, and even here FDA tilts the outcome. The agency’s guidance says questions should have “minimal qualifiers” so as not to confuse the committee. So let’s look at one of the questions FDA asked the panel to ponder:
“Do the clinical results of the single historically-controlled study (Study 201/202) provide substantial evidence (i.e., evidence from adequate and well-controlled studies or evidence from a single highly persuasive adequate and well-controlled study that is accompanied by independent findings that substantiate efficacy) that eteplirsen is effective for the treatment of DMD?”
Are you still reading? The obfuscation led one committee member who voted no, Bruce Ovbiagele, to deliver this insight: “Based on all that I heard, the drug definitely works, but the question was framed differently.” Imagine hearing this if you are the parent of a Duchenne boy.
If FDA is going to run these committees merely to achieve a predetermined outcome, then let’s skip the exercise. Drug sponsors should at least be allowed to object to candidates for the panel and be granted time to refute the agency’s contentions, as Joseph Gulfo, executive director of the Lewis Center for Healthcare Innovation and Technology, has suggested. The panels should also include several members who have treated the disease.
These changes would return advisory committee meetings to their original purpose as an outside check on FDA bias or groupthink. If Donald Trump is serious about making government accountable to the people who pay for it, FDA is a prime candidate for reform.
http://www.wsj.com/articles/the-fdas-rigged-drug-committees-1483140671
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California Brake Pad Regulation Takes Effect
Jan 3, 2017 | Chemical Watch
A California regulation went into effect on 1 January that aims to reduce, over the next eight years, the amount of copper allowed in commercial brake pads.
It comes as part of the implementation of a 2010 state law prohibiting the sale of brake pads in California that contain more than trace amounts of copper, certain heavy metals and asbestos. Parts of the law have already taken effect, most notably a restriction on brake friction materials since 2014.
The new regulation gives manufacturers an opportunity to phase out non-compliant brake pads. They will no longer be able to sell those made up of more than 5% copper by weight on or after 1 January 2021. This will drop to 0.5% on 1 January 2025.
The regulations also require the manufacturers of brake friction materials to test their products and have those results certified by a third-party agency by 2021. The testing certification body is responsible for reviewing and certifying the manufacturer’s data, and issuing the environmental compliance level.
California lawmakers created the brake pad law in 2010, after a US EPA study found an estimated 1.3m pounds of copper dust in the air from them. While this and other trace elements are essential for biological activity in the environment, those same substances can be detrimental in high concentrations, it said.
The rules are a product of a five-year collaboration between the Department of Toxic Substances Control, the brake friction material industry, NGOs and the state of Washington, the California EPA said in a statement. Washington passed a similar law earlier in 2010 and instituted regulations in 2012.
The US automotive industry agreed to similar, wider-reaching voluntary measures in 2015. Eight industry groups signed an agreement with the US EPA and state agencies to reduce copper – along with mercury, cadmium and other materials – in brake pads.
https://chemicalwatch.com/51905/california-brake-pad-regulation-takes-effect
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N.Y. Removes PCB-Tainted Lights from 883 City Schools
Jan 3, 2017 | E&E Greenwire
By Gabriel Dunsmith
New York City completed the removal of toxin-laced lighting fixtures from hundreds of school buildings last month, after a yearslong effort by public health groups forced the city to take action.
The fixtures contained polychlorinated biphenyls, or PCBs, a chemical compound once widely used as electrical coolants. As they break down, old light ballasts can leak, volatilize and emit smoke, pumping the toxin into indoor air and threatening students' health, according to U.S. EPA.
Scientists note that children are especially susceptible to chemical exposure because they are smaller than adults and are still developing.
EPA first discovered PCBs in the city's public schools in 2011, where testing showed 80 percent of samples exceeding the federal threshold of 50 parts per million. At one Brooklyn school, EPA detected pure product — 1 million parts per million — in a lighting fixture.
The chemical group, formerly manufactured by Monsanto Co., is linked to endocrine disruption, cancer and damage to the immune, reproductive and nervous systems. Congress banned PCBs in 1979, but the compound has persisted in the environment and is routinely targeted for cleanup. In October 2016, Sen. Ed Markey (D-Mass.) and the nonprofit Environmental Working Group estimated that millions of schoolchildren across the country are still exposed to the toxin (Greenwire, Oct. 5, 2016).
New York City initially set a 10-year timeframe for cleanup, but a successful lawsuit brought by New York Communities for Change and New York Lawyers for the Public Interest in 2011 mandated a five-year removal timeline.
The city government ultimately addressed PCB-tainted fixtures at 883 public schools.
EPA praised the completion of the effort.
"PCBs are a particular risk to children because PCBs can damage their neurological system and affect their ability to learn," said EPA Region 2 Administrator Judith Enck in a statement. "That is why it was so important to remove lighting fixtures that contain PCBs from all public schools in New York City. The New York City Department of Education is to be commended for protecting children's health and saving energy with new and improved lightings."
Public health groups, however, were more cautious in their assessment.
Rachel Spector, environmental justice director for New York Lawyers for the Public Interest, said that New York "would not have gotten to this point ... had it not been for our lawsuit."
"We think it's a huge achievement, but we're still in the process of confirming" the city's claims, she continued. "We shouldn't forget that there are other sources of PCBs that are still present in the schools."
New York and EPA have jointly acknowledged that caulk and other building materials in the city's schools may still contain the toxin.
http://www.eenews.net/greenwire/2017/01/03/stories/1060047749
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Climate Change a Bull's-Eye in the Era of All-Republican Rule
Jan 3, 2017 | E&E Climatewire
By Emily Holden and Evan Lehmann
The Republican climate agenda begins today.
With the opening of the 115th Congress, the GOP is poised to begin altering the nation's direction on greenhouse gases across the economy, from electricity and transportation to trade and foreign policy.
Republican measures once seen as symbolic provocations against a liberal president are now considered mainstream policy. Efforts to reverse rules on power plant emissions, terminate a global climate agreement, rescind the social cost of carbon, and expand oil and gas drilling are all possible beginning in 17 days, when Donald Trump takes the oath of office.
The first big collision of 2017 is set for next week. Rex Tillerson, CEO of Exxon Mobil Corp., will appear before a Senate panel for his confirmation hearing as Trump's nominee for secretary of State, setting off a string of battles over the president-elect's choices to lead U.S. EPA and the departments of Energy and State.
Democrats and their allies are vowing to make the hearings a public trial over climate skepticism. They say Scott Pruitt, tapped to lead EPA, and Rick Perry, the Energy nominee, are their top targets, based on the nominees' doubtful views of climate science.
"Yes, there should be a climate test," said David Goldston, director of government affairs at the Natural Resources Defense Council. "This is pretty late in the day to have climate deniers anywhere in the government, not to mention running the agencies that are responsible for leading the U.S. and, therefore, the global efforts against climate [change]."
This year stands to offer a whirlwind of policy changes by a president-elect who questions whether humans affect global temperatures. Trump's campaign promises to roll back the Clean Power Plan, withdraw from the Paris Agreement and incapacitate other environmental regulations could dominate most of 2017, according to observers.
But there's also a view that Republicans could pursue policies that reduce emissions.
Dave Banks, a climate adviser in the George W. Bush administration, said he believes Trump could eventually focus on technological innovations like carbon capture and sequestration. Bush did something similar in his second term by promoting hydrogen cars, biofuels and energy efficiency.
And Tillerson might be the leading voice in the administration, Banks said. The oilman accepts basic climate science, making him stand out among Trump and his other nominees.
"You're going to have a constructive approach with Rex Tillerson. It's just a matter of when," Banks said. "The EPA stuff will dominate the headlines, but at a certain point it'll start looking, I think, more like a George W. Bush position where we start talking about innovation, we start talking about clean energy technology as a way of reducing emissions without harming the economy."
"But if we're talking about [this] year, I might be surprised," he added.
Some Democrats say Trump now owns the Republican Party's identity crisis on climate. For years, the party has questioned whether climate change is a problem that needs to be addressed. The consequences were small, because those views were married to opposition against President Obama's policies.
Now that the GOP is leading the legislative and executive branches, it could pursue policies promoting nuclear power, research investments in energy technology, energy efficiency and other measures accepted by conservatives, said Paul Bledsoe, a former climate aide in the Clinton White House.
"The question is, does [Trump's] team have the political perspicacity and vision to begin the creation of a distinctly Republican climate policy response? Because right now, there isn't one," he said.
'Theatrical things to do'
For now, 2017 will be devoted to undoing Obama's climate programs. That work could begin as soon as Trump takes office. But accomplishing it might take time.
Eliminating greenhouse gas regulations through the rulemaking process, for example, requires "a lot of documentation and even research," said Mark Muro, a senior fellow and policy director at the Brookings Institution Metropolitan Policy Program. "It's not like you just get to sign a document and it's gone."
It's also likely that career staff at agencies could be outwardly cooperative with Trump's orders — but only sluggishly comply with them. Other delays are bound to arise. Lawsuits by environmental organizations over the Clean Power Plan and other Obama-era climate policies could take years to clear up.
In the meantime, the power industry stands to experience uncertainty as the Trump administration reshapes the nation's greenhouse gas agenda. That might add its own complications if utilities ask the president for relief from turbulence.
"I would look for them to find small, kind of symbolic, theatrical things to do early," Muro said of the administration. "But many of these things will take maybe two to three years if all goes well for them. While there's clearly clear and present danger for some of these regulations, it'll be sort of a slow-moving process."
Getting at some of Trump's targets — like exiting the Paris Agreement to curb greenhouse gas emissions or eliminating the Clean Power Plan — won't necessarily require working with Congress. But it would be easier if the lawmakers help.
Those familiar with the House and Senate say two key things will be in short supply this year: time and political capital.
"What Congress does better than anything else is nothing," said David Bookbinder, a Niskanen Center scholar who has represented environmental groups in clean air litigation.
Most action in Congress requires 60 votes in the Senate to overcome a filibuster. Passing legislation means persuading at least eight Democrats to partner with the Republican majority. Some potential GOP objectives, like rescinding EPA's authority to regulate greenhouse gases, would be impossible to achieve without swaying Democrats who are downright resistant, or without changing the Senate rules.
Both are difficult feats, especially with limited time. The congressional schedule will also be packed, adding more layers of complexity.
Congress could focus first on repealing Obama's signature health care rule, crowding out climate-related rollbacks. In the meantime, the Senate will be overscheduled with confirmation hearings for Trump's Cabinet nominees. Then in March, legislators will have to approve a budget to replace a short-term spending measure.
That budget could slash funding for research into climate change and technological improvements meant to accelerate the transition away from fossil fuels.
The congressional process for passing spending bills is different from the process for other legislation. It is not subject to filibuster and allows only limited consideration of amendments. That means Democrats will be hard-pressed to stop Republicans from using their majority in the House and their 52 votes in the Senate to rewrite agency budgets.
Even if a new budget does strip research and other programs, wind and solar power are expected to grow, pushing more coal power offline.
Federal tax incentives will help with that growth. Rescinding those measures, like the production tax credit, would be difficult because they are popular among rural conservative lawmakers in windy states.
"If you're looking forward to the next two years and what we're going to see in the meantime, most present market trends will continue. And those are now extremely favorable for natural gas and, in many places, renewables," said Muro. "If there's an emergency here, it's kind of a slow-moving emergency for the decarbonization paradigm."
Senate speaks on Paris?
To kill the Paris climate deal, Trump has several options. He can issue an executive order that is immediate but may be vulnerable under international law. Or he can start the process of exiting the U.N. Framework Convention on Climate Change, the 1992 treaty under which nations agreed to the Paris deal. That would take at least a year and would have more permanent ramifications.
Alternatively, he could ask the Senate to vote on whether to ratify the Paris Agreement. It's sure to lose. The GOP-controlled Senate couldn't muster the two-thirds vote necessary to make the deal official.
Marlo Lewis, a senior fellow at the Competitive Enterprise Institute, said his group thinks "it's highly valuable to reaffirm the Senate's role in treaty-making."
"We don't want a Republican version of Obama who thinks that by pen and phone you can legislate everything. We want a president who respects the Constitution," he said.
If Trump does not pursue any of those options, his policy agenda and Cabinet picks have signaled that the U.S. will not achieve its climate commitments made in Paris.
Even if Democratic nominee Hillary Clinton had won the presidency and ramped up climate action, the United States still would have had trouble meeting that goal — a 26 percent reduction below 2005 carbon levels by 2025.
Bookbinder said not fulfilling the global promises will make it hard for Tillerson to negotiate on other issues.
"His job as secretary of State gets much more difficult on all the other issues if the U.S. backs out of Paris," Bookbinder said. "You don't generate goodwill and cooperation on issues A, B, C and D if you've pulled out on this incredibly important issue E."
Trump also has multiple ways to eliminate EPA's Clean Power Plan, the rule to reduce carbon emissions from the power sector 32 percent below 2005 levels by 2030.
Trump could initiate a rulemaking to roll back the rule. Or he could ask the courts to remand the rule, in the hopes of giving EPA a chance to rewrite it under the leadership of his agency nominee, Pruitt. Under such a scenario, the agency could propose bare-bones efficiency improvements for coal plants and give companies years to comply.
It's also possible the Supreme Court could consider the regulation and strike it down. If it upholds the rule, see the scenarios above.
Infrastructure and climate
Republicans in Congress have already expressed interest in using the Congressional Review Act to strike down regulations passed in June 2016 or later. The 1996 statute allows lawmakers to reverse unfinished rules with a simple majority. But it prevents agencies from taking similar action in the future, and it's only been used once. It's unclear whether industry would endorse that path.
Some Republican lawmakers are considering eliminating standards for methane emissions at new oil and gas operations and from those operated on public lands (Climatewire, Nov. 30, 2016).
Trump's agencies can also open up public lands for more oil and gas drilling and coal mining. For now, oil prices are low and so is production, so that might temper industry interest. Coal leases might not see a huge amount of interest either, analysts note.
On a broader scale, Trump has pitched a $1 trillion infrastructure package, although it's unclear how much of it would focus on energy. Still, advocates say Trump has an opportunity to improve the electricity grid, expand cleaner forms of transportation by investing in high-speed rail and charging stations for electric vehicles, and protect communities against severe weather.
"It's about creating the infrastructure for the next economy, not just the old one," Bledsoe said.
Republicans are also considering overhauling the tax code, a behemoth political task. And there's already disagreement between the House and Senate.
House leaders want to tax corporate revenue instead of corporate income. That would mean taxing revenue abroad and imposing an import tax of up to 20 percent. An import tax would raise the price of everyday goods Americans buy, including from retailers like Wal-Mart that are paying close attention to the tax talks. An import tax could also raise gasoline prices 30 cents per gallon, according to a recent study by the Brattle Group.
Within agencies, conservative interests are already pushing for restructuring the way officials consider environmental rules.
The Competitive Enterprise Institute wants EPA to focus on meeting its statutory deadlines for writing standards so it won't have as much time to pursue issues like climate change. Myron Ebell, who oversees CEI's global warming program, is heading Trump's transition team at EPA.
CEI also wants EPA to stop counting co-benefits of regulations. For example, EPA counted the health benefits of limiting air pollutants in its overall figures for the Clean Power Plan.
New agency heads will have wide latitude to change those sorts of protocol.
http://www.eenews.net/climatewire/2017/01/03/stories/1060047703
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Fate of Last-Minute Obama Rules in Trump's Hands
Jan 3, 2017 | E&E Greenwire
By Christa Marshall
President-elect Donald Trump will decide the fate of five efficiency rules released last week that could save consumers more than $30 billion.
The Department of Energy issued final national standards for portable air conditioners, swimming pool pumps, commercial boilers, walk-in coolers and freezers, and uninterruptible power supplies, which provide backup power for devices like computers.
It's part of an unprecedented push by the Obama administration to slash carbon emissions through energy reductions in appliances and buildings.
According to DOE, carbon emission reductions from just one of the rules — pool pumps — would be the equivalent over 30 years to the annual emissions from 42 million cars. The standards for portable air conditioners, swimming pool pumps and uninterruptible power supplies would be the first nationally, if finalized.
But under a DOE process, there is an automatic 45-day review period for final efficiency rules before publication in the Federal Register. As a result, the incoming administration holds discretion over whether to send them to the publication in early February, or later.
"We're in new territory here," said Andrew deLaski, executive director at the Appliance Standards Awareness Project. "This is not a situation that has ever come up before."
The 45-day review kicked in for the first time this year. It is unique to efficiency standards because of litigation prompted by a DOE error in an earlier final efficiency rule that resulted in a more stringent standard than planned.
Trump has said little about efficiency specifically but pledged to eliminate two federal rules for every new one. A leaked questionnaire from the Trump transition team to Department of Energy officials also asked about efficiency standards, stating, "What is the statutory charge to the Department with respect to efficiency standards? Which 30 products are subject to statutory requirements and which are discretionary to the GC Department?"
DeLaski said he was hopeful about the fate of efficiency rules partly because of the record of Trump's Energy secretary pick, Rick Perry. The former Texas governor signed efficiency standards into law in his state for water-using products to address a persistent drought.
"I think that indicates that he's willing to support this policy at least under some circumstances," deLaski said.
It won't be easy for Trump to undo efficiency standards finalized under Obama because of existing language blocking the release of standards weaker than existing ones, according to deLaski. But Congress holds a lot of power to change the trajectory.
"They could undo the whole efficiency law if they wanted to," said one environmentalist.
Republicans are planning a widespread attack on Obama regulations (E&E Daily, Jan. 3).
And some of Trump's advisers like Rep. Marsha Blackburn (R-Tenn.) have introduced bills or amendments against DOE's efficiency standards on appliances, saying they represent regulatory overreach.
DeLaski said he was encouraged by support for efficiency rules from prior Republican presidents, including George W. Bush and Ronald Reagan. Reagan, for example, signed the first efficiency standards into law in the 1980s.
Environmentalists said the five rules would have a dramatic impact on energy use and save billions of dollars. Many portable air conditioners, for example, tend to heat rooms rather than cool them because of inefficient designs (Greenwire, April 28, 2016).
In a blog posting, the Natural Resources Defense Council said that existing pool pumps are one of the biggest energy hogs and new standards would increase efficiency of many of the appliances by 70 percent. Similarly, the walk-in freezer rule would cut CO2 emissions by the equivalent of the annual emissions of 10 million cars, the group said.
Two of the rules resulted from an internal DOE negotiation between environmentalists and industry.
Stephen Yurek, president of the Air-Conditioning, Heating & Refrigeration Institute, said in statement that it approved the negotiated provisions of the freezer and cooler rule. The institute said it had several concerns about the boiler standards because of installation costs and other issues.
"We look forward to working with the Trump administration as it reviews DOE rulemakings prior to their being finalized," Yurek said.
http://www.eenews.net/greenwire/2017/01/03/stories/1060047754
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14 States Warn Trump of Legal Battle to Protect Rule
Jan 3, 2017 | E&E Greenwire
By Hannah Hess
If President-elect Donald Trump discards the Clean Power Plan, his administration will meet 14 states in court, a coalition of attorneys general warned last week.
The "far more efficient path" for U.S. EPA's signature climate rule is to let pending litigation before the U.S. Court of Appeals for the District of Columbia Circuit run its course, wrote New York Attorney General Eric Schneiderman (D) and the top prosecutors representing 13 other states and four localities.
The letter pushes back on a request from 24 states fighting the Clean Power Plan in court who called on Vice President-elect Mike Pence and congressional leaders to kill the regulations before judges rule (E&E News PM, Dec. 15, 2016).
"Our states and local governments are on the front lines of climate change," last week's four-page letter to Trump begins, outlining potential harms "from severe drought in California, catastrophic storm surge in New York City, a record deluge on the Front Range in Colorado, routine high tide flooding in Hampton Roads, Virginia and in South Florida, or diminished shellfish harvest in Oregon or Washington State."
Opponents of the rule want an executive order on "day one" of Trump's presidency declaring that the rule is unlawful. They say he should instruct EPA to halt implementation and enforcement of the plan, which envisions a 32 percent reduction of carbon dioxide emissions from the electricity sector by 2030.
"History and legal precedent strongly suggest that such an action would not stand up in court," the letter states, pointing to President Truman's seizure of steel mills during the Korean War. The Supreme Court ruled 6-3 that Truman's action was unconstitutional, in a landmark opinion that was seen as a significant curb on executive power.
Many of the attorneys general urging Trump against withdrawing the rule represent states that are already working to transition to less carbon-intensive power generation. New York and eight other states are part of the Northeast's Regional Greenhouse Gas Initiative, for instance.
Environmental law experts, including the Natural Resources Defense Council's David Doniger, have also warned an executive order from Trump would launch a court backlash. Scrapping the rule would require a lengthy rulemaking process.
Trump allies maintain the president-elect does have the legal authority to halt the plan.
Competitive Enterprise Institute senior fellow William Yeatman criticized the Democratic attorneys general Friday, suggesting there were gaps in their reasoning. Yeatman said their argument conflates EPA's duty to regulate carbon dioxide emissions with the regulation itself, which he believes is illegal.
http://www.eenews.net/greenwire/2017/01/03/stories/1060047734
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EPA to Consider Updating Drilling Waste Regs
Jan 3, 2017 | E&E Energywire
By Ellen M. Gilmer
U.S. EPA will consider revising standards for oil and gas waste for the first time in decades, thanks to a legal settlement with environmentalists.
The agreement, reached just before Christmas and finalized in a consent decree last week, requires the agency to review guidelines under the Resource Conservation and Recovery Act (RCRA) and determine whether they should be revised to include waste from the oil and gas industry.
Environmentalists have been pushing for updated regulations for years, urging EPA to lift drillers' longtime exemption from RCRA's hazardous waste rules. They say closer scrutiny is especially important as oil and gas development and associated waste have increased in recent years.
Drilling waste, including produced water and fracking fluid, is typically injected into disposal wells or stored in wastewater pits or tanks. New RCRA requirements would set safety standards for management and disposal of the material.
"This consent decree is a step in the right direction toward fulfilling EPA's duty to the public," Environmental Integrity Project attorney Adam Kron said in a statement. "EPA has known since 1988 that its rules for oil and gas wastes aren't up to par, and the fracking boom has made them even more outdated. Our communities deserve the best possible protections for their health and the environment."
In 1988, EPA affirmed the longtime exemption for oil and gas waste but recommended tailoring solid waste requirements for the industry. Environmentalists say the agency has shirked its duty to review solid waste rules and state guidelines every three years and revise when necessary.
The Environmental Integrity Project was one of several groups that filed a lawsuit against EPA over the exemption earlier this year. The Natural Resources Defense Council; Earthworks; the Responsible Drilling Alliance; the San Juan Citizens Alliance; the West Virginia Surface Owners' Rights Organization; and the Center for Health, Environment and Justice were also part of the suit.
Under the consent decree, which is binding on EPA regardless of administration, the agency will have until March 2019 to determine whether a revision is necessary. If it decides to move forward with an update for oil and gas waste, it must do so by July 2021.
"We are pleased that the Court approved the parties' agreement," NRDC senior policy analyst Amy Mall said in a statement. "EPA is long overdue to take a closer look at the unique risks posed by oil and gas waste. We will hold the incoming administration accountable for heeding this call, and we will continue to fight to ensure communities get the protection they need from this toxic mess."
If the agency updates the regulations for oil and gas, much of the work will fall to state officials. States typically take the lead on implementing RCRA requirements and would have to update their oversight plans to cover oil and gas.
Industry groups have expressed frustration at the consent decree. The Independent Petroleum Association of America, which sought to intervene in the lawsuit, said states are already effectively regulating oil and gas waste and accused the environmentalists of simply trying to hamper development.
"These wastes — as EPA has concluded in the past — are effectively regulated by state agencies," Executive Vice President Lee Fuller said in a statement. "We are reviewing the consent decree and will work with the EPA and state regulators to produce an outcome that prevents the unnecessary burden of additional federal regulations and prevents opportunities for future environmental litigation by Keep It in the Ground activists."
http://www.eenews.net/energywire/2017/01/03/stories/1060047694
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Judge Deems 24-Hour Spill Notification Rule an Overreach
Jan 3, 2017 | E&E Greenwire
A proposed rule in Florida that would have required the media to be alerted of a spill or pollution release within 24 hours of the incident has been deemed a overreach of the Florida Department of Environmental Protection's legislative authority, according to a state judge.
DEP proposed the "Public Notice of Pollution" rule after a 200-million-gallon spill last year at a Florida fertilizer plant threatened drinking water. The public did not learn about the spill until almost three weeks after it occurred, prompting Gov. Rick Scott (R) to order the agency to implement an emergency rule (Greenwire, Sept. 30, 2016).
After Hurricane Hermine, a similar situation arose when 1.6 million gallons of sewage spilled in the Sunshine State. Although DEP was made aware of the spill, potentially affected residents were not.
On Friday, Administrative Law Judge Bram Canter said the groups opposing the rule — including the Associated Industries of Florida, Florida Farm Bureau Federation, Florida Trucking Association and National Federation of Independent Business — had standing to challenge the rule. He also said DEP has limited authority to promulgate rules.
Scott will review the judge's order and determine his office's next steps, according to Lewis.
"Protecting Florida's pristine environment is DEP's top priority and they will continue the public pollution notification process to ensure all Floridians and visitors are notified of pollution incidents," McKinley Lewis, deputy communications director for Scott, said in a statement. "Gov. Scott has been clear that the current law is outdated and needs to be changed."
Scott will "fight for legislation that ensures Florida families and visitors are notified within 24-hours of a pollution incident," he said.
http://www.eenews.net/greenwire/2017/01/03/stories/1060047735
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Vt. Utility Finds Russian Malware
Jan 3, 2017 | E&E Energywire
A Vermont utility has detected code associated with a Russian hacking operation known as Grizzly Steppe, according to U.S. officials.
The Burlington Electric Department said the code was detected in a laptop that was not connected to the utility's grid, and that it immediately isolated the hardware and contacted federal authorities.
Still, the incident came at a time of heightened fears of Russian hacking operations and days after the United States imposed sanctions on Russia.
"This is beyond hackers having electronic joy rides — this is now about trying to access utilities to potentially manipulate the grid and shut it down in the middle of winter," Vermont Sen. Patrick Leahy (D), who was briefed on attempts to get into the grid by Vermont State Police, said in a statement. "That is a direct threat to Vermont and we do not take it lightly."
U.S. officials were puzzled by the intrusion.
"The question remains: Are they in other systems and what was the intent?" a U.S. official said.
http://www.eenews.net/energywire/2017/01/03/stories/1060047720
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Trump EPA Nominee Scott Pruitt Would Trash Air and Water Safeguards
Jan 3, 2017 | Huffington Post
By Elliott Negin
Nominating Oklahoma Attorney General Scott Pruitt to run the Environmental Protection Agency gives lie to Donald Trump’s claim that he is serious about protecting the public from pollution. While the president-elect has waffled on climate change, he has been unequivocal about toxics.
“Clean air is vitally important,” Trump declared during a November 22 interview with The New York Times. “Clean water,” he added, “crystal clean water is vitally important. Safety is vitally important.” And when he announced Pruitt’s nomination in early December, Trump vowed that the attorney general would “restore the EPA’s essential mission of keeping our air and water clean and safe.”
Putting aside the fact that the EPA has not forsaken that mission, Pruitt’s track record indicates that he would do the exact opposite. Under Pruitt, the acronym EPA would stand for Every Polluter’s Ally.
Since he took office as Oklahoma’s attorney general in 2010, Pruitt has repeatedly sued the EPA to block key safeguards limiting power plant pollution, most notably the Cross-State Air Pollution Rule, which limits sulfur dioxide and nitrogen oxides, and the Mercury and Air Toxics Standards (MATS), which curb mercury, arsenic, cyanide and other emissions.
Sulfur dioxide and nitrogen oxides are primary ingredients of soot and smog pollution, which cause a number of respiratory problems, including bronchitis and aggravated asthma, as well as cardiovascular disease and premature death. Mercury and other toxic pollutants covered by MATS have been linked to heart disease, neurological damage, birth defects, asthma attacks and premature death. Some 25 million Americans suffer from asthma, alone. That’s one out of every 12 people.
The potential benefits of the Cross-State Rule and MATS are considerable. Taken together, they are projected to prevent 18,000 to 46,000 premature deaths across the country and save $150 billion to $380 billion in health care costs annually. In Pruitt’s home state, the two regulations would avert as many as 720 premature deaths and save as much as $5.9 billion per year.
Pruitt also has sued the EPA to prevent the agency from implementing a rule that would reduce the amount of ground-level ozone, or smog, which the American Lung Association says is the most widespread pollutant nationwide and one of the most dangerous. Produced when sunlight heats nitrogen oxides, volatile organic compounds and carbon monoxide from power plants, industrial facilities and automobiles, ozone pollution has been linked to respiratory problems, cardiovascular disease and premature death. It is particularly harmful for the most vulnerable, including children, the elderly, and people already suffering from asthma or another respiratory disease.
No matter. In October 2015, Pruitt joined with four other states to challenge the new ozone rule in court, despite the fact that earlier that month, the Oklahoma Department of Environmental Quality said the state could meet the new EPA limits.
Pruitt also has targeted clean water safeguards. In July 2015, he sued the EPA over the Clean Water Rule, which the agency and the Army Corps of Engineers had just issued to clarify the scope of the Clean Water Act. The rule was in response to two Supreme Court decisions — in 2001 and in 2006 — that called into question whether the federal government had the authority to protect smaller streams, wetlands and other water bodies that flow into drinking water supplies. From a scientific perspective, it’s a no-brainer. As EPA Administrator Gina McCarthy explained in a statement: “For the lakes and rivers we love to be clean, the streams and wetlands that feed them have to be clean, too.”
Pruitt doesn’t see it that way. In a March 2015 column he co-wrote with Kentucky Sen. Rand Paul for The Hill, Pruitt called the Clean Water Rule “the greatest blow to private property rights the modern era has seen.” Pruitt and Rand maintain that states should be responsible for protecting the environment within their respective borders, not the federal government. Never mind that air and water pollution do not honor political boundaries and state legislatures are all too often dominated by corporate interests.
Besides Pruitt’s disdain for air and water safeguards, he is no fan of federal efforts to address climate change, which he falsely insists is an open scientific question. Pruitt, who has received generous contributions from fossil fuel interests, is not only party to a pending lawsuit against the EPA over its Clean Power Plan to curb electricity sector carbon emissions, he also attempted unsuccessfully to overturn the agency’s science-based “endangerment finding” that greenhouse gases threaten public health and welfare, a cornerstone of the EPA’s climate work.
Public health advocates are rightly horrified at the prospect of Pruitt running the EPA. The response from Ken Kimmell, president of the Union of Concerned Scientists, was typical.
“The EPA plays an absolutely vital role in enforcing long-standing policies that protect the health and safety of Americans, based on the best available science,” Kimmell said in a press statement. “Pruitt has a clear record of hostility to the EPA’s mission, and he is a completely inappropriate choice to lead it. ...It’s this simple: If senators take seriously their job of protecting the public, they must vote no on Pruitt.”
Elliott Negin is a senior writer at the Union of Concerned Scientists.
http://www.huffingtonpost.com/elliott-negin/trump-epa-nominee-scott-p_b_13932232.html
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Air: EPA Tightens Air Toxics Control Requirements for Pulp Mills
Jan 3, 2017 | Inside EPA
EPA is proposing to tighten some emissions control requirements for pulp mills, based on a review of the sector that found health risks “acceptable” but nonetheless concluded that deeper emissions cuts from the sector are achievable at reasonable cost due to advances in air pollution control technology.
In a proposed risk-and-technology review (RTR) rule published in the Dec. 30 Federal Register, EPA says it found no “residual” health risks remaining from its 2001 rule setting national emissions standards for hazardous air pollutants (NESHAP) for chemical recovery combustion sources at kraft, soda, sulfite, and stand-alone semichemical pulp mills.
However, the agency proposes tightening some requirements for limiting “opacity,” a measure of air emissions, based on technological advances made since the issuance of the original rule. For example, “EPA is proposing to reduce the opacity limit for existing recovery furnaces from 35-percent to 20-percent opacity,” the agency says in the proposal.
Under the Clean Air Act, EPA must conduct RTRs for industry sectors eight years after promulgating the first NESHAP, and must adjust the standards if it finds residual health risks, cost-effective advances in control technology, or both. The agency is taking comment on the pulp mills proposal through March 2.
EPA is under a judicial deadline of Oct. 1 to finalize the rule, imposed by the U.S. District Court for the Northern District of California to resolve a lawsuit brought by environmentalists over EPA’s failure to conduct the RTR on the air law’s eight-year schedule.
In the proposal, EPA is also eliminating regulatory exemptions for periods of startup, shutdown and malfunction (SSM), in line with agency policy and rulings against such exemptions by the U.S. Court of Appeals for the District of Columbia Circuit.
The agency says in addition to tightening opacity limits, it is requiring monitoring of the performance parameters of electrostatic precipitators (ESPs) for those facilities equipped with these control devices; clarifying monitoring requirements for combined ESP/wet scrubber controls; and providing alternative monitoring for “smelt dissolving tank” wet scrubbers.
Also, EPA is proposing to “to improve the compliance provisions . . . by proposing to require periodic air emissions performance testing once every 5 years.”
In response to the proposal, American Forest & Paper Association President and CEO Donna Harman said the proposal indicates that EPA believes the 2001 rule protects public health. “That’s a positive testament to our industry’s investments and commitment to air quality and sustainability. Pulp mills have invested over $1.5 billion in state of the art controls to reduce emissions, and these technologies remain the best available.”
She added, “We are continuing to review the proposed rule, but have concerns with changes to the opacity provisions for recovery furnaces that we will address in our comments to EPA.”
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