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The Insider

States Ramp Up Efforts To Block EPA Rollbacks, Exceed Federal Mandates

Several states are ramping up efforts to either block the impact of EPA regulatory rollbacks or to craft new state-level regulations that will impose pollution control requirements in excess of federal mandates, hinting at the growing role states are playing in environmental policy.

The Trump administration has repeatedly touted its focus on “cooperative federalism” through which it wants to give states more power on policy decisionmaking. But Democratic states critical of EPA's deregulatory agenda are now using that enhanced power to pursue legislative and regulatory measures that could hinder full implementation of the rollbacks.

And the ongoing government shutdown could further elevate states' role in environmental policy, because it has halted all non-essential EPA work. As a result, rulemakings to undo Obama-era policies are on hold, though states can still push ahead with countermeasures.

For example, California officials are looking to revise state-level regulatory definitions for waterbodies that might blunt the impact of efforts by EPA and the Army Corps of Engineers to implement a narrower Clean Water Act (CWA) jurisdiction standard:

California Moves To Limit Impact Of Trump's Bid To Narrow CWA's Reach
The California water board has released a final draft definition for “wetlands” and other state waters subject to regulation, a measure that observers say will effectively block the Trump administration's proposed rule to narrow the scope of the federal Clean Water Act (CWA) in California.

The Obama EPA and Corps in 2015 finalized their CWA jurisdiction rule, also known as the Waters of the United States rule, that critics say vastly expanded the law's scope beyond Congress' intent. The Trump administration is pursuing a two-step approach to undoing the rule, first by repealing it and then by replacing it with a much more limited jurisdiction standard.

As a side note, President Donald Trump on Jan. 14 told the American Farm Bureau Federation's annual convention that he is proud of the plan to undo the “ridiculous” Obama-era rule, although he said that “Waters of the United States” was a beautiful name for a policy.

Trump touts rollback of 'ridiculous' CWA jurisdiction rule
President Donald Trump is touting EPA and the Army Corps of Engineers' planned rollback of the Obama-era Waters of the United States (WOTUS) rule that had sought to broadly define Clean Water Act (CWA) jurisdiction, saying it had a “beautiful” title but was otherwise a “disaster” for farmers and developers.

But California might be ready to deal him a setback on the effort by using the revised water definitions to effectively preserve parts of the 2015 rule within the state.

California's Water Resources Control Board (WRCB) Jan. 3 released the final draft of the “State Wetland Definition and Procedures for Discharges of Dredged or Fill Material to Waters of the State,” and is holding a series of public meetings on the proposal. WRCB is tentatively scheduled to consider adopting the plan on Feb. 5, and they would become effective six months later.

WRCB is updating the definition and related rules affecting dredge-and-fill projects in part because of uncertainty over federal regulations governing the scope of the CWA. The board's strict new wetlands permitting program will effectively block the Trump administration's plan for a narrower CWA jurisdiction standard in California because the program would use a broader definition of “wetland” than the federal rule, experts say.

Meanwhile, the state continues to spar with the Trump EPA and Department of Transportation over the administration's plan to revise Obama-era greenhouse gas and fuel economy standards for passenger vehicles. Prospects for a quick deal to resolve the fight appear to be diminishing, and it might require litigation to revive them:

Any Vehicle GHG 'Deal' Seen As Unlikely Until After Court Battle Begins
Observers are increasingly expecting that any deal on changes to vehicle greenhouse gas and fuel economy standards is unlikely before the Trump administration finalizes an aggressive rollback of the rules, suggesting debate over the issue will only get more acrimonious -- not less -- in the coming months.

Highlighting the contentious plan, Senate Environment & Public Works Committee ranking member Tom Carper (D-DE) says the administration appears set on only mandating a small rise in the GHG and fuel economy standards at the end of the rulemaking process. He floated the figure at Acting EPA Administrator Andrew Wheeler's Jan. 16 EPW confirmation hearing to be agency chief full-time, saying the number was based on what he has heard.

“This will only lead to extensive litigation and uncertainty for automakers,” Carper told Wheeler. “That's not a win-win outcome. It's a lose-lose.”

Carper Says EPA To Finalize 0.5 Percent Hike In Vehicle GHG Standards
EPA and the Transportation Department are planning to finalize rules requiring a 0.5 percent annual improvement in vehicle fuel economy and reducing greenhouse gas emissions, according to Sen. Tom Carper (D-DE), the top Democrat on the environment committee, a move only marginally tougher than the agencies' plan to fully freeze Obama-era rules through 2026.

In Virginia, the state's Democratic governor is backing legislation that would impose stricter control requirements on coal ash disposal facilities beyond those established in EPA's Resource Conservation & Recovery Act rules for handling the waste. The Trump administration is also aiming to revise those rules, so Virginia's bid could act as a counter to that effort.

The proposed bill, H.B. 2105, would effectively ban power plants in the state from using “closure in place,” a method of shutting down an ash disposal site where the stored waste is dried and then sealed off. Instead, it would require ash to be removed from older facilities and either sold for reuse or deposited in modern facilities that meet EPA's RCRA standards for leak prevention. That would back environmentalists' long-standing arguments that closure in place is not protective for leaking sites because of the potential for ongoing groundwater contamination. Such groups have broadly pressed power companies to remove ash from their closed facilities in nearly all cases.

Virginia Bid For Stricter Ash Rules May Be Model To Exceed EPA Mandates
Virginia Gov. Ralph Northam (D) is pushing legislation to tighten the state's requirements for power plants that are closing down coal ash disposal sites in order to comply with EPA's rules for the waste, serving as a potential model for other states where environmentalists are calling for more-stringent disposal mandates than the federal rules.

Environmentalists have long sought to block closure-in-place plans at ash sites preparing to shut down in compliance with the RCRA rule, but those efforts have generally relied on litigation and public pressure rather than legislation. The RCRA rule does not prohibit closure in place, and the Trump administration is now weighing steps to roll back some of the rule's mandates.

Other major environmental issues highlight areas where states are not pushing back on an EPA rollback but are weighing steps to target contaminants the agency is yet to address.

Water contamination from per- and polyfluoroalkyl substances (PFAS) is gaining increasing attention from several states. While exposure to PFAS can cause cancer and other harms, EPA has been slow to regulate the substances, and has warned that even if it decides to set drinking water maximum contaminant levels for the substances, they would take years to complete.

In lieu of federal action, environmentalists are pushing states to take the lead -- including a petition in Michigan that asks the state to set standards for PFAS:

Environmentalists Expand Push For State PFAS Technology Standards
Environmentalists are petitioning officials in Michigan -- a state with extensive contamination from perfluorinated compounds -- to adopt technology-based drinking water standards for the entire class of chemicals, expanding on a campaign that has so-far focused on Northeast states.

Erik Olson, a senior attorney at the Natural Resources Defense Council, says the group is targeting states such as Michigan because it has serious PFAS contamination issues, and environmentalists believe they can move the state forward on the matter.