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The Insider

Senators’ Queries Highlight Scrutiny Of EPA's Agenda During Pandemic

Members of the Senate environment panel are questioning EPA Administrator Andrew Wheeler on new developments in the agency’s water program, including its rule limiting state permit reviews, air and climate rollbacks, and its handling of the COVID-19 pandemic.

Meanwhile, Republicans are stepping up their scrutiny on how the agency is administering the renewable fuel standard (RFS), including its handling of a controversial federal suit that the oil sector fears will lead to strict national limits on which small refineries can avoid the program’s biofuel blending mandate due to financial hardship.

Lawmakers on the Senate Environment & Public Works Committee (EPW) sent Wheeler a long list of written questions this week, following up on his May 20 testimony at an oversight hearing, including tough queries on a number of major water policies:

Environment Panel Senators Press Wheeler On High-Profile Water Issues
Members of the Senate Environment and Public Works Committee (EPW) are pressing EPA Administrator Andrew Wheeler to explain how the agency is addressing a number of high-profile Clean Water Act (CWA) and Safe Drinking Water Act (SDWA) issues, including groundwater, state water quality reviews, perchlorate and perfluorinated chemicals.

Both Republicans and Democrats on EPW asked about the agency’s approach to state water quality certification reviews under CWA section 401, although they stake out opposing positions. Sen. Bernie Sanders (I-VT), who caucuses with Democrats, charged that the rule “guts the Clean Water Act by restricting the ability of states and tribes to block federal energy projects, such as pipelines or industrial plants, which could pollute rivers and drinking water.”

However, Sen. Kevin Cramer (R-ND) writes that the rule is necessary to avoid state “abuses” of the 401 process that have limited or blocked new fossil-fuel infrastructure. “The 401 permit is restricted to water quality. States should stick to that test. . . . What is EPA doing to ensure these sorts of abuses do not happen in the future?” Cramer asks.

The newly-signed final CWA section 401 rule is less far-reaching than a proposed version that states and environmentalists opposed as unlawful, but still amounts to a significant new limit on state authority over federally-permitted projects:

EPA Narrows CWA 401 Rule But Still Places Major Limits On States’ Power
EPA in its recently signed rule aimed at speeding permitting of energy infrastructure projects modified some provisions from its proposal that were concerning to state regulators, but legal experts say the rule still contains significant limits on states’ ability to require water quality protections for federally permitted or licensed projects.

“The final rule still represents a cut back of states’ reach, but it is cut back less drastically than the proposal” in some areas, James McElfish of the Environmental Law Institute tells Inside EPA.

The agency characterizes the changes in its Clean Water Act (CWA) section 401 rule as increasing clarity and regulatory certainty, compared to the proposal, although one of the changes avoids having the agency stake out a position contrary to judicial precedent.

Nonetheless, the final rule retains limits on the scope of states’ review to point source discharges rather than broadly assessing impacts from the permitted activity that could affect water quality -- a position that some legal experts say is at odds with Supreme Court precedent and may be most vulnerable to legal challenge.

Other EPW members focused their questions on the pandemic, especially EPA’s controversial policy of “enforcement discretion” for industrial facilities facing difficulty with monitoring or reporting mandates during the crisis, as well as plans to reopen some agency offices:

Senate EPW Members Query EPA On COVID-19 Strategy, Reopening
Senate Environment & Public Works Committee (EPW) members are asking EPA a host of questions on its response to the COVID-19 pandemic, including details on its controversial office reopening plan, how the agency will factor virus risks and impacts into rules, and the pandemic’s impact on air monitoring networks.

The questions highlight lingering uncertainty about many aspects of EPA’s virus response and set a relatively short deadline of June 19 for Wheeler to send the committee his answers.

Moreover, they point to the continuing substantive and political impacts of COVID-19 on the agency and lawmakers, at a time when EPA has also encountered pushback to its reopening effort and had to slow restart of its Region 1 Boston and Region 6 Dallas offices after slower than hoped for progress in managing infections.

For instance, Ranking Member Tom Carper (D-DE) asks Wheeler to “please provide the data and ‘gating’ criteria used to make decisions related to reopening the EPA regional offices around the country, along with copies of all instructions provided to the Regions regarding reopening.”

EPA recently announced plans to begin reopening 6 of 10 regional offices around the country but the agency’s biggest staffing union -- the American Federation of Government Employees -- has called for that process to pause due to concerns about potential health risks to employees.

Still others targeted EPA’s air and climate programs, questioning Wheeler on an array of high-profile rollbacks:

Senate Democrats Press EPA Over Concerns With Air, Climate Rollbacks
Senate Democrats are seeking answers from EPA Administrator Andrew Wheeler to questions and concerns about a host of EPA regulatory rollbacks in air and climate policy, including particulate matter (PM) standards, interstate pollution transport, vehicle greenhouse gas standards, wood heaters standards and other rules.

Carper seeks answers on why EPA believes a “sell-through” period is now warranted for wood stoves that fail to meet current EPA particulate-matter (PM) emissions standards when only months ago the agency decided otherwise, and its proposal to keep national ambient air quality standards for PM unchanged, despite scientific evidence suggesting tightening the standards would benefit public health.

And Sen. Cory Booker (D-NJ) presses Wheeler on the disproportionate health impact of PM pollution on minority communities. “Given that EPA is required by Executive Order to consider environmental justice and the impact of its rulemakings on minority communities, please describe what weight you gave to the harm caused by particulate matter on African American communities in your decision to not create a more protective standard?”

Meanwhile, Republicans focused many of their questions on the RFS, underscoring the long-standing disagreements within the party over whether the program unduly burdens the oil sector:

Senators’ Queries To EPA Highlight Lingering Division On Future Of RFS
Several senators on the Environment & Public Works Committee (EPW) in recent questions to EPA Administrator Andrew Wheeler are highlighting lingering divisions among lawmakers over the future of the renewable fuel standard (RFS), including a deep divide between GOP senators over key aspects of biofuels regulations.

In particular, EPW Chairman John Barrasso (R-WY) questioned Wheeler on EPA’s handling of the lawsuit Renewable Fuels Association (RFA) v. EPA, where the U.S. Court of Appeals for the 10th Circuit January scrapped RFS compliance waivers for three refiners and set a precedent that if applied nationally could limit any small refinery that is not already receiving a “hardship” waiver from qualifying for a new one.

Barrasso writes that EPA’s decision not to challenge the petitioners’ standing to bring their case is “very troubling,” while another RFS skeptic, Sen. Shelley Moore Capito (R-WV), asks Wheeler to provide updates for pending applications for waste-to-biomass energy companies to win “pathways” for RFS credit.

On the other side of the debate, Sen. Joni Ernst (R-IA), a major biofuels supporter, focuses on EPA’s efforts to make higher ethanol blends available, including 15 percent ethanol fuel. “When can we expect the agency to move forward with expediting the sale of E15 through existing infrastructure?” she asks.