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The Week Ahead

Supreme Court To Hear Superfund Test Case; D.C. Circuit Weighs Suits Over EPA Air Rules

Federal courts are holding oral arguments in major environmental cases this week, including a Supreme Court case testing whether landowners can pursue state damages claims over a Superfund site. The U.S. Court of Appeals for the District of Columbia Circuit will hear argument in two closely watched Clean Air Act suits where environmentalists are seeking stricter EPA air rules.


The Supreme Court will hear argument Dec. 3 in Atlantic Richfield Company (ARCO) v. Gregory Christian, et al., an appeal of a decision by the Montana Supreme Court that allowed property owners to move ahead with their suit seeking common-law damages for contamination at an ARCO site that is now under a Superfund cleanup plan. The company says the Superfund law’s bar on judicial review of ongoing cleanup remedies should extend to state damages claims, but a wide array of states and property rights groups are urging the high court to uphold the state decision and let the suit continue.

Air Litigation

D.C. Circuit judges will hear argument this week in two closely watched air suits; one over air toxics limits for incinerators, and the other testing whether EPA must use updates to its sector-specific air toxics standards to add restrictions on “missing” air toxics not covered by the original versions.

In Sierra Club v. Andrew Wheeler set for argument on Dec. 3, the environmental group is arguing that the Clean Air Act requires EPA to issue federal implementation plans imposing its air toxics policies for incinerators in states that have failed to issue state implementation plans for compliance with the agency’s emissions “guidelines” for solid waste incinerators. The case is an appeal of a district judge’s decision holding that the air law imposes no such duty.

The second case, Louisiana Environmental Action Network (LEAN), et al., v. EPA, et al., will go to argument Dec. 4 and deals with the national emissions standards for hazardous air pollutants (NESHAP) rule that applies to pulp mills. LEAN and its allies say that when EPA conducted a mandatory risk and technology review (RTR) of the NESHAP in 2017, to identify and address any “residual” risks or new cost-effective control technologies since the standards were issued, it should have also added new limits for toxic substances that were excluded from the original rule. But EPA says there is no such obligation in the air law, despite the Obama administration commonly using RTRs to add new pollutants to the underlying rule.

Drinking Water

The National Drinking Water Advisory Council will meet in Washington, D.C., from Dec. 4-7. It is the first time the panel has met since EPA proposed its long-awaited update to the drinking water lead and copper rule, and the meeting is divided into two sessions. The first runs Dec. 4-5 and will focus on the LCR and the still-in-development (/node/221632) rule to limit perchlorate in drinking water. The second session on Dec. 6-7 will feature a broader overview of EPA’s drinking water agenda, “including an introduction of the benefits of improving public drinking water system's capacity through partnerships.”

NAAQS Updates

EPA’s Clean Air Scientific Advisory Committee (CASAC) will meet Dec. 3-6 to peer-review two key documents for updates to national ambient air quality standards (NAAQS): the agency’s integrated science assessment (ISA) examining research into ozone and staff’s draft policy assessment calling for a stricter particulate matter (PM) NAAQS.

Major industry groups have pushed back against the PM policy assessment, while CASAC itself is deeply divided on how to approach the ozone standard, especially whether to back EPA’s “weight of evidence” method for assessing ozone’s health impacts.

CASAC is meeting just hours after the Dec. 2 public comment deadline on the draft ozone ISA.


EPA will host a Dec. 5 webinar on a new research initiative into the effects of per- and poly-fluoroalkyl substances (PFAS) on rural communities, including water quality and the availability of fresh water in those regions.

Risk Assessments

The EPA Integrated Risk Information System (IRIS) program will host an online public science meeting on Dec. 5 to take public comment on its plan for assessing risks from inorganic mercury salts. IRIS launched that review Oct. 8 at the request of the agency’s Superfund office, which could potentially use the eventual results to make risk determinations on short- and long-term remedial cleanup actions at sites contaminated with the substances.

ALEC Summit

The free-market American Legislative Exchange Council (ALEC) will host its 2019 States & Nation Policy Summit Dec. 4-6 in Scottsdale, AZ. ALEC produces model legislation that often becomes law in GOP-led states, meaning the policy summit could set the tone for state-level environmental lawmaking in 2020, although the group has generally opposed even market-based environmental and climate programs.


The Society of Chemical Manufacturers & Affiliates (SOCMA) will hold its SOCMA Week conference Dec. 4-6 in New Orleans. Environmental policy issues on the agenda include EPA’s implementation of the reformed Toxic Substances Control Act (TSCA), and potential reauthorization or reform of the Chemical Facility Anti-Terrorism Standards Program (CFATS). The group has also been a major supporter of EPA’s just-finalized rollback of Obama-era updates to the Risk Management Plan facility safety rule.


EPA’s Environmental Financial Advisory Board (EFAB) will hold a Dec. 4 teleconference for its Stormwater Infrastructure Finance Taskforce to continue crafting a report on the availability of public and private sources of funding for the construction, rehabilitation, and operation and maintenance of stormwater infrastructure.

Air Toxics

Comments are due Dec. 6 on EPA’s proposed RTR for the ethylene production sector that would add more more-stringent restrictions on storage tanks’ emissions of hazardous air pollutants -- one of the few Trump EPA RTRs where the agency is tightening existing standards instead of finding no residual risks or new affordable control technologies.

Freight Transportation

The House Transportation & Infrastructure Committee’s panels on highways and transit, and railroads, pipelines and hazardous materials will hold a joint Dec. 5 hearing on the “economic, environmental and social impacts” of freight transportation.


EPA’s Scientific Advisory Committee on Chemicals (SACC) will convene to peer-review two draft TSCA risk assessments this week. From Dec. 3-4, it will review a draft evaluation of methylene chloride (MC) that could produce a new rule limiting or barring use of the chemical that would go beyond the recently-enacted ban on consumer uses of MC as a paint-stripper, which environmental groups and others have charged is inadequate.

Then. On Dec. 5-6, SACC will review the draft assessment of N-methylpyrrolidone (NMP), a widely used solvent that the agency found poses unreasonable risk to workers, consumers and bystanders in some uses -- a finding that would warrant risk management action if finalized.


The University of California at Los Angeles’ Luskin Center for Innovation plans to unveil a new study on EPA’s mercury and air toxics standards (MATS) for power plants on Dec. 4, as the agency appears set to finalize by the end of the year a repeal of the finding that the Obama-era rule was “necessary and appropriate” under the Clean Air Act.


The Strategic Environmental Research and Development Program (SERDP), a joint venture between EPA, the Department of Defense and the Department of Energy, will host a Dec. 3-5 symposium in Washington, D.C., on the agencies’ joint research and development work.

2020 Election

Politico and the Walton Family Foundation will host a Dec. 4 panel discussion in Washington, D.C., on how environmental issues are shaping the 2020 presidential race.

Climate Resiliency

The National Academy of Sciences will host a Dec. 3 seminar in Washington, D.C., on “climate-resilient smart cities” focused on “human-technology integration."

The Energy & Environment Study Institute will host a Dec. 4 briefing in Washington, D.C., on resilience measures in the West Coast states.

Disaster Recovery

EPA will host a Dec. 3 webinar on the use of satellite imaging to track recovery from disasters like major hurricanes.

AFO Emissions

Comments are due Dec. 2 on EPA’s “call for information” on air emissions from animal feeding operations (AFOs), which follows moves by the agency and Congress that largely eliminated air toxics reporting mandates for the facilities even as some environmentalists are still pushing for reporting by AFOs and ultimately regulation of the sector.

Sulfur Emissions

The Coast Guard will host a Dec. 5 public meeting to take comment on its implementation of the requirement in MARPOL Annex VI, the global treaty that governs environmental issues in international shipping, to limit sulfur content in fuels to 0.5 percent.


EPA will host a Dec. 4 webinar to highlight the work of firms that have won performance awards from the SmartWay emissions-reduction program for the shipping sector.