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The Week Ahead

Wheeler To Address ECOS Meeting; House Democrats Continue Climate Hearings

Administrator Andrew Wheeler is one of a group of top EPA officials set to address the Environmental Council of the States’ (ECOS) spring meeting this week. House Democrats continue their hearings on climate change. And judges on the U.S. Court of Appeals for the District of Columbia Circuit will hear oral argument on April 9 in environmentalists’ challenge to the rule setting out a definition of “solid waste” under the Resource Conservation & Recovery Act.

ECOS Meeting

State environment commissioners will be in Arlington, VA, this week for ECOS’ spring meeting that runs April 8-10. The agenda includes discussions on the balance of power between state and federal regulators, permit certainty and the ongoing effort to address contamination from per- and polyfluoroalkyl substances (PFAS). EPA speakers slated to appear include Wheeler; Henry Darwin, the agency’s acting deputy administrator and chief of operations; and Associate Administrator for Enforcement & Compliance Assurance Susan Bodine.

‘Solid Waste’ Definition

A three-judge panel in the D.C. Circuit will hear argument April 9 in California Communities Against Toxics, et al. v. EPA, where environmentalists are asking the court to scrap a key element of the agency’s current definition of solid waste (DSW) rule -- a policy that was reinstated after an earlier court win for many of the same groups in their challenge to a 2015 update to the DSW.

Specifically, they are targeting the so-called transfer-based exclusion (TBE) in the rule, which requires generators of hazardous secondary material to make "reasonable efforts" to ensure recyclers meet the requirements of legitimate recycling.

The challengers say hazardous secondary material sent off-site for recycling is being discarded and is therefore waste. They argue that by paying to get rid of "unwanted" secondary hazardous materials, generators are discarding them, therefore meeting the definition of hazardous waste.

Climate Change

Congress has scheduled four hearings on climate issues this week. In the House, the Oversight Committee will meet April 9 on “The Need for Leadership to Combat Climate Change and Protect National Security,” while the Homeland Security Committee’s panel on emergency preparedness will hold a separate hearing on the same day, titled “Assessing the Homeland Security Impacts of a Changing Climate.”

Also on April 9, the House Foreign Affairs Committee will mark up a series of bills including H.R. 9, which would block the Trump administration’s plan to exit the Paris climate agreement next year. The Energy & Commerce Committee held its own markup of the bill on April 4.

On April 11, the Senate Energy & Natural Resources Committee will hold its own hearing on “Opportunities for Energy Innovation and Other Potential Solutions to Help Address Global Climate Change.” The hearing is a follow-up to one held March 5, and marks the continuation of a rare effort in the Senate to craft a bipartisan climate agenda.

April 11 is also the date of a Citizens for Responsible Energy Solutions forum on Republicans’ climate policies, focused on “innovative, technology neutral, and market-based approaches to reducing emissions."

EPW Markup

The Senate Environment & Public Works Committee (EPW) has scheduled an April 10 markup for four pending bills, including reauthorization of the Diesel Emissions Reduction Act and the latest iteration of long-pending bipartisan legislation known as the “USE IT Act” that would bolster carbon capture and sequestration at power plants.

Pipelines

President Donald Trump is expected to sign a new set of directives on April 10 that will curtail states' Clean Water Act (CWA) section 401 authority to limit or block pipeline permitting due to the projects’ effects on water quality. Republicans in Congress have long argued that Democratic-led states abuse their CWA powers to block fossil-fuel infrastructure, but states -- even those with GOP leadership -- have pushed back against any effort to narrow their section 401 authority.

CWA Jurisdiction

The D.C. Bar Association will host an April 10 panel discussion on the future of CWA jurisdiction, including EPA’s Principal Deputy General Counsel David Fotouhi as well as environmentalist and industry lawyers, ahead of the April 15 deadline for public comments on the Trump administration’s proposal that would greatly narrow the universe of waters subject to the law.

NSR Permits

A multi-day trial on EPA and environmentalists’ closely watched suit over utility Ameren Missouri’s violations of Clean Air Act new source review (NSR) permit terms is slated to begin on April 8 and run as late as the end of the week. Argument will focus on the penalties Ameren should face following prior court rulings that it violated the air law by unlawfully evading prevention of significant deterioration permit requirements. Most recently, Judge Rodney Sippel of the U.S. District Court for the Eastern District of Missouri Feb. 27 rejected the firm’s argument that courts lack authority to impose injunctive penalties to remedy past harms under the NSR program.

Water Infrastructure

The Association of Metropolitan Water Agencies’ (AMWA) annual water policy conference runs April 7-10 in Washington, D.C. Among the featured speakers are EPA water chief David Ross, and toxics chief Alexandra Dunn; White House Council on Environmental Quality Chairman Mary Neumayr; and a slate of lawmakers who sit on the House and Senate infrastructure committees, including Reps. Paul Tonko (D-NY) and Bob Gibbs (R-OH), and Sens. Tom Carper (D-DE), Tammy Duckworth (D-IL), Sheldon Whitehouse (D-RI) and Ben Cardin (D-MD).

EPA officials will present at the Design-Build For Water/Wastewater Conference on April 10-12 in Cincinnati, OH.

The Northeast-Midwest Institute is holding an April 11 briefing on Capitol Hill aimed at congressional staff where speakers will highlight federal laws and policies that EPA and lawmakers could use to address water infrastructure concerns, including funding for new construction and cleaning up contamination from lead and per- and polyfluoroalkyl substances (PFAS).

OTC Meeting

The Ozone Transport Commission (OTC), composed of 12 Mid-Atlantic and Northeastern states, will hold an online stakeholder meeting April 11 together with the Mid-Atlantic/Northeast Visibility Union (MANE-VU). OTC is in the midst of pushing back against the Trump EPA’s ozone agenda, including the finding that its current Cross-State Air Pollution Rule (CSAPR) power plant emissions trading rule is sufficient to help downwind states satisfy the national ambient air standard for ozone.

PFAS

Sens. Bob Casey (D-PA) and Tom Carper (D-DE) -- ranking member on the Senate Environment & Public Works Committee -- will meet with environmentalists, water utilities and municipal officials in Bucks County, PA, on April 8 to discuss planned legislation aimed at controlling PFAS in drinking water.

Coal Council Meeting

White House council on Environmental Quality Chairman Mary Neumayr is one of the speakers slated to address the National Coal Council’s spring meeting April 11-12 in Washington, D.C. Also on the agenda are a host of top Energy Department officials.

EPA Deference

The D.C. Bar will host an April 9 panel discussion on the “intersection” between the judicial doctrines of Chevron deference, which gives weight to agencies’ interpretations of ambiguous statutory text, and “non-delegation,” which bars Congress from enacting laws so vague they give regulators “unbounded” discretion on how to apply them. Opponents of broad agency deference have recently sought to revive the little-used non-delegation doctrine as a way to effectively limit regulators’ discretion by barring broad readings of ambiguous laws as unconstitutional, while conservatives on the Supreme Court have signaled they favor a narrow application of Chevron.

Mountaintop Mining

The House Natural Resources Committee’s panel on energy and mineral resources has scheduled an April 9 hearing on environmental and human-health impacts from mountaintop removal mining, which will also serve as a legislative hearing for a bill regulating the practice titled the “Appalachian Communities Health Emergency Act of 2019.”

EAB Argument

EPA’s Environmental Appeals Board (EAB) will hear oral argument April 9 in In re: Evoqua Water Technologies, where a carbon-regeneration facility is mounting a broad challenge to its EPA-issued Resource Conservation & Recovery Act permit, including arguments over whether the agency can make tribal governments co-permittees for privately owned facilities located on tribe-owned land.

Defense Cleanups

The House Armed Services Committee’s panel on strategic forces will hold an April 9 hearing on the Defense Department’s priorities for contaminated-site cleanups and other issues in fiscal year 2020.

BOSC Meeting

EPA’s Board of Scientific Counselors, which offers input to the agency on its research agenda, will hold a meeting of its Chemical Safety for Sustainability Subcommittee April 10-12 in Research Triangle Park, NC.

Air Toxics

EPA is taking comment through April 10 on a request from Shell Oil for permission to operate a multi-point ground flare at its Martinez, CA, refinery. To approve Shell’s application the agency must certify that the flare will achieve hazardous air pollutant reductions “at least equivalent to” those required by the sector’s air toxics limits, in a potential test for how the Trump EPA applies that standard.

Compensatory Mitigation

The Environmental Law Institute will host an April 11 webinar on stream compensatory mitigation policies focused on calculating mitigation credits and debits.

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