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The Week Ahead

Posted: September 8, 2014

Congress Debates EPA Climate, Water Policies; Court Hears Water Transfer Case

Congress is returning from the August recess and holding a series of hearings examining high-profile environmental policies, including EPA's greenhouse gas (GHG) rules for power plants, the agency's controversial rulemaking to define the scope of Clean Water Act (CWA) jurisdiction, Mid-Atlantic states' plan to improve water quality in the Chesapeake Bay, and environmental permitting of transportation projects. Meanwhile, the agency is set to defend its rule exempting most water transfers from CWA permits in a closely watched appellate suit.

In Congress

As the two-week September session of Congress begins, lawmakers are teeing up discussions of many of EPA's most prominent policies, covering water, climate and energy regulations.

The Senate Environment and Public Works Committee (EPW) is holding a field hearing Sept. 8 titled “Examining the Strategy for Achieving the Goals of the New Voluntary Chesapeake Bay Watershed Agreement.” According to the agenda representatives from state and local governments, as well as EPA, will testify on the revised interstate agreement aimed at protecting water quality in the bay.

The hearing comes as industry is fighting to overturn EPA's binding total maximum daily load cleanup plan for the bay, arguing that the Supreme Court's recent decision that exceeded its Clean Air Act discretion in how it imposed GHG permitting bolsters their claims that EPA similarly lacks CWA discretion for its approach to the plan.

EPW has also scheduled a hearing to consider nominations to the Nuclear Regulatory Commission for Sept. 9.

The House Rules Committee is set to consider another controversial EPA policy Sept. 8, when it will craft a rule for floor debate on H.R. 5078, a bill that would block EPA from finalizing its controversial CWA jurisdiction regulation. House Republicans have consistently criticized the proposed rule, most recently touting a set of EPA-prepared maps as evidence that the agency is seeking to greatly expand its regulatory authority under the water law.

The House's transportation & infrastructure committee is also planning a look at EPA's water policy Sept. 8, with a hearing on “Surface Transportation Infrastructure Projects: Case Studies of the Federal Environmental Review and Permitting Process.” The GOP has long argued that stringent environmental review requirements under the National Environmental Policy Act (NEPA) and the Endangered Species Act, are delaying needed transportation and other infrastructure projects. Most recently, legislators sought to include NEPA “streamlining” provisions in this year's bill authorizing Army Corps of Engineers water projects, but the language was substantially weakened in the consensus bill.

The House Science Committee's panels on oversight and energy are planning a joint hearing Sept. 9, titled “Bakken Petroleum: The Substance of Energy Independence,” which is likely to touch on the ongoing question of how EPA should regulate volatile organic compounds emissions from oil and gas production, as environmentalists have argued that "regulatory gaps" in the agency's 2012 rules fail to address emissions from drilling in "liquids rich" plays like the Bakken Shale in North Dakota and Montana.

Climate Change

The House Energy & Commerce Committee's subcommittee on energy and power will discuss EPA's controversial GHG rules for power plants in a Sept. 9 hearing,“State Perspectives: Questions Concerning EPA’s Proposed Clean Power Plan.” Testimony at the hearing will focus on how the agency's proposed power plant rules restricts states' discretion to regulate their power sectors. States have been divided on whether they will be able to comply with the rules without major expense.

California is hosting its own discussions on the agency's proposed existing source performance standards (ESPS), with the University of California's Schwarzenegger Institute holding a Sept. 8 symposium on the rule while the California Air Resources Board (CARB) has scheduled a public forum for Sept. 9.

CARB recently released a “discussion paper” that calls on EPA to “remain flexible” when it crafts the final rule but also urges a measure that will include robust reporting mechanisms and backstops if states fail to achieve GHG reductions.

Water Transfers

In a pending appellate court legal battle, EPA and states are set to file the first substantive briefs Sept. 11 in their appeal seeking to preserve the agency's 2008 rule that exempts most transfers of water from CWA permit requirements, after a federal district judge vacated the rule citing a failure to address water quality concerns from the transfers.

Environmentalists have long sought to eliminate the rule, arguing that it allows the unrestricted transfer of pollutants and foreign substances between water bodies, but many states, especially in the west, have defended it because they frequently use water transfers for irrigation and to address water shortages caused by drought.

Selenium Litigation

EPA and Kentucky regulators are set to file their responses to environmentalists' closely watched suit seeking to block approval of the state's precedent-setting fish-tissue based water quality standard for selenium, after a federal district court allowed the plaintiffs to amend their CWA complaint to include Endangered Species Act claims.

EPA's approval of the state-crafted selenium rules were seen as a landmark victory for coal mining and power industry groups, as well as many states, that have sought fish-tissue based measures, on the basis that they allow for greater consideration of site-specific conditions than water-column values. But environmentalists say fish-tissue values are difficult to implement in permits and other regulatory requirements because the tissue values require collection and analysis of fish before compliance can be determined.

Children's Health

EPA’s Children’s Health Protection Advisory Panel (CHPAC) will meet Sept. 9-10 in Washington, DC, to discuss a number of EPA activities related to children’s environmental health issues. The advisors will receive briefings related to EPA’s pending lead National Ambient Air Quality Standard review and the agency’s new environmental justice screening tool, EPA and the Food and Drug Administration’s draft fish consumption advisory for pregnant women and other issues.

The advisors will also receive a briefing from the director of the National Institute of Child Health and Human Development (NICHD), which has been leading the effort to create the National Children’s Study, intended to be a longitudinal, observational study of 100,000 American children’s health and development, and the environmental factors that impact that. The study, however, has come under criticism from CHPAC, EPA and others for its mounting costs and study design. NIH leadership placed it on hold in June after the National Academies released a critical report on its study design. EPA staff and CHPAC had also been critical of some of the changes in the study design, which they feared would make the study less useful to environmental health researchers.

CHPAC will also discuss several letters of advice it is preparing for the agency including a list of priority activities the group is preparing at the request of Administrator Gina McCarthy. She urged the group to send her a list of “three or four core things” she should address while in office when she met the advisors at their last meeting in April.

Toxics

EPA is hosting a workshop Sept. 10-11 on “Ecotoxicity Testing of Difficult-to-Test Substances in the Aquatic Environment: Evaluation and Testing of Poorly Water Soluble Substances,” where experts will discuss available options for evaluating the toxicity of substances that are difficult to test in aquatic environments because they dissolve poorly or not at all in water.

Among other applications, new methods for testing such substances could provide an alternative to the existing high throughput screening assays that are seen as the backbone of future toxicity testing, but which as currently practiced cannot be used to test substances that are volatile -- like benzene -- or are insoluble in water.

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