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The Week Ahead

Editor's Note: The Week Ahead will not publish Labor Day, Sept. 1. The next Week Ahead will publish Sept. 8.

Posted: August 25, 2014

Groups Detail Challenges To Major EPA Rules, Administration Weighs Carbon 'Cost' Case

Industry groups and others are poised this week to detail their legal challenges to a broad range of major EPA energy, toxics and water regulations, including a suit over a waste law waiver for carbon sequestration and a long-running dispute over air toxics standards for boilers. The administration meanwhile is expected to tell a federal district court about the “high-level” policy implications of a recent ruling requiring the use of carbon “cost” values in environmental reviews.

Power Plant Rules

Industry briefs are due Aug. 28 in litigation pending in the U.S. Court of Appeals for the District of Columbia Circuit over EPA's final Resource Conservation & Recovery Act (RCRA) waiver for exempting carbon capture and sequestration (CCS) activities from strict hazardous waste rules under the law.

The suit, Carbon Sequestration Council, et al v. EPA, et al. contests the agency's Dec. 17 rule, which contains language indicating that carbon dioxide (CO2) for the purposes of CCS injection is a "solid waste" under RCRA, raising industry concerns over liability under the waste law, and the potential for hampering enhanced oil recovery operations that inject carbon dioxide.

EPA's rules for the power sector are also likely to be the subject of a Clean Water Act (CWA) suit this week, as Aug. 29 marks the first day stakeholders can sue over the agency's recently finalized rule for cooling water intakes, after the state of New York and the energy industry signaled possible challenges to the regulation in recent comments.

Carbon Costs

The Obama administration has until Aug. 27 to respond to a court's request for information regarding the "high level" policy implications of a first-time ruling criticizing the government's failure to use a social cost of carbon (SCC) value in assessing greenhouse gas (GHG) impacts from coal mining leases.

Although the U.S. District Court for the District of Colorado's June 27 ruling requiring the SCC review is not binding anywhere except that district, advocates are already citing it in calls for the Department of Interior to reverse course on its plan to not consider the SCC in reviewing a New Mexico coal mine and utility project. Sources also say environmentalists will cite the court's ruling in a pending lawsuit over GHG impacts of coal leasing in Wyoming.

Boiler MACT

Industry groups are slated on Aug. 26 to file opening briefs in their lawsuit challenging EPA's maximum achievable control technology (MACT) air toxics standard for smaller “area” source boilers, part of a broader legal challenge to a package of agency combustion air rules.

Environmentalists and industry groups in filings in a related D.C. Circuit case earlier this month sparred over EPA's justifications for its MACT standard for larger "major" source boilers, with both attacking the agency's methodologies but industry arguing that the rule should be less stringent and advocates countering that EPA made it too weak.

The court is hearing the challenges to the area and major source boiler MACTs separately, and also hearing a third suit over an emissions rule for commercial and solid waste incineration units stricter than the boiler rule, which is part of the combustion air rule package.

Oil & Gas NSPS

Parties involved in D.C. Circuit litigation over EPA's 2012 air toxics rules for the oil and natural gas sector are scheduled to file motions governing further proceeding Aug. 29 in the suit, American Petroleum Institute v. EPA.

Stakeholders have asked the court to review EPA's 2012 National Emissions Standards for Hazardous Air Pollutants rules for the industry, which updated the agency's 1999 air toxics limits for oil and gas production, transmission and storage operations. The rule was issued alongside updated new source performance standards for the sector, which set controls for volatile organic compounds and sulfur dioxide emissions.

Inert Pesticides

EPA Aug. 27 will urge a federal judge to dismiss an environmentalist lawsuit in the U.S. District Court for the Northern District of California seeking to speed agency action to protect consumers against risks from inert ingredients in pesticides.

In seeking to dismiss the case, Center for Environmental Health, et al. v. Gina McCarthy, EPA notes that environmentalists filed the suit to compel the agency to complete a rulemaking requiring disclosure of inert ingredients, but argues the case is moot now that the agency has shelved plans for such a rule. EPA dropped plans for a rule in May, and outlined a plan for assessing and mitigating risks from inert pesticides on an individual basis.

But environmentalists, who have been pushing EPA to strengthen protections against risks from inert pesticide ingredients for years, say EPA's new course only further delays action on inert ingredients, and have asked the judge to set deadlines for agency action.

Florida Nutrients

Florida is set to file its first brief Aug. 25 in Florida Wildlife Federation, et al. v. EPA,the appeal of landmark litigation over nutrient limits for the state's waters -- an appeal that is expected to turn on a district judge's ruling to modify the 2009 consent decree between EPA and environmentalists that required the agency to promulgate strict numeric nutrient regulations for Florida.

The modification brought the terms of the consent decree in line with state-crafted criteria EPA supported in 2013, but which environmentalists attacked as too lax to satisfy EPA's 2009 determination that numeric nutrient limits were necessary to protect water quality in Florida.

Lead Paint

EPA is taking comment through Aug. 29 on its proposed Information Collection Request (ICR) to survey public and commercial building owners, managers and contractors about the renovation and repair activities that take place in such buildings and efforts to reduce lead paint exposure.

The information is intended to help EPA officials decide whether to regulate lead paint exposures stemming from renovation of public and commercial buildings, as it did in a 2008 rule in housing and child care facilities. Should the agency decide to move forward with the rule, staff will use the ICR data to estimate the costs and benefits of its regulatory options.

Other Events

The Great Lakes Advisory Board will meet Aug. 27 in Chicago, IL, to discuss possible changes to the Great Lakes Restoration Initiative, including an adaptive management framework for the groups' restoration efforts. The meeting comes as EPA is planning to require proposed Great Lakes projects to meet new climate change resiliency criteria as well.

State and local U.S. regulators will be among the speakers at Canada's “Grey To Green” conference on green infrastructure set for Aug. 25-26 in Toronto. Green infrastructure has been a top priority for the Obama administration.