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The Week Ahead

Posted: October 20, 2014

D.C. Circuit Poised To Hear Suits Over EPA Policies; Briefs Due In Climate, Water Suits

The U.S. Court of Appeals for the District of Columbia Circuit is poised to hear arguments this week in litigation over EPA's approach to designating areas as either attaining or in nonattainment with its ozone ambient air quality standard, and a separate legal bid to force new toxics rules for lead bullets. Briefs are also due this week in suits over EPA's greenhouse gas (GHG) permitting program and the agency's recently finalized Clean Water Act (CWA) rule for cooling water structures.

D.C. Circuit Arguments

The D.C. Circuit is set to hear oral arguments Oct. 21 in Mississippi Commission on Environmental Quality, et al., v. EPA, the appeal of Delaware and Connecticut's bid to force the novel designation of a broad swath of the Eastern seaboard as out of attainment with EPA's 2008 national ambient air quality standards (NAAQS) for ozone. If successful, the suit would impose strict pollution controls on industry with the possibility of the termination of the affected states' highway funds if they do not meet the NAAQS by specified deadlines.

The two states, which have struggled with high ozone levels, pursed the idea as a way to address interstate transport of ozone and its precursor pollutants after EPA's Cross-State Air Pollution Rule (CSAPR) was struck down by the D.C. Circuit. CSAPR was designed to curb ozone-forming emissions and helps attain the NAAQS. The Supreme Court reinstated CSAPR, but implementation is still on hold while the appeals court considers more limited aspects of the rule on remand, as well as EPA's request for the D.C. Circuit to lift its stay on reviving the rule.

On Oct. 24, the court will also consider Trumpeter Swan Society, et al. v. EPA, et al., where the Center for Biological Diversity (CBD) and other environmentalist groups hope to compel EPA to regulate lead in ammunition under the Toxic Substances Control Act (TSCA).

The suit is part of CBD's effort to protect wildlife, including the endangered California condor, from the neurotoxic effects of lead, which the Centers for Disease Control & Prevention says has no safe level of exposure. It comes after EPA in 2010 and 2012 rejected CBD petitions to regulate lead in ammunition under TSCA, arguing that lead bullets and shot are exempt from regulation under the chemicals law because of an exclusion for items taxed as firearms or ammunition. And district court judges have dismissed separate challenges under TSCA and the Resource Conservation & Recovery Act that sought tighter regulation of lead bullets.

Climate Change Litigation

New legal briefs are due Oct. 21 in two closely watched appeals before the D.C. Circuit addressing GHG permit issues in the wake of the high court's June 23 ruling in Utility Air Regulatory Group v. EPA that narrowed the scope of the agency's prevention of significant deterioration (PSD) GHG permitting program. The high court said EPA should determine a de minimis GHG threshold for PSD “anyway' sources -- those that would be subject to best available control technology requirements due to their emissions of conventional pollutants.

EPA is due by Oct. 21 to file its response to petitions for rehearing in State of Texas, et al. v. EPA, where industry and states petitioners charged that until EPA sets its de minimis thresholds under the high court decision, it is not lawfully allowed to permit GHGs. But if the states succeed in getting the D.C. Circuit to reverse its earlier ruling, it is not clear what practical impact, if any, a reversed ruling would have because Texas -- the lead litigant in the case -- has since adopted its own GHG permit program and EPA has proposed to approve it.

Motions to govern are due Oct. 21 in Coalition for Responsible Regulation v. EPA, where states and industry groups say a lower court ruling upholding federal implementation plans that include GHG limits must be overturned in light of the high court's decision. They argue that EPA must first issue its rule establishing de minimis GHG emission thresholds for when PSD permits will have to include GHG limits, and give states three years to amend their implementation plans to include the new GHG requirements, before taking action.

Cooling Water

Opening briefs are due Oct. 20 in industry and environmentalists' challenge to EPA's rule governing CWA permits for cooling water intake structures, Cooling Water Intake Structure Coalition, et al., v. EPA, before the 4th Circuit. The rule generally seeks to limit harms from cooling water intake systems at existing power plants and other facilities by setting technology standards.

Environmentalists in comments however have attacked the rule as too lax, arguing that it should have designated a single technology as the best available, while industry has largely backed its substantive measures but said that it includes contradictory testing and application provisions that could prevent new facilities from seeking permit coverage.

Aircraft Emissions

EPA's Office of Air & Radiation is holding a conference call Oct. 22 to consider the environmental justice aspects of its assessment of the danger posed to public health and welfare by aircraft GHG emissions -- the first step of a formal process that could lead to regulation of the emissions. The administration is considering the move ahead of a potential global agreement on mandatory aircraft GHG reductions that many countries could sign by 2016.

Environmentalists have welcomed the assessment, but insist that EPA's domestic obligation to regulate aircraft GHG emissions exists independent of any international talks. The agency has announced that it expects to issue a draft finding in April, with a final finding in April 2016 -- and the agency expresses confidence that countries will have agreed by February of that year on a plan to cut aircraft GHGs.

EPA Quality Assurance

EPA headquarters and Region 6 staff are set to speak at the agency's annual Quality Assurance Conference, Oct. 20-23 in Dallas, TX. Topics on the agenda include water quality monitoring, pesticides' impacts on pollinators, water and air sampling methods, and the impact of fracking on well water, among others. Monica Jones, director of EPA's quality staff, will deliver opening remarks.

Hydraulic Fracturing

The Energy Bar Association is holding an Oct. 21 seminar in Washington, D.C., titled Fracking Revisited -- Current and Past Developments” that will examine "fracking 101 basics” as well as an analysis of recent court rulings on fracking issues. Panelists include former Pennsylvania environment chief John Hanger.

Environmental Law Institute

The Environmental Law Institute is hosting three events examining prominent EPA rules and programs, beginning with an Oct. 21 policy forum on the role of state leadership in “cooperative federalist” environmental regulation, especially the newly proposed GHG rules for existing power plants, which as drafted will rely heavily on states to craft their own implementing policies. The forum comes as states are facing a dilemma over how to comply with the rules, including potential conflicts between mandates issued by EPA and the Federal Energy Regulatory Commission.

Also scheduled for Oct. 21 is a webinar on wetlands restoration, “Landscape-Scale Identification of Actually Restorable Wetlands.” The program will highlight preliminary results from a study that seeks to use geographic analysis and field reconnaissance to select promising sites for wetland restoration projects.

Finally, the group is hosting its annual conference on green infrastructure, “It's Easy Being Green -- Challenges and Solutions,” Oct. 23 in Philadelphia, PA. The program will focus on “the challenges of regionalization on green infrastructure,” as well as discussions of drought and water supply issues and the impact of Chesapeake Bay states' strategy for implementing green infrastructure.

Drinking Water

The Association of State Drinking Water Administrators Conference is holding its annual conference Oct. 19-23 in Albuquerque, New Mexico. Peter Grevatt, director of EPA's office of ground water and drinking water, will deliver opening remarks, and topics on the agenda include methods for cleaning up chemical spills, climate change resiliency, cybersecurity for drinking water systems and monitoring data for contaminants on EPA's Unregulated Contaminant Monitoring List.

Other Events

The American Bar Association's Pesticides, Chemical Regulation, and Right-To-Know Committee is hosting an Oct. 24 forum in Washington, D.C., to discuss TSCA reform legislation, in particular the House bill championed by Rep. John Shimkus (R-IL), Chair of the Energy and Commerce Committee's environment panel.

The discussion will include John Stone and David McCarthy, who serve as counsel and chief counsel respectively for the energy and commerce committee, and comes after negotiations over a Senate TSCA reform bill appear to have broken down following Sen. Barbara Boxer's (D-CA) release of draft legislation, which led Sen. David Vitter (R-LA) to declare that he would no longer support the latest compromise measure.

The law firm Steptoe & Johnson will host an Oct. 23 webinar on vapor intrusion regulation, including site-specific modeling to gauge intrusion of the toxin benzene. EPA recently sent for White House review its new guidance for assessing and mitigating vapor intrusion from chlorinated solvents and petroleum hydrocarbons, signaling the agency may soon finalize policies that cleanup experts expect will be a "game changer" at contaminated sites due to likely increased cleanup liability.

Environmentalists meanwhile are due to respond Oct. 24 to industry's petition asking the 9th Circuit to rehear its ruling narrowing the Clean Water Act general stormwater permit "shield" for dischargers' liability for non-stormwater releases. Industry in its petition for rehearing in Alaska Community Action on Toxics, et al. v. Aurora Energy Services, LLC, et al. argued that the unanimous Sept. 3 decision renders meaningless the pollution management plans that CWA permit holders must follow.