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The Week Ahead

Posted: September 29, 2014

Supreme Court Weighs Ozone Appeal, McCarthy Touts EPA Water Jurisdiction Rule

The Supreme Court will consider whether to review EPA's tightening of the ozone national ambient air quality standard (NAAQS) at its Sept. 29 conference -- the first time in three months it will weigh hearing a new environmental case, and the start of a 2014 term that could also see decisions on “nuisance” suits over air pollution and EPA's power to revise its interpretations of rules. EPA Administrator Gina McCarthy meanwhile is set to tout the merits of the agency's Clean Water Act (CWA) jurisdiction rule in a Sept. 29 speech at a major water technology conference.

Supreme Court

The Supreme Court's first conference of its new term, set for Sept. 29, will include industry's petition to overturn a ruling by the U.S. Court of Appeals for the District of Columbia Circuit that upheld the agency's tightening of its ozone NAAQS – a case that tests EPA's discretion on setting NAAQS, a decision that by law must be based on scientific data without consideration of costs.

If the justices agree to hear the ozone case, Utility Air Regulatory Group (UARG) v. EPA, et al., it would be the first environmental suit to go before the high court in its 2014 term. However, the justices are also reviewing a decision by the D.C. Circuit that required agencies to go through notice-and-comment rulemaking when revising interpretive rules – which can be promulgated without notice and comment. That ruling, or the scope of a potential high court review, could affect when EPA can revise its regulatory interpretations.

Meanwhile, Supreme Court watchers are making their predictions for what actions the court might take this year, with George Mason University Supreme Court Clinic hosting a preview of the term Sept. 30, the Washington Legal Foundation giving its outlook in an Oct. 1 presentation and the U.S. Chamber of Commerce holding a separate preview event in Washington, D.C., Oct. 3.

Clean Water Act Jurisdiction

EPA's McCarthy will deliver a keynote address Sept. 29 at the Water Environment Foundation's (WEF) annual technical conference, WEFTEC, in New Orleans, LA, where she is set to defend the agency's controversial proposed rulemaking defining the scope of CWA jurisdiction.

According to an EPA spokesman, McCarthy will “focus on why the Clean Water Act proposed rule is so vital to protecting our water resources, communities and economy,” as well as addressing water quality rules and EPA's climate change policies.

She will draw on a report, co-authored by the Water Research Foundation and the Water Environment Research Foundation, that says investments in water utilities yield the same economic impact as other economic sectors as a way to boost support for the agency's proposed rule.

McCarthy's statements come as the agency's Science Advisory Board (SAB) is meeting by phone the same day to conduct a quality review of the proposed CWA rule, giving board members an opportunity to comment directly on the scientific validity of EPA's proposal. 

Environmental Justice

EPA's National Environmental Justice Advisory Council (NEJAC) is meeting Oct. 1-2 in Arlington, VA, to discuss issues related to climate change, in particular EPA's efforts on adaptation, community sustainability, and engaging environmental justice communities in addressing climate-related issues.

NEJAC has urged EPA to expand research on the disproportionate impacts of climate change on low-income and minority communities, in a January report that also called on the agency to weigh equity concerns when prioritizing chemicals for risk assessment, to improve data sharing with vulnerable communities, to better train agency scientists to engage those communities, and to develop criteria to determine whether agency research protects vulnerable populations.

Ethylene Oxide

The agency's SAB is holding a Sept. 30 conference call to brief members on its upcoming review of the draft risk assessment for the sterilizing chemical ethylene oxide.

Industry has argued that the agency's approach for the assessment is flawed and leads to overly stringent risk estimates, but EPA has rejected such criticisms, using the latest version of the analysis to further explain its approach while retaining a strict overall cancer risk value.

CISWI Rule Suit

Critics of EPA's emissions rule for commercial and solid waste incinerators (CISWI) are slated to file briefs Oct. 2 outlining their attacks on the rule. Their challenges have been consolidated in litigation pending in the U.S. Court of Appeals for the District of Columbia Circuit, part of a broader legal fight over the agency's package of combustion air rules.

Other legal challenges pending include a suit over EPA's air toxics rule for “major” source large boilers, and smaller “area” source boilers.

Legal Deadlines

Industry and environmental groups challenging EPA's  rule classifying commercial secondary materials sent to combustion units are set to submit their first substantive briefs in the case Sept. 29. Both sides have sued in the D.C. Circuit over EPA’s Non-Hazardous Secondary Materials (NHSM) rule, which determines whether a combustion unit must meet emissions limits in the Clean Air Act boiler maximum achievable control technology rule or the air law’s more stringent rule for commercial/industrial solid waste incinerators. Environmentalists argue that the rule leaves aside some dangerous wastes, while industry has said a strict rule would undermine recycling systems by preventing secondary materials from being discarded.

Opponents of EPA's passenger vehicle greenhouse gas (GHG) rules are slated to file briefs Oct. 2 in two related D.C. Circuit suits over the regulations. Petitioners will file a brief that day in California Construction Trucking Association, Inc. et al. v. EPA, in which the California construction industry is fighting the car rule on the grounds that the rules will force up vehicle costs. Separately, groups intervening in the second suit, Delta Construction Company Inc., et al.,v. EPA, et al., are slated to file briefs the same day. Biodiesel maker POP Diesel is part of the Delta Construction suit challenging EPA's truck rule for what the company claims is a failure to calculate the true "lifecycle" costs of conventional fuels compared to biodiesel, underestimating conventional fuel GHG emissions and leaving the biodiesel industry at a disadvantage.

Environmentalists are set to file their first merits brief Oct. 2 in Lois Alt, et al., v. EPA, et al., over CWA permitting for farm dust, feathers and other airborne pollutants from animal feedlots – the first action in the case since EPA declared that it intends to withdraw its appeal. Environmentalists, who intervened on EPA's behalf, have signaled that they intend to continue their case but sought a deadline extension to reconsider their strategy after the agency's announcement.

Other Events

EPA is hosting a “data summit” Sept. 29-30 in Durham, NC, to gather input on how the agency should use data collected through ToxCast, a collection of cellular assays intended to predict chemicals' toxicity their ideas for using massive amounts of new chemical data, as part of a joint effort with the Department of Defense to guide the application of new toxicity testing approaches in chemical policy and regulatory decisions.

Law firm Bergeson & Campbell is hosting an Oct. 1 webinar to discuss EPA's March guidance for considering spray drift as a pathway for exposure to pesticides. The method is likely to figure in risk assessments for pesticides, which in turn are used to justify EPA's actions on product registrations, but the agency's guidance has been widely criticized, with industry groups protesting overly conservative assumptions and environmentalists arguing that the model is not sufficiently rigorous.

SAB will hold an Oct. 3 discussion of EPA's latest draft of the Report on the Environment -- a comprehensive assessment of the health of the environment issued every four to six years -- that could follow on earlier statements by the board that agency staff should improve the report's “indicators” of sustainability and generally revise the document to better reflect the agency's goal of promoting sustainability. The draft report floated in April includes first-time indicators on sustainability, such as energy use and freshwater use.

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