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The Week Ahead


Editor's Note:
The Week Ahead did not publish May 27 due to the federal holiday -- the next Week Ahead will be published June 3.

Lawmakers Eye EPA Trading, Cleanup Policies, Final Briefs Due In Suit Over NOx-SOx NAAQS

Posted: May 20, 2013

EPA's water quality trading policies and its hazardous waste cleanup policies are subjects of congressional hearings slated to be held before lawmakers depart for their Memorial Day recess. A federal court is slated to receive final briefs on whether EPA is required to set a novel joint standard governing emissions of oxides.

On Capitol Hill

Congress is holding a suite of hearings prior to lawmakers' Memorial Day recess

The Senate environment committee's water and wildlife subcommittee is scheduled to hold a May 22 hearing on EPA's water quality trading policies. EPA is reviewing its 2003 policy that allow entities that have curbed releases to monetize those reductions and sell them to dischargers that may be exceeding regulatory limits to offset their excess releases.

A top EPA official said last year that the agency is willing to provide flexibility by allowing trading of credits outside of waters that are subject to regulatory pollution load caps, known as total maximum daily loads (TMDLs), a top request from wastewater management agencies as the agency reviews its decade-old trading policy.

But some environmental groups are suing EPA and others to block trading, though they will have to overcome a series of procedural challenges that the agency is making.

The House Energy & Commerce Committee's environment & economy subcommittee is scheduled May 22 to continue a hearing it began earlier this month on a set of bills seeking to bolster states' roles in hazardous waste cleanup policies.

Among other things, the bills waive sovereign immunity at federal Superfund sites and mandate a judicially reviewable role for states in selecting cleanup remedies. A third bill eliminates statutory deadlines that require EPA to review various hazardous waste regulations by a date certain.

But in testimony at a May 17 hearing, EPA and other agencies questioned the need for the legislation and warned of unintended consequences, such as additional litigation opportunities.

Speaking of Superfund, the House Transportation & Infrastructure Committee's water and environment subcommittee is slated to hold a May 22 hearing on EPA's fiscal year 2014 budget request where lawmakers are likely to question proposed cuts in the agency Superfund and water infrastructure budgets.

The Senate energy committee is wrapping up a series of forums it is hosting on natural gas policies, holding a May 21 roundtable on exports and a May 23 roundtable on shale development.

In Court

Final briefs are due May 20 in litigation over whether EPA has legal authority to craft a novel air quality standard governing emissions of both nitrogen oxide and sulfur oxide (Nox-SOx) as a way to limit acid deposition.

In Center for Biological Diversity (CBD), et al. v. EPA, et al., pending in the U.S. Court of Appeals for the District of Columbia Circuit, environmentalists are challenging EPA's 2012 decision deferring development of a joint NOx-SOx standard based on acid neutralizing capacity, saying data uncertainties made it impossible to meet a Clean Air Act threshold to justify the standard. Instead EPA said it would launch a five-year pilot research effort on the issue to determine the level of environmental protection that such a standard could offer.

The environmental plaintiffs say EPA is bound by the air act to develop the joint standard. But industry intervenors in the case charge that the air act bars EPA from ever issuing a joint secondary national ambient air quality (NAAQS) standard to jointly regulate NOx and SOx to reduce acidification, saying the agency lacks authority.

A federal court in Washington, DC, is slated to hear arguments May 23 on EPA and industry motions to dismiss environmentalists' litigation seeking to force the agency to regulate lead bullets under the Toxic Substances Control Act.

So far, environmentalists have been struggling to win their suit and are playing defense in Congress where many lawmakers back legislation clarifying that Congress never intended to give EPA authority to regulate the items. Given their difficulties so far, many environmentalists are now turning to states to address their concerns.

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