Forgot password?
Sign up today and your first download is free.

The Week Ahead

EPA Poised To Issue Cooling Water Rule; Supreme Court Weighs Petition In MTBE Case

Posted: April 14, 2014

EPA is poised to complete its long-awaited rule governing cooling water intake structures at power plants and other industrial facilities. The Supreme Court later this week will meet to decide whether to hear ExxonMobil's case arguing that the Clean Air Act should preempt a landmark methyl tertiary butyl ether water contamination suit.

Cooling Water Rule

EPA is slated April 17 to finalize its long-awaited rule governing cooling water intake structures at power plants and other industrial facilities, one of several major regulations governing power plants that the agency is crafting.

The rule could be one of the first Clean Water Act rules to account for the impacts of climate change. House Democrats, for example, have urged EPA to require power plants and other industrial facilities to install highly efficient but costly closed-cycle cooling water technologies in its upcoming rule to account for the prospect of increased drought and heat waves.

The regulation has been the focus of an intense lobbying effort by industry, including a push by the nuclear sector to soften the rule's fish safety requirements due to the sector's role in providing extensive carbon-free electricity.

Letters from utility executives show EPA making some changes to address industry concerns, and EPA Administrator Gina McCarthy recently acknowledged the rule's potential impact on the sector, saying, "I think they will find that when this final rule is released that we have listened very closely to their comments.”

But environmentalists -- who will almost certainly sue once EPA issues the final rule -- are concerned that the agency has weakened key provisions to address industry criticisms, including eliminating requirements to monitor for potential endangered species impacts and scaled back mandates for plants to install costly closed-loop cooling systems. One source says environmentalists have low expectations for what EPA will include in the final rule.

Though EPA has received a number of extensions to a court-ordered deadline to finish the rule, observers expect the agency to meet the latest deadline.

MTBE Liability

Supreme Court justices at an April 18 conference will decide whether to grant ExxonMobil's request to reverse an appellate ruling forcing it to pay $104 million for water contamination in New York from the gasoline oxygenate methyl tertiary butyl ether (MTBE) -- a case that relies to an extent on the company's argument that Clean Air Act policy judgments should preclude the ruling.

In asking the high court to hear the appeal, Exxon has argued that the U.S. Court of Appeals for the 2nd Circuit's July 26 ruling that upheld a lower court's decision on the award for groundwater contamination in New York "obstructs the federal government's ability to implement policy decisions with real-world tradeoffs," because it hinders EPA's ability to make Clean Air Act policy judgments such as allowing MTBE's use when it knew of contamination risks.

New York City is fighting Exxon's claim that the ruling is flawed because the Clean Air Act effectively mandated MTBE's use. The city says Exxon's arguments that the air law preempts the claims are baseless. Lower courts have correctly found the company liable for spilling MTBE that contaminated groundwater in Queens, NY, and for failure to warn those to which it sold the additive of the likelihood that it could contaminate water, according to the city.

Following the upcoming conference later this week, the Supreme Court could announce as early as April 21 whether it will grant or deny ExxonMobil's request to take the case.

Water Infrastructure

EPA's water funding programs -- ranging from its clean water and drinking water state revolving funds (SRFs) to efforts to promote green infrastructure -- will be the focus of a Council of Infrastructure Financing Authorities (CIFA) policy conference in Washington, D.C., April 14-15. CIFA is a non-profit organization of state environmental agencies and other organizations.

Several key EPA officials will give presentations at the event, including Office of Wastewater Management Director Andrew Sawyers and Office of Ground Water and Drinking Water Director Peter Grevatt. The agenda for the event includes discussions of water infrastructure resiliency, funding green infrastructure, and “Buy American” provisions on which items such as pipes used in water infrastructure projects must be made in the United States.

EPA last month issued new guidance implementing the Buy American provisions for EPA's water infrastructure funding programs included in the fiscal year 2014 omnibus funding legislation that is largely similar to the agency's instructions on implementing previous purchasing requirements.

For FY15, EPA is proposing to significantly cut funding for the two water SRFs, but the proposal is facing significant push-back from Democratic and Republican lawmakers. But even with that opposition, a key House appropriator says the SRF funding cuts could ease Congress' path as lawmakers weigh alternate funding approaches, which sources say could include a new pilot EPA water infrastructure loan program, thanks to the proposed cuts.

Climate Geoengineering

American University's Global Environmental Politics Program is sponsoring an April 15 discussion in Washington, D.C., on whether geoengineering is the answer to climate change. Geoengineering is the use of nascent technologies that seek to mitigate climate change by limiting solar radiation, or by removing carbon dioxide or other greenhouse gases from the atmosphere directly. Critics warn geoengineering could have dangerous side effects.

According to an announcement of the event, experts will debate the pros and cons of using large-scale technological interventions to tackle climate change. “These proposals are gaining scientific and political traction as long term agreements remain elusive. However, climate geoengineering approaches are also being subjected to heightened levels of scrutiny given the potential threat that they could pose to human institutions and natural ecosystems,” the announcement says.

Panelists for the event include Wil Burns of Johns Hopkins University, Simon Nicholson of American University, Janie Wise of Cassidy and Associates, and Shravya Reddy, director of the Science and Solutions Team with the Climate Reality Project.

Offshore Drilling

Non-partisan think tank Resources For The Future (RFF) is hosting an event with officials from the Department of Energy (DOE) and Department of Interior (DOI), among others, on “lessons learned” almost four years after the Deepwater Horizon explosion and oil spill in the Gulf of Mexico.

The event will analyze progress made to date on restoration in the Gulf, and what lessons could apply for proposed offshore drilling in the Arctic. “The Atlantic coast is also of interest for oil and gas exploration. What lessons from the Gulf restoration experience should help inform how we go about drilling in the Arctic and along the Atlantic coast?” says RFF's website for the event.

Participants in the event include DOE Principal Deputy Assistant Secretary for Fossil Energy Christopher Smith, DOI Bureau of Ocean Energy Management Chief Environmental Officer William Brown, Jacqueline Savitz from Oceana, and others.