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The Week Ahead

EPA's McCarthy Slated For Committee Vote; SAB Panel Weighs EPA's Fracking Research

Posted: May 6, 2013

Congress is returning from a short recess with the Senate environment committee slated to vote on Gina McCarthy's nomination to lead EPA and the full Senate expected to vote on water resources legislation. EPA's Science Advisory Board is preparing to review the agency's initial research being gathered for its congressionally directed study on drinking water risks posed by hydraulic fracturing.

In Congress

The Senate environment committee is slated to hold a May 9 vote on the administration's nomination of Gina McCarthy, currently EPA's air chief, to be the agency's next administrator.

While McCarthy is widely expected to eventually win Senate support, Republicans are throwing up some new hurdles in advance of the May 9 vote, including renewed concerns over EPA's alleged lack of transparency.

The Senate is also expected to begin voting May 6 on a bill funding the Army Corps of Engineers, a measure that includes controversial provisions streamlining environmental review requirements for Corps projects and a pilot program creating a new EPA water infrastructure funding mechanims.

EPA Acting Administrator Bob Perciasepe is slated to testify at a May 8 hearing before House appropriators on the agency's proposed fiscal year 2014 budget request.

Hydraulic Fracturing

An EPA Science Advisory Board (SAB) panel is slated to meet May 7-8 in Arlington, VA, to take an initial look at the research EPA has gathered so far for its congressionally directed study assessing risks to drinking water from hydraulic fracturing, which could be used to set future regulatory policies.

Even before the ad hoc peer review panel meets, energy industry groups are criticizing EPA's initial efforts, saying the agency needs to account for limitations in its research. “EPA has not appropriately acknowledged the limitations of its research to achieve the agency's stated goal of informing the public and providing decision makers at all levels with high-quality scientific knowledge that can be used in decision-making processes,” American Exploration & Production Council, America's Natural Gas Alliance, American Petroleum Institute and Independent Petroleum Association of America told the SAB panel in an April 30 letter.

EPA says it expects to complete the study in 2014, a deadline the agency says it still plans to meet even though officials recently extended the agency's public data collection efforts.

In other hydraulic fracturing news, administration officials are likely to face questions over a pending regulation being crafted by the Department of Interior requiring drillers on federal lands to disclose the chemicals used in fracking fluid.

The department's new secretary, Sally Jewell, said recently the proposed rule will be issued shortly.

Officials are likely to face questions over the measure at a May 7 hearing before the Senate Appropriations Committee interior panel on the department's fiscal year 2014 budget request. And the House Natural Resources Committee is slated to hold a May 8 hearing on the pending regulation.

A draft version of the department's regulation that was leaked earlier this year allowed industry to report their chemical usage to the voluntary state-based database, FracFocus, while also exempting enhanced recovery and other processes from the disclosure requirements.

But a recent study from Harvard Law School is criticizing the use of FracFocus as the basis for mandatory chemical disclosure rules, raising doubts about the administration's plans to allow disclosure to the database in its pending fracking rules.

The effects of fracking are also likely to be a top of discussion at a May 7 hearing on energy exports before the House Energy & Commerce Committee's energy and power panel.

In The Courts

The Supreme Court justices are slated to decide May 9 whether they will hear a case testing how much deference courts should provide EPA in suits challenging the stringency of its Clean Water Act permit limits, a crucial issue as the agency works to encourage states to “translate” their narrative water quality criteria for nutrients into numeric permit limits.

Lawyers representing the wastewater treatment sector are asking the court to overturn an August 2012 ruling, Upper Blackstone Water Pollution Abatement District v. EPA , in which the U.S. Court of Appeals for the 1st Circuit granted EPA “extreme deference” when setting permit limits.

A ruling in the case could create precedent to guide EPA in crafting numeric limits in National Pollutant Discharge Elimination System (NPDES) permitseven in cases where waters are subject to narrative criteria, a position that the agency has increasingly moved toward as it seeks to regulate nutrient discharges based on many states' narrative criteria.

Should the high court decline to overturn the case, it will likely prompt increased lobbying in Congress by municipal officials concerned over the science EPA is using when crafting numeric permit limits.

Lawyers representing Texas and utility industry groups are also scheduled to appear May 7 before the U.S. Court of Appeals for the District of Columbia Circuit as part of their effort to reverse EPA's preemption of Texas' clean air permitting program for greenhouse gases (GHGs).

In a final round of filings prior to the oral arguments, lawyers for the parties argued over whether a recent Clean Water Act ruling upholding the EPA's power to revoke disposal permits “whenever” it finds harm justifies its takeover of GHG permitting in the state.