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The Week Ahead

NAS Readies Advice On Pesticide Risks, Court Poised To Review EPA's Sludge Incinerator Rule

Posted: April 29, 2013

The National Academy of Sciences (NAS) is poised to unveil advice on how EPA and federal wildlife officials can overcome different statutory requirements when they assess pesticide risks to endangered species. A federal appellate court is slated to hear arguments over EPA's air toxics rule for sewage sludge incinerators, the only one of several standards for combustion facilities that the Obama administration declined to revise at industry's request.


A NAS panel of experts is poised to release April 30 its long-awaited recommendations to resolve differences in how EPA and other agencies assess the risks to endangered species, a report that officials hope will resolve key science questions that have been hindering consultations between EPA and wildlife services on pesticide registrations.

The report, “Assessing Risks to Endangered and Threatened Species from Pesticides,” was requested in 2011by EPA, the Department of Agriculture, the Department of Commerce's National Marine Fisheries Service and Department of Interior's Fish and Wildlife Service, which are jointly known as the services.

The report aims to resolve differences in the level of protections set by the Endangered Species Act and the Federal Insecticide, Fungicide & Rodenticide Act, which has made it difficult for EPA and the wildlife services to comply with the competing requirements.

Such difficulties have delayed consultations between the agencies and prompted a growing number of suits from environmentalists to force the consultations and to require mitigation -- including the recently dismissed "mega suit,"which alleged impacts of more than 300 pesticides on scores of species. Federal officials have complained that the lawsuits are tying up resources that could be used on additional consultations.

While EPA has long made the case that the NAS report will help resolve many of the issues surrounding the consultations, panel membersand environmentalistshave argued that the report will only address scientific problems and thus the agencies must work together and develop a transparent framework to reconcile the remaining policy issues.

Mathew Tejada, the new director of EPA's Office of Environmental Justice, is slated to discuss his priorities at an event hosted by the Environmental Law Institute April 30.

Tejada, the former executive director of the Air Alliance Houston, drew criticism from some EPA advisors when he was appointed due to his alleged lack of experience.

Since his hiring, Tejada appears to be keeping a busy public schedule. During an April 18 presentation to EPA's children's health advisors, Tejada touted the Superfund office's first assessment of the potential environmental justice impacts of the Lower Duwamish Waterways Superfund site in Washington state. Such assessments are "starting to happen," Tejada told the health advisors.

The novel environmental justice assessment recommends regulators find ways to provide local subsistence fishermen with uncontaminated fish because the proposed cleanup plan may not sufficiently reduce their risks.

The proposed cleanup plan is slated for discussion at public meetings to be held April 30-May 1 in Seattle. Written comments on the proposed cleanup plan are due by June 13.

Tejada also spoke at an April 26 event, “An Environmental Justice Forum for Buffalo Homes and Neighborhoods,” organized by SUNY Buffalo Law School and its Healthy Homes Legal Practicum and others.

EPA May 1 will brief federal radiation officials in Washington, D.C. on the Interagency Steering Committee on Radiation Standardson its just released draft interim protective action guide (PAG) for radiological incidents, a document that stems from a Bush-era effort to revise the guide for the first time since 1992.

The draft has drawn the ire of environmentalists and anti-nuclear groups who argue the new guide is too vague and could weaken federal radiation cleanup standards. EPA April 15 announced the availability of the PAG following almost two years of review by the White House. The PAG is meant to guide first responders at the scene of radiological emergencies, bringing together relevant government guidance and protocols on what steps should be taken, according to EPA.

Critics say the PAG lacks the specifics needed to guide first responders and could undermine EPA's Superfund cleanup limits by setting a new default approach for how to calculate the standards. The critics may turn to Congress or federal courts to force changes to the document, one environmentalist says, since they have little faith that EPA will revise the document extensively enough to address their concerns. The source says lawmakers, including Sen. Barbara Boxer (D-CA) and Rep. Ed Markey (D-MA), who were instrumental in forcing the review of a Bush-era document that led to EPA's just released guide, may be willing to again force agency action.

Environmentalists have questioned the timing of the draft's release, which came just days before Gina McCarthy, the current EPA air chief and nominee for agency administrator, appeared April 11 before the Senate Environment & Public Works committee for her confirmation hearing. The document was crafted by the Office of Radiation and Indoor Air, a branch of the air office where McCarthy has served as assistant administrator since 2009.

Opponents and supporters of EPA's proposed “Tier III” fuel and vehicle rule are testifying on the policy throughout the day April 29 at an agency-hosted public meeting in Chicago.

Advocates were expected to tout the health benefits and air quality improvements from the rule, which would tighten the cap on sulfur in gasoline from 30 parts per million (ppm) down to 10 ppm. Refiners and other opponents of the rule have long claimed that it will significantly increase production costs that they will pass on to consumers through higher gas prices.

At the first public meeting on the rule, held April 24 in Philadelphia, catalytic converter manufacturers urged EPA to quickly finalize the rule or risk undermining the agency's fuel efficiency and greenhouse gas standards for cars, saying more-efficient cars may ultimately increase their conventional pollution if they use gasoline produced at the existing sulfur cap.

EPA is also slated to host a session to discuss interstate air pollution transport issues with tribal air regulators at the April 30-May 2 National Tribal Forum on Air Quality. The session is the third in a series of stakeholder meetings EPA is hosting on a future transport plan.

States, EPA and others are wrestling with the next steps to curb upwind states' emissions that are hindering air quality in downwind states. A federal appeals court scrapped EPA's Cross-State Air Pollution Rule to curb air transport after finding flaws in how the agency implemented the rule. States at the meetings have been outlining competing priorities for a future air plan.

At an April 29 public meeting in Moapa, NV, the agency will also take comment on a plan for reducing regional haze in the state. Nevada is just one of several states that are working to meet EPA requirements for cutting emissions and improving visibility under EPA's haze program.

In Court

EPA is slated to defend its strict air toxics rule for sewage sludge incinerators (SSI) at May 3 oral arguments in a consolidated appeals court litigation filed by environmentalists, publicly owned treatment works (POTWs) operators and others over the policy.

The maximum achievable control technology (MACT) standard for the incinerators is the only rule out of a recent package of combustion emission regulations that EPA did not reconsider after issuing it. For the other rules in the package -- a boiler MACT, an air rule for commercial and solid waste incinerators (CISWI), and a waste definition rule -- the agency reconsidered the policies in response to industry concerns that the original versions of the rules were too stringent.

The boiler MACT, CISWI rule and waste definition rule are all now facing fresh legal challenges, though the SSI rule will be the first to proceed to oral arguments.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit will hear the arguments over the rule. In briefing, EPA has defended its decision to set a MACT rather than weaker generally available control technology (GACT) limits sought by industry, saying the Clean Air Act specifically required regulation of the units under the stricter controls.

Sierra Club -- which supports the decision to set a MACT instead of GACT standard -- criticized the rule for only requiring parameter emissions monitoring when the air law requires both emissions monitoring and parameter monitoring. But EPA's brief says the group "is mistaken on both the law and the facts," and that the monitoring requirements in the final rule are reasonable.

Other Events

Proponents of a carbon tax are looking for lawmakers to take up legislation to create the tax this year, though prospects of such a bill moving in the divided Congress are unlikely -- and an event this week could give critics grounds to further undermine the justification for supporting a carbon tax.

On May 3, the George C. Marshall Institute will host James DeLong of the Convergence Law Institute, who will release a study that “summarizes the political and economic forces that undermine the case for a carbon tax,” according to the Institute's website. The forces are: lack of an effect on temperature; lack of specificity about future energy sources; neglect of benefit from fossil fuels and carbon emissions; problems with models; and political pressures and practical problems.

Critics of a carbon tax could seize on the study to further undermine calls for a carbon tax, even as a group of senators is weighing options for new energy taxes.

The Senate Finance Committee recently released an options paper on possible energy and infrastructure tax reforms that cites a laundry list of policies from all sides of the political spectrum -- including enactment of a carbon tax or elimination of all energy tax breaks -- without tipping its hand on how the committee might proceed on the issue.

Former Bush EPA air chief Jeff Holmstead will speak May 1 at the American Foundry Society's annual Government Affairs Conference in Washington, D.C. on upcoming agency regulations, including EPA's delayed first-time greenhouse gas rule for power plants and a potential tightening of the agency's ozone national ambient air quality standard.

Renewable fuel industry officials will meet May 2 in Washington, D.C. for a forum on ethanol blends up to 15 percent, including representatives from the American Coalition for Ethanol and the Iowa Renewable Fuels Association.