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The Week Ahead

EPA Defends Plan To Clarify CWA's Reach, 9th Circuit Weighs RCRA Rules For Diesel PM

Posted: April 7, 2014

EPA Administrator Gina McCarthy and other top officials are defending the agency's controversial proposed rule clarifying the reach of the Clean Water Act. A federal appellate court in California is holding oral arguments in a novel citizen suit that seeks to regulate diesel particulate emissions as a “waste” under the Resource Conservation & Recovery Act.

Clean Water Act Jurisdiction

EPA Administrator Gina McCarthy is heading to the US Water Alliance’s 2014 US Water Prize Ceremony April 7 where she is expected to tout the administration's recently proposed rule clarifying the scope of the Clean Water Act (CWA) over smaller waters, such as intermittent streams, isolated wetlands and other waterbodies.

According to EPA, McCarthy will discuss “EPA’s continued efforts to safeguard our waterways, including the Agency’s recent landmark proposal to clarify protections for the nation’s streams and wetlands under the Clean Water Act.”

The measure could do with some defending as it faces broad opposition from many lawmakers, industry groups and other critics who charge it will expand EPA's regulatory reach. Already, some GOP lawmakers are pushing legislation that would block EPA and the Army Corps of Engineers from spending funds to “study, promote, advertise, implement or otherwise promulgate” the regulation.

While such legislation is unlikely to be adopted, other lawmakers are urging the administration to ease any regulatory impacts. A group of 14 GOP senators wrote EPA last week urging the administration to codify the narrow test crafted by Supreme Court Justice Antonin Scalia for determining whether waters are subject to the CWA, in addition to the broader test advanced by Justice Anthony Kennedy that EPA is proposing to adopt.

Many critics are also warning the agency of potential lawsuits should the regulation be codified in its current form. Sources say the rule is likely to avoid a facial challenge because the proposal allows agencies to make case-by-case determinations over waters that are only vaguely defined, such as isolated, non-adjacent wetlands and "other" waters, such as prairie potholes and playa lakes. Instead, sources say the agency is likely to face “as applied” challenges when it seeks to assert jurisdiction over these waters.

EPA's proposed jurisdiction rule, as well as other pending water policy matters, are also likely to gain attention at several other events surrounding Water Week 2014, the annual gathering in Washington, DC, where water professionals gather to “consider and advocate for national policies that advance clean and safe waters and a healthy sustainable environment.”

The Association of Metropolitan Water Agencies (AMWA) holds its 2014 water policy conference April 6-9, where participants are slated to hear from a range of speakers, including EPA Deputy Administrator Bob Perciasepe discussing agency priorities, Deputy Interior Secretary Micheal Connor discussing water supply, climate change and western water issues, and EPA drinking water chief Peter Grevatt.

One key item of discussion is likely to be whether Congress will approve a new pilot EPA water infrastructure loan program to help finance large-scale projects AMWA's members are seeking.

The National Association of Clean Water Agencies (NACWA), the Water Environment Federation (WEF), and the Water Environment Research Foundation (WERF) are also hosting a National Water Policy Forum that will focus on a range of infrastructure, stormwater and other issues.

On Capitol Hill

EPA's pending rules governing greenhouse gas (GHG) emissions from power plants are likely to continue to be a focus for lawmakers, along with the CWA jurisdiction rule.

Janet McCabe, President Obama's nominee to head EPA's air office, is slated to appear at her confirmation hearing before the Senate Environment & Public Works Committee April 8, an event that will almost certainly spark renewed attention on the administration's air quality and GHG policies.

Led by Sen. David Vitter (R-LA), the committee's Republicans and other GOP lawmakers have already signaled they plan to make the cost of air rules a major issue. Last week, Vitter and others filed two amendments to pending unemployment insurance legislation that sought studies on the cost of EPA air rules, including one that sought to require a study using a “whole economy model”for assessing the rules' costs. In a related note, EPA is taking comment through April 7 on how to conduct so-called economy-wide modeling.

Other GOP lawmakers, like Sen. John Thune (R-SD), filed an amendment that sought to block EPA's pending climate rules, though Democrats blocked it from consideration.

Ann Dunkin, the administration's nominee to lead EPA's Office of Environmental Information, is also slated to appear before the environment committee April 8.

McCarthy, EPA's administrator, is also likely to face tough questions over the GHG and other rules at an April 9 hearing before the Senate Appropriations Committee's Interior and Environment Subcommittee.

In the House, the Transportation & Infrastructure Committee is slated April 9 to mark up up H.R. 524, a bill that would eliminate EPA's power to veto projects permitted by the Army Corps of Engineers. The committee is advancing the bill after the Supreme Court let stand a lower court ruling that allowed the agency to exercise its veto “whenever” it finds the project will cause adverse effects. The high court's decision backed the agency's decision to veto a coal mining project long after the Corps permit was issued and also put the agency on a more solid footing as it weighs whether to veto an Alaska mining project long before a permit is sought.

The House Energy & Commerce Committee's energy and power subcommittee April 8-9 is marking up legislation that would ease approval of liquefied natural gas (LNG) facilities. Testifying before the committee last week, EPA's McCarthy downplayed prior agency concerns that construction of the facilities could increase both direct and indirect increases in GHG emissions.

The House Appropriations Committee's energy and water subcommittee is holding an April 8 hearing on the Energy Department's environmental cleanup program.

In Court

The U.S. Court of Appeals for the 9th Circuit is slated to hold oral argument April 8 in Center for Community Action v. BNSF Railway Co, a long-running citizen suit filed by environmentalists and community groups seeking to use the Resource Conservation and Recovery Act (RCRA) to regulate diesel emissions.

The plaintiffs are hoping to overturn a lower court ruling that found the emissions are already regulated under the Clean Air Act and do not qualify as waste subject to RCRA.

In particular, the district court held that diesel particulate matter (DPM) generated by locomotives is not a waste because it is not “discarded.” Nor can DPM be regulated by RCRA because although Congress chose not to regulate indirect sources of air pollution -- such as a railyard -- under the air act, the trains that service the railyards are sources covered by the air law.

But in briefs filed early in the appeal, environmentalists argued that DPM qualifies as a “waste” that should be regulated by the federal law and that the lower court lacked discretion to dismiss the suit.

Industry defendants in the case have warned that if environmentalists win on the merits, it would allow EPA and states to regulate DPM under RCRA, as well as providing courts broad authority "to regulate any engine that produces particulate emissions incident to combustion of fuel: not merely diesel locomotives, but all cars, trucks and other fuel-powered engines engaged in 'commercial operations' or 'community activities'," they said in their motion to dismiss.

EPA's regulation of diesel emissions from locomotives and other sources is also likely to be a topic of discussion at EPA's Port Stakeholder Summit 2014: Advancing More Sustainable Ports, which is being held in Baltimore, MD, April 8. The event features presentations from top agency officials, including McCarthy and McCabe, as well as Chris Grundler, director of EPA's Office of Transportation & Air Quality, and Dennis McLeran, administrator of EPA Region X.

Other courts are also focusing on EPA policy. The D.C. Circuit heard oral argument April 7 in Monroe Energy, LLC, et al., v. EPA , a case challenging the agency's renewable fuel standards for 2013. In the days before the hearing, EPA and refiners were trading briefs over the scope of the suit.

Final briefs are also due April 7 in Alliance of Automobile Manufacturers, et al., v. EPA, a suit pending in the D.C. Circuit over EPA's rule intended to limit misfueling in vehicles and engines after the agency approved the use of 15 percent ethanol blends (E15).

EPA is slated April 7 to defend its call for a narrow court remand of its boiler and incinerator rules after environmentalists urged the court to grant a much broader request. Many industry groups are also concerned about the agency's request, though they are divided on how to resolve growing legal and regulatory "confusion."

On ozone, meanwhile, industry groups have until April 10 to decide whether to ask the Supreme Court to overturn a lower court ruling upholding EPA's ozone air quality standard. Chief Justice John Roberts gave the Utility Air Regulatory Group and the Ozone NAAQS Litigation Group until April 10 to decide whether to petition for review of the D.C. Circuit's 2013 ruling in State of Mississippi, et al. v. EPA, et al. which upheld most of the agency's 2008 ozone standard.