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The Week Ahead

House Resumes Oversight Of TSCA; EPA Weighs Concerns Over Power Plant ELG

Posted: July 8, 2013

A key House subcommittee is resuming its oversight of the Toxic Substances Control Act (TSCA) as a prelude to legislative action in the lower chamber. House lawmakers are also preparing to vote on legislation that would bar the administration from launching an anticipated rulemaking to define the reach of the Clean Water Act. EPA is holding a public hearing on its recently proposed rule setting new discharge standards for coal and other power plants.

In Congress

With efforts to reform the Toxic Substances Control Act (TSCA) a major legislative priority in the Senate, a key House subcommittee is continuing its oversight hearings on the issue. The House Energy and Commerce Committee's environment and economy subcommittee is holding a July 11 hearing on “Regulation of New Chemicals, Protection of Confidential Business Information, and Innovation.”

Rep. John Shimkus (R-IL), the subcommittee's chairman, indicated at a June 13 hearing that he planned to hold a series of oversight hearings on how the current law operates as part of his effort to pursue legislative reforms. “I, for one, think we should closely examine TSCA and be open to legislation to update and reform it. Any attempt to do so from our end should start with fundamental oversight of how TSCA is designed and operated,” he said in his opening statement at the subcommittee's first oversight hearing.

While senators are divided over how much leeway to provide to states to enact stricter rules than EPA's, Shimkus said that GOP lawmakers in the lower chamber will back a TSCA reform bill that preempts state chemical control programs -- even though the GOP caucus generally favors a stronger role for states in environmental regulation.

In addition to the subcommittee hearing, the Environmental Law Institute is hosting a July 10 briefing on TSCA reform, including representatives from environmental groups, labor unions, the chemical industry and Senate Republicans.

As lawmakers return from their July 4 recess, the House appears poised to consider funding legislation for fiscal year 2014 that seeks to block the administration from issuing guidance or rulemaking to clarify the reach of the Clean Water Act (CWA) -- though the Senate version of the bill is silent on the issue.

House lawmakers are slated to vote this week on the FY14 energy and water appropriations bill that includes language barring the Army Corps of Engineers from using any funds “to develop, adopt, implement, administer, or enforce any change to the regulations and guidance in effect on October 1, 2012, pertaining to the definition of waters under the jurisdiction” of the CWA.

At EPA

EPA is slated to hold a July 9 public hearing on its recently proposed effluent limitation guideline (ELG) for steam-electric power plants.

If finalized, the rule would revise treatment technology requirements for power plants' wastewater discharges for the first time since 1982.

According to EPA, the proposed rule includes four options for updating the ELG that vary based on which waste streams are covered, the size of the units controlled and stringency of treatment, though it also calls for "flexibility in implementation through a phased-in approach and use of technologies already installed at a number of plants."

The Clean Water Act rule is a top priority for environmentalists, who are especially concerned over discharges from coal ash, which has become increasingly hazardous due to increased use of technologies needed to comply with EPA rules requiring coal-fired power plants to limit their air emissions. They have sought the new water rule, alongside a related EPA regulation under the Resource Conservation and Recovery Act (RCRA) governing coal ash and other coal combustion residuals (CCR), to create a more holistic cradle-to-grave pollution control system for releases from coal plants.

But industry groups are concerned over the rule's potential costs given their already large burden complying with the agency's air regulations.

EPA recently indicated that development of the ELG may allow the agency to proceed with a less-stringent “solid waste” regulation of coal ash under RCRA because the technologies required by the new ELG would reduce the industry's overall risk profile. While the agency noted in the proposed ELG that it has not yet completed its final risk assessment, it says in the ELG proposal that “reliance on the data and analyses [for the ELG]. . . may have the potential to lower the CCR rule risk assessment results by as much as an order of magnitude. If this proves to be the case, EPA’s current thinking is that, the revised risks, coupled with the ELG requirements that the Agency may promulgate, and the increased Federal oversight such requirements could achieve, could provide strong support for a conclusion that regulation of CCR disposal under RCRA Subtitle D would be adequate.”

EPA recently granted industry's request to extend the comment deadline on the proposed ELG from Aug. 6 to Sept. 20.

EPA is slated to close its comment period on its effort to develop rules governing lead paint remediation in public and commercial buildings.

Real estate groups and some lawmakers have already questioned EPA's legal authority to craft the proposed regulations arguing the agency must first complete a final rule determining that such activities create a public health hazard before issuing further regulations.

Casting further doubt on the agency's effort, industry groups also argued at a recent public hearing that the agency needs to collect additional exposure and other data to support its effort to determine whether repairs and renovations on commercial and public buildings pose a sufficient hazard from lead-based paint to warrant regulation

Energy

The Department of Energy is launching an effort to to evaluate the potential environmental impacts of its plan to spur development of high energy crops -- meetings that could renew debate on the crops' invasive potential and the adequacy of recent EPA efforts to address similar concerns in its renewable fuel standard program.

The department is holding “scoping” meetings July 9-11 in three states to hear input on its plans to develop the programmatic environmental impact statement for its program to test the use of engineered high energy crops in the eastern United States.

The crops are engineered to produce more energy per acre, but environmentalists are concerned that the crops could spread from fields and contaminate pristine areas. They are especially concerned after EPA approved use of napier grass and giant reed -- two potentially invasive species -- as "advanced biofuels"under its RFS program. While EPA's final rule, issued July 1, requires producers to take additional steps to minimize contamination risks, environmentalists are concerned the agency's rule -- as well as DOE's research program -- take further steps to limit risks.

According to a June 21 Federal Register notice, DOE's public scoping meetings will include July 9, 10, and 11 gatherings in Kentucky, Mississippi, and North Carolina respectively, as well as a July 17 web meeting.

In other energy events, the Environmental Council of the States is hosting a July 11 meeting on hydraulic fracturing issues. Topics include air and water quality impacts of the practice and a presentation titled “Best Practices: Supplementing Regulation With Voluntary Measures.” Keynote address is by Ben Grumbles, the former EPA water chief and former director of the Arizona Department of Environmental Quality.

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