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The Week Ahead

Democrats Try Again On McCarthy Vote, Court Weighs NSR Enforcement Deadlines

Posted: May 13, 2013

Senate Democrats will try for a second time in as many weeks to send to the Senate floor President Obama's nomination of Gina McCarthy to serve as EPA administrator. A federal appellate court is slated to hear oral arguments on how long EPA has to bring enforcement actions for alleged violations of its new source review rules.

In Congress

Senate environment committee Chairwoman Barbara Boxer (D-CA) is vowing to try again May 16 to report out President Obama's nomination of Gina McCarthy to serve as EPA administrator after the committee's Republicans boycotted a scheduled May 9 business meeting, where the vote was to have occurred, because of inadequate responses from EPA, leaving Boxer without a quorum.

Boxer sent Republicans a letter May 10 informing them of the rescheduled vote and urging them to attend the meeting even if they decide to vote against McCarthy's nomination.

Environment committee rules generally require one third of the panel's total 18 senators to be present for votes, including at least two senators from the minority party. But Rule 2(d) appears to allow measures to be reported out of committee to the full Senate if all Democrats are present.

Meanwhile, the environment committee's top Republican, Sen. David Vitter (LA), is slated to meet May 14 with acting EPA Administrator Bob Perciasepe over the transparency issues that prompted Republicans to boycott last week's business meeting.

Boxer and Vitter may be duking it out over McCarthy's nomination but the two lawmakers are currently working in unison to win speedy floor approval for their bill funding the Army Corps of Engineers, which includes controversial language streamlining environmental review requirements for water resource projects. The Senate is expected to vote May 14 to end debate and proceed to substantive consideration of several pending amendments, including a measure that would limit the reach of EPA and the Corps' authority under the Clean Water Act.

The underlying bill also includes language creating new pilot programs at EPA and the Corps to provide low-interest loans to municipalities for large water infrastructure projects.

In the House, the Energy & Commerce Committee environment subcommittee is holding a May 17 hearing on a suite of bills that seek to strengthen states' roles in hazardous waste cleanup decisions, including a measure waiving sovereign immunity under Superfund law, and limiting regulatory burdens on industrial parties.

The panel is also holding a May 16 hearing on EPA's fiscal year 2014 budget request.

In Court

The U.S. Court of Appeals for the 3rd Circuit is slated to hear oral arguments May 15 in a new source review (NSR) case where EPA is appealing an adverse lower court ruling that found the general five-year statute of limitations bars the agency from pursuing claims that the facility made illegal modifications without complying with NSR permit requirements.

A wrinkle to this case -- along with one that was argued last year in the 7th Circuit and awaiting a ruling -- is industry's claim that new owners cannot be held liable for alleged illegal modifications made by prior owners, since the plants were sold in the interim.

Briefing wrapped up earlier this year in the 3rd Circuit case, United States of America v. EME Homer City Generation LP, et al.

The 7th Circuit heard oral arguments in that case, United States of America v. Midwest Generation LLC, et al. last September, where a three-judge panel appeared skeptical of EPA's bidto reverse a lower court ruling that found regulators cannot pursue NSR enforcement against new owners when more than five years had passed and the modifications were made by the prior owner.

EPA has argued that if the lower court rulings stand, it will allow facilities to buy and sell their way out of NSR obligations, which require plants that were grandfathered from the Clean Air Act to install modern pollution controls when they make modifications that increase emissions.

Natural Gas

EPA is taking comment through May 13 on its proposal to revise its new source performance standard (NSPS) for the oil and gas industry, the first air rule that sought to regulate harmful emissions from the booming drilling sector. The agency is seeking comment on its proposal to extend compliance deadlines and allow potential exemptions for some storage tank emission controls.

The Senate Energy & Natural Resources Committee May 14 is holding the first of three roundtables on natural gas policies. According to the committee's website, the upcoming forum “will explore what the next applications are for natural gas and how this new demand will be met. Pipeline infrastructure and increased use of natural gas in the transportation sector will be specific points of interest.”

A May 21 forum () “will examine estimates of domestic supply and the potential benefits or unintended consequences caused by expansion of natural gas exports,” the committee says.

In the House, Rep. James Lankford (R-OK), chair of the Oversight and Government Reform Committee's energy panel, will host a May 16 hearing entitled “Opportunities Lost: Constraints on Oil and Gas Production on Federal Lands and Waters.”

The hearing will examine administration policies towards energy production on federal lands and waters.