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The Week Ahead

Posted: August 18, 2014

Peer Reviewers Assess EPA Manufacturing Chemical Studies; SAB Weighs CWA Jurisdiction

Risk assessment experts will hold a two-day meeting this week to peer review EPA's draft studies on the health impacts of two ubiquitous perfluorochemicals (PFCs) once used in manufacturing, but now considered potential carcinogens. Meanwhile, an EPA Science Advisory Board (SAB) panel is slated to hold an informal discussion of the agency's Clean Water Act (CWA) jurisdiction rule.

PFC Peer Review

Peer reviewers will meet Aug. 20-21 to consider the merits of EPA's draft assessments of health effects from a pair of common chemicals once used in manufacturing, studies that are expected to shape future drinking water advisories and cleanup levels at contaminated sites across the country.

The review will encompass EPA's studies on the toxicity of the PFCs perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS) -- both of which are ubiquitous in the environment and have been widely used by industry, though they are now being phased out. The documents include draft reference doses (RfDs) that are expected to form the basis for lifetime health advisories for the chemicals in drinking water.

The agency is already facing criticism from industry and the Defense Department over the rationale EPA used to derive the draft risk estimates. Industry says the draft values are overly conservative, questioning EPA's reliance on findings of increased liver weight in rat studies as the basis for setting the risk levels for the chemicals.

CWA Jurisdiction

An SAB panel will hold an informal meeting Aug. 21-22 to discuss the scientific and technical basis for the agency's and Army Corps of Engineers' proposed rule seeking to clarify the scope of the CWA.

The review will be "informal" and not result in consensus advice but rather supply information to the chartered SAB on whether the April 21 proposed rule is adequately supported, and the SAB will then advise the agency on the scientific basis for the various components of the proposal.

The administration's pending proposal seeks to clarify the law's reach after a set of Supreme Court rulings created legal confusion over when smaller, isolated waters are jurisdictional under the law, and industry hopes the SAB panel will urge a "graded" approach for when waters share only "de minimus" connections and are therefore not jurisdictional.

Chesapeake TMDL Appeal

Industry is set to file its reply to EPA and environmentalists Aug. 21 in the ongoing litigation surrounding the landmark multi-state total maximum daily load (TMDL) cleanup plan for the Chesapeake Bay -- a case that has become a test for the agency's ability to regulate large, multi-state watersheds, with many critics concerned that a favorable ruling for EPA will open the door to similar requirements in the Mississippi River Basin and other watersheds.

In the reply, the National Farm Bureau Federation and other industry appellants will seek to refute claims that EPA has broad authority under the water law to set load limits for nonpoint sources and to enforce states' implementation plans for the TMDL.

Worker Protection Standards

Comments are due Aug. 18 on EPA's proposed revisions to its worker protection standards, which update the 20-year-old regulations to protect pesticide applicators and handlers from exposure to toxic substances. The proposed revisions call for annual training on how to prevent and treat pesticide exposures, and would require buffer zones precluding entry in areas around fields undergoing pesticide treatment, in order to reduce exposures from pesticide drift.

Environmentalists and worker advocates have already argued that the long-awaited proposal largely fails to protect pesticide applicators, and are likely to use their comments to renew their long-running calls for stronger worker protection standards.

CSAPR Stay

Proponents and critics of EPA's Cross-State Air Pollution Rule (CSAPR) emissions trading program face a revised Aug. 22 deadline for telling the U.S. Court of Appeals for the District of Columbia Circuit whether to grant EPA's motion to lift a stay on implementing the rule.

Although the Supreme Court earlier this year upheld CSAPR and reversed a D.C. Circuit decision scrapping the rule, the stay remains in place while the appellate court weighs lingering legal challenges that the high court did not address. Groups will say in their upcoming filings whether the court should approve the agency's request to lift the stay but delay the compliance deadlines by three years; grant environmentalists' alternative bid to lift the stay and implement the rule immediately without changing the deadlines; or leave the stay in place until all CSAPR-related suits are resolved.

'Interpretive' Rules

The Department of Justice (DOJ) is set to submit its first briefs Aug. 20 in a Supreme Court case that could limit EPA's leeway to revise its interpretations of existing regulations -- including a controversial CWA “interpretive” rule exempting certain farm practices from CWA discharge permits, which Administrator Gina McCarthy has recently signaled the agency will revise or eliminate after it has been harshly criticized by most stakeholders.

DOJ was originally due to file its brief Aug. 13 on behalf of the Department of Labor (DOL) in the linked cases Thomas Perez, et al. v. Mortgage Banking Association (MBA), et al. and Nickols, et al. v. MBA, et al., which test whether agencies must follow notice-and-comment rulemaking to revise their existing interpretations of rules. The administration is seeking to overturn a ruling by the D.C. Circuit that said DOL was required to follow notice-and-comment rulemaking procedures to revise a "definitive" 2006 interpretive rule that exempted mortgage officers from the protections of the Fair Labor Standards Act.

Oil And Gas Standards

Comments are due Aug. 18 for EPA's proposed revisions to its 2012 new source performance standards (NSPS) for the oil and natural gas production sector. The revisions, which would amend the agency's landmark NSPS setting first-time controls for curbing emissions of volatile organic compounds at hydraulic fracturing wells, are aimed at clarifying at what point in the initial compliance stage of the rules, which take full effect in 2015, flaring requirements would apply for the liquids unloading process, among other technical changes.

Other Events

EPA Region IV is hosting a municipal wet weather stormwater conference Aug. 18-19 in Charlotte, NC. Deborah Nagle, the agency's head of water permitting, is one of the headlining speakers, and other presenters will address stormwater permitting, monitoring and infrastructure in a variety of contexts.

California's state government is organizing the California Adaptation Forum Aug. 18-19 in Sacramento, with California EPA, water and air officials, as well as industry and local government organizations, presenting on a variety of topics related to climate change adaptation, including resilency and resource management.

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