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The Week Ahead

Court Considers EPA Bid To Stay Nutrient Ruling; EPA Weighs Vapor Intrusion Controls

Posted: March 17, 2014

EPA is scrambling to convince a federal court to delay a requirement that the agency must respond to environmentalists' petition seeking a determination on the adequacy of state nutrient control programs in the Mississippi River Basin. EPA is hosting a one-day workshop on the “challenges of, need for, and benefits of” long-term stewardship of vapor intrusion exposures. EPA and Department of Energy staff will attend an industry-sponsored forum debating the role of methanol as a fuel option. And the agency is taking comment on Texas' plan for implementing federal greenhouse gas permit program.

Water Policy

EPA has until March 19 to convince a federal appellate court in Texas to delay a lower court's mandate to formally respond to environmentalists' petition seeking a determination on whether states in the Mississippi River Basin are adequately controlling nutrients.

The agency is concerned that if the mandate is not delayed, it will be forced to formally respond to the petition, clearing the way for litigation on the merits of its response and undercutting an appeal the agency hopes will allow it to narrow the Supreme Court's precedent in Massachusetts v. EPA that generally requires the agency to respond to petitions.

The scramble to convince the appellate panel comes after federal court judge Jay C. Zainey March 14 denied without comment EPA's request to stay his order in Gulf Restoration Network, et al. v. EPA, which requires the agency to respond formally to environmentalists' petition.

The petition, filed in 2008, asked the agency to find that state nutrient control programs in the Mississippi River Basin are inadequate, a finding that if granted would force the agency to step in and take action. EPA informally denied the petition, saying a regulatory approach was not the best use of its resources to address nutrient pollution.

But Zainey found in his 2013 ruling that the agency's informal response was inadequate and required the agency to respond formally by March 19. While the agency has appealed the ruling, officials are only belatedly asking Zainey and the U.S. Court of Appeals for the 5th Circuit to stay the mandate so the appeal can proceed.

Although environmentalists recently suggested that EPA could only require strict nutrient rules in six states, the agency is nevertheless fighting to overturn the lower court ruling. If the stay is not not granted, EPA fears it will moot its pending appeal, giving environmentalists the opportunity to sue on the merits and force the agency to regulate nutrient in a broad swath of the country.

“The injury to the EPA is particularly significant because the legal issues presented on appeal affect the agency's overall administration of the water quality standards program under the Clean Water Act,” EPA says in its brief to the appellate court.

While EPA's water quality standards program is on trial in the 5th Circuit, the Environmental Law Institute is hosting a March 19 eventthat will review a pending case in the 3rd Circuit that could set an important precedent for regulation of nutrients in the Mississippi Basin.

In the 3rd Circuit case, American Farm Bureau Federation (AFBF), et al. v. EPA, et al., farm, homebuilder and other groups are appealing a district court ruling that upheld the agency's total maximum daily load (TMDL) for the Chesapeake Bay. The industry groups are concerned that if upheld, the lower court ruling will grant the agency broad authority to force states to regulate nonpoint sources, even though the Clean Water Act bars such regulation.

But a group of Mississippi River Basin states is also concerned that if EPA's TMDL is upheld, it could set a precedent that would allow the agency to craft a multi-state TMDL for their states too. “If this TMDL is left to stand, other watersheds, including the Mississippi River Basin (which spans 31 States from Canada to the Gulf Coast), could be next," the states say in a recent amicus brief.

The ELI event -- which will also include former Bush EPA water office chief Ben Grumbles, now president of the U.S. Water Alliance -- will focus on two issues: the merits of EPA's TMDL requirements and “the challenges and benefits” of their implementation.

“While some see the new TMDLs as an important new exercise of authority by EPA and a key step forward in the rehabilitation of the Chesapeake Watershed, others view the new requirements as unduly onerous and, perhaps, beyond the scope of EPA's regulatory authority,” according to ELI's website for the event. “People on both sides of the debate recognize that the new TMDLs will require significant investments, including retrofits of local infrastructure and the stormwater drainage systems of DC and its neighboring cities and towns.”

Vapor Intrusion

EPA will host a March 18 workshop on long-term stewardship of vapor intrusion exposures, as part of the Soil, Water, Energy and Air conference taking place March 17-20 in San Diego, CA.

Vapor intrusion occurs when toxic vapors rise into buildings from underground contamination. The technical workshop will focus on scientific “observations” and evidence on the accessibility and predictability of vapor intrusion exposures, according to the agenda. Officials from EPA's Office of Research and Development, the Office of Resource Conservation and Recovery within the waste division, and the agency's Region I add IX will be giving presentations.

Region IX officials recently urged California state regulators to implement strict action levels and strengthened sampling strategies at certain Superfund sites in the San Francisco Bay area to protect against short-term exposures to the solvent trichloroethylene (TCE), measures that likely indicate how EPA will address TCE's short-term risks nationwide, according to an informed source.

The region also asked the regulators to adopt sampling strategies consistent with EPA's recent draft guidance for assessing and mitigating vapor intrusion risks from chlorinated solvents.

EPA's long-delayed guidance has prompted a fight among federal agencies and state regulators, in particular over whether EPA should reference Occupational Safety and Health Administration standards in the guidance, further complicating an issue industry has said should prompt EPA to withdraw and revise the guide.

Meanwhile, the Soil, Water, Energy and Air conference agendaincludes a host of other presentations on key issues include TCE; the environmental impact of nanotechnology; the water-energy “management challenge;” tracking indoor sources of benzene emissions; and more.

Methanol Fuel

EPA and Department of Energy staff, fuel industry officials and others will debate the role of methanol as a fuel source during the March 18 Methanol Policy Forum in Washington, D.C.

According to the event's website, officials will discuss a host of topics including the “resurgence” of the domestic methanol production industry, global initiatives to promote blending of methanol into the fuel mix, the prospects for methanol to boost U.S. energy independence, and advancing methanol fuel use in vehicles in the United States.

Methanol can be produced from hydrocarbon or renewable energy resources, such as natural gas or biomass, and industry advocates of methanol fuel are pushing EPA to take steps to promote its use. An energy security group called the Fuel Freedom Foundation -- led by Reagan-era EPA air chief Joseph Cannon -- is urging EPA to revise Clean Air Act engine anti-tampering rules in order to allow conversion of all light-duty vehicles to alternative fuel vehicles that can operate on methanol, as part of the group's bid to boost reliance on domestically produced methanol from shale gas and biomass rather than foreign oil.

The push to boost methanol's use as a fuel comes as industry groups are weighing options for challenging EPA's recently released final estimate of the noncancer health risks posed by methanol, such as a Data Quality Act suit or a challenge to any future regulation that relies on the assessment's risk values. The assessment generally retains the ingestion and inhalation risk levels EPA proposed in the controversial draft assessment issued in May -- estimates widely protested by industry.

It is unclear whether industry representatives at the upcoming forum will discuss the EPA risk assessment, but at least one agency official will be attending the meeting. Matt Brusstar, deputy director of EPA's National Vehicle and Fuel Emissions Laboratory, will take part in a discussion on “Unlocking Our Vehicles to Methanol,” according to the event's agenda.

The Methanol Institute, the Institute for the Analysis of Global Security and the U.S. Energy Security Council are hosting the forum, which is being held “against the backdrop of the shale gas revolution and a resurgence of domestic methanol production,” according to its website.

Clean Air Policy

EPA is slated to hold a March 18-23 workshop in Research Triangle Park, NC, aimed at boosting environmental justice advocates' ability to help community members get more effectively involved in the development of Clean Air Act programs, rules, and the permitting process.

The workshop could help advance former EPA Administrator Lisa Jackson's goal of bolstering the role that equity plays in the agency's decisionmaking process -- a policy priority that current agency chief Gina McCarthy has pledged to continue. According to the agency, the workshop “will focus on how participants can use existing training materials to tailor community-specific training programs and how they can engage effectively in EPA's rulemaking process, in state implementation of federal Clean Air programs, and in federal, state, and local air permitting processes.”

The event, sponsored by the EPA Office of Air Quality Planning and Standards Outreach and Information Division, will also include a “primer” on the Clean Air Act.

Meanwhile, the agency is taking comment through March 20 on Texas' long-delayed state implementation plan (SIP) for implementing the federal greenhouse gas (GHG) permitting program. Texas initially refused to adopt EPA's GHG permit program, saying it did not believe industrial facilities should be subject to Clean Air Act permits for their GHG emissions.

Texas' position prompted EPA to impose a federal implementation plan (FIP) through which it directly wrote GHG permits for facilities in the state, though Texas retained delegated air law authority for writing conventional air pollution permits. The state sued EPA over the FIP, but the U.S Court of Appeals for the District of Columbia Circuit in a July 26 ruling in State of Texas v. EPA, upheld the federal permit program. But it delayed the deadline for Texas to seek rehearing until 30 days after the Supreme Court rules in related litigation over EPA's permit rules for GHGs.

While that deadline is pending, the Texas legislature approved the adoption of the federal GHG permit program. Texas' Commission on Environmental Quality then crafted and submitted to EPA a SIP for implementing the program, which would replace the FIP.

If EPA finalizes its proposal to approve the SIP, it is expected to speed permitting and ease industry burdens though it will likely antagonize environmentalists because unlike federal permits the Texas process will not require examination of "cross-cutting" issues such as compliance with the Endangered Species Act or federal law on historical or cultural preservation, an industry source has said.

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