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The Week Ahead

Supreme Court Weighs New Environmental Suits, EPA Grapples With Perchlorate

Posted: September 24, 2012

With Congress having adjourned -- likely until after the election -- environmental policy developments return to the courts and EPA.

The Supreme Court's new term does not begin until next month but the justices are meeting this week to decide whether to review a case dealing with EPA's imposition of federal sulfur standards in Montana. Other federal courts are considering EPA policies dealing with how to calculate new source air permits and the agency's deadline for crafting new discharge limits for power plants.

EPA's Science Advisory Board reviews a number of key issues this week, including proposals for how to calculate health protection levels for perchlorate in drinking water, how to adopt computational toxicology techniques and how to assess the risks of asbestos.

In Court

The Supreme Court justices do not begin hearing cases for their 2012-13 term until the start of October but the justices are slated to meet this week to decide whether they will review an appellate ruling upholding EPA's imposition of federal sulfur standards in Montana.

A Montana chemical company, backed by the American Petroleum Institute, is asking the high court to overturn a ruling from the U.S. Court of Appeals for the 9th Circuit which backed EPA's adoption of a federal implementation plan to control sulfur emissions.

EPA in a recent brief urged the court to decline review and let the 9th Circuit's ruling stand, while rejecting claims the ruling allows “breath-taking . . . federal intrusion” on states.

The justices are expected to announced whether they will review the case, Montana Sulphur & Chemical Company v. EPA, in early October.

The high court is also slated to soon decide whether to hear a case on the availability of Superfund law cost recovery mechanisms for private parties who have entered into consent decrees with the government for cleanup response costs. The justices are slated to decide Oct. 5 whether to review Solutia Inc. and Pharmacia Corp. v. McWane, Inc. et al. -- a case that could return the justices to the controversial issue of how liable parties that have voluntarily agreed to clean up contamination can recoup funds from non-settling parties -- though there is no circuit split on the issue before the court.

In addition to the two pending cases, the justices have already agreed to review two other environmental issues in the coming term: whether permits are needed to regulate stormwater runoff from logging roads (Decker v. Northwest Environmental Defense Center (NEDC) and Georgia-Pacific West v. NEDC) and when permits are needed for water transfers (Los Angeles Flood Control District v. Natural Resources Defense Council).

The Environmental Law Institute holds its annual preview of the court's upcoming term Sept. 25 in Cambridge, MA, with Harvard Law professors Laurence Tribe and Richard Lazarus, along with the institute's John Cruden. Topics include the potential significance of pending cases, as well as thepotential significance for environmental lawyers of the Court's landmark decision in National Federation of Independent Business v. Sebelius upholding President Obama's health care law.

In other court news, a federal appellate court held oral arguments Sept. 24 in a long-running suit brought by Sierra Club and others alleging that EPA is violating the Clean Air Act through its use of alternative measures, such as "significant impact levels" (SILs) and significant monitoring concentrations, when crafting new source permits in pristine areas.

On the Clean Water Act front, EPA is slated to file a brief defending its settlement with environmentalists setting deadlines for its upcoming revised discharge standards for power plants. Electric utility and other industry groups are challenging the deadline in a case that could test private parties' ability to intervene in so-called "sue-and-settle" cases, an issue that industry and some lawmakers are seeking to address in pending legislation easing private parties' ability to intervene in such cases.

At EPA

EPA's science advisors will be meeting Sept. 25 to put the finishing touches on their draft report that calls for the agency to use a novel modeling approach to calculate its drinking water health goals for perchlorate, the rocket fuel ingredient and ubiquitous drinking water contaminant -- rather than the formula EPA has traditionally used, which had worried industry and drinking water utilities.

The health goal that EPA is slated to propose early next year will form the basis for an enforceable drinking water standard for the chemical, the first since Congress amended the law in 1996. But initial estimates that that agency unveiled last week suggest that complying with any standard may be costly for many utilities.

Several other EPA science advisory panels are also meeting this week. On Sept. 24, a Science Advisory Board (SAB) panel is meeting to review draft advice to EPA on how to adopt use of computational toxicology techniques.

And on Sept. 25, the chartered SAB will meet to review a panel report on EPA's assessment of the risks posed by Libby asbestos. EPA's research office is said to be "wary" of calls by some SAB panelists to model risks from long-term exposures from other forms of asbestos, with EPA cautioning the review is not intended to apply to other asbestos types.

EPA is taking comment through Sept. 24 on its second batch of proposed uniform air toxics standards, which are intended to set consistent standards for equipment leaks, storage vessels and other operations across refining, chemical and other manufacturing sectors.

While EPA says the uniform approach is intended to streamline regulatory requirements, industry groups say EPA lacks authority under the Clean Air Act for the approach and that it upends the traditional process for setting air rules.

Comments are due Sept. 24 on whether EPA should approve Maryland's low emissions vehicle program. The action comes as EPA recently held two days of public hearings on whether to waive the Clean Air Act to allow California to implement its proposed clean car program, which could become a model for EPA's pending vehicle rules.

Environmentalists are expected to strongly criticize EPA's recently proposed human health risk assessment framework when they submit comments ahead of a Sept. 28 deadline. EPA's framework is aimed at increasing the utility of agency risk assessments -- the first formal step toward implementing recommendations in a seminal 2009 National Academy of Sciences (NAS) report on improving risk assessments. But environmentalists have already raised concerns over what they see as the agency's efforts to consider the cost-benefit implication of its assessments.

GreenGov, the Obama administration initiative to adopt sustainable approaches across the federal government, is holding its annual symposium Sept. 24 -26. Speakers include Nancy Sutley, chair of the White House Council on Environmental Quality, Navy Secretary Ray Mabus and EPA Administrator Lisa Jackson.

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