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The Week Ahead

After Shutdown, EPA Resumes Work On GHG Limits, Weighs Cybersecurity Rules

Posted: October 21, 2013

With the partial government shutdown now over, EPA is scrambling to resume its delayed policy work on greenhouse gases and other pending issues. The agency is also poised to launch a formal 90-day process for determining whether it has sufficient authority to regulate cybersecurity concerns in the water utility sector.

Climate Change

With EPA and the rest of the government getting back to work following the partial shutdown, debate and discussion over the administration's greenhouse gas (GHG) rules are resuming full tilt, including whether the Supreme Court's recent decision to review the agency's GHG permit rules could undercut the agency's rulemaking effort.

EPA is moving ahead with plans for two previously scheduled listening sessionsOct. 23 in New York City and Atlanta to hear initial public comments on its plans to regulate GHG emissions from existing power plants.

The agency was forced to postpone until next month similar sessions -- planned for Oct. 15 in Boston and Oct. 18 in Philadelphia -- due to the government shutdown.

Agency and other officials are also expected to discuss their pending GHG rules at several other meetings planned for this week.

EPA Administrator Gina McCarthy is slated to speak, together with former Administrator Carol Browner, at an Oct. 24 event hosted by the Center for American Progress on the occasion of its 10th anniversary. Former Vice President Al Gore and other Democratic luminaries are also scheduled to address the event.

Joe Goffman, McCarthy's senior counselor, is slated to address a session on President Obama's Climate Action Plan -- of which EPA's rules are the centerpiece -- at an Oct. 23 session at the annual Energy Bar Association meeting.

And the annual Air Quality IX conference -- hosted by the Energy and Environmental Research Center -- includes several sessions on options for carbon capture.

Cybersecurity/Data

EPA is slated to begin a formal 90-day process for determining whether it has sufficient regulatory authority to address potential cybersecurity risks in the water sector, a move that is already drawing concern from utility officials since EPA currently has no rules governing cybersecurity.

Under executive order 13636, the National Institute for Standards & Technology (NIST) is required to develop a framework for guiding agencies as they assess whether critical infrastructure sectors are adequately secured against potential cyber attacks. NIST is expected to release the framework by Oct. 22.

The framework will, among other things, "incorporate voluntary consensus standards and industry best practices to the fullest extent possible," and provide a "prioritized, flexible, repeatable, performance-based, and cost-effective approach, including information security measures and controls, to help owners and operators of critical infrastructure identify, assess and manage cyber risk," the order states.

The order also notes that the framework will include "guidance" for measuring the performance of agencies and their regulated sectors (such as EPA's water and wastewater sectors) in implementing the framework.

According to the order, EPA and other agencies responsible for regulating critical infrastructure have 90 days from the time the framework is proposed to “determine if current cybersecurity regulatory

requirements are sufficient given current and projected risks.” If agencies find they lack adequate authority, they then have an additional 90 days to propose new requirements.

While EPA has called for NIST to limit any cybersecurity burdens its plan could place on the water sector given large unfunded needs to replace conventional water infrastructure, utility officials are nevertheless concerned that the agency could craft new regulatory requirements.

Speaking of cybersecurity and data requirements, the Environmental Law Institute is hosting an Oct. 22 event titled Big Data: A Game Changer for Environmental Managers, Advocates and Regulators?

“Many now see the potential to harness big data to achieve environmental objectives, such as increasing energy efficiency, selecting the most effective sustainability investments, and mapping environmental degradation,” the institute says.

Speakers include EPA enforcement chief Cynthia Giles, Gary Guzy, deputy director of the White House Council on Environmental Quality, Karen Bassett, chief deputy director of the Arkansas Department of Environmental Quality and Alexandra Dapolito Dunn, executive director of the Association of Clean Water Administrators.

The meeting coincides with the institute's annual Miriam Hamilton Keare Policy Forum, which this year is entitled U.S. Agriculture and the Global Environment. According to ELI, this year's forum “will not only consider the potential environmental costs and benefits of the [Farm Bill], but also the effects on consumers and the 47 million Americans who depend on food assistance.”

In Court

The U.S. Court of Appeals for the District of Columbia Circuit is slated to hear oral arguments Oct. 24 in a suit that tests the adequacy -- and timing -- of the agency air toxics rules for the cement sector.

Environmentalists are alleging in Sierra Club, et al. v. EPA, et al., that the agency unlawfully weakened its cement maximum achievable control technology (MACT) air toxics rule and then delayed the rule's compliance date by two years -- a result EPA says was driven by a prior court order.

EPA first issued a cement MACT about three years ago though industry and environmentalists filed suit over that rule, and the D.C. Circuit in a 2011 decision, Portland Cement Association (PCA) v. EPA, remanded it to the agency. The court said that the agency erred by using data from cement kilns regulated under a different air toxics rule, a change that weakened the particulate matter (PM) limit from 0.04 pounds per ton (lbs/ton) of clinker to 0.05 lbs/ton.

Following the decision, EPA revised the rule to meet the terms of the remand and issued an updated cement MACT that further softened the PM limits to 0.07 lbs/ton and included the two-year compliance extension, triggering the lawsuit from environmentalists who say the Clean Air Act requires a more stringent rule.

But environmentalists sued, alleging that the agency went beyond what the court ordered in PCA and voluntarily weakened the emissions limit further so the rule would be "cost effective," despite an air law mandate to provide the "maximum degree of reductions" achievable that takes “into consideration the cost.”

EPA has argued that the new 0.07 lbs/ton emissions limit is actually equivalent to the 0.05 lbs/ton limit caused by the remand because of changes in how frequently sources must conduct emissions testing. EPA when it reissued the cement MACT decided to switch from continuous emissions testing to an annual stack test, then used a "standard statistical equation" to convert the earlier limit to 0.07 lbs/ton.

The D.C. Circuit is also slated to hear Oct. 22 arguments in Daimler Trucks North America LLC v et al. v. EPA, the third of three suits challenging the agency's waivers that allowed rival manufacturer Navistar to sell diesel engines that failed to meet stringent emission limits. Though Daimler and other manufacturers have succeeded in having the D.C. Circuit scrapa fast-tracked "interim" rule allowing the waivers, the court last week rejectedas moot their suit that challenged waivers issued under the interim rule.

And EPA is expected to formally ask the D.C. Circuit in a brief due Oct. 25 to dismiss an energy sector challenge to its application of a ruling vacating a key part of its "aggregation" policy for strict permitting of emissions from dispersed operations, arguing that the memo is not "final agency action" subject to judicial review.

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