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The Week Ahead

Shutdown Postpones EPA Meetings But Agency Lawyers Slated To Defend Key Decisions

Posted: October 7, 2013

The ongoing government shutdown has forced the postponement of a host of planned EPA meetings, but government lawyers are being called into court to defend several agency decisions -- despite their requests to delay oral arguments during the shutdown. The Supreme Court justices are expected to resume their discussion of whether to review the appellate ruling upholding EPA's greenhouse gas program and consider whether to review an additional suit dealing with Clean Water Act rules.

EPA Shutdown

The ongoing government shutdown, which appears unlikely to be resolved anytime soon, has shuttered a host of EPA activities, roiled agency plans and forced postponement of dozens of meetings that were scheduled after Oct. 1 when the shutdown began.

The National Drinking Water Advisory Council (NDWAC), for example, was slated to meet Oct. 9-10 to discuss EPA rules to implement the Reduction of Lead in Drinking Water Act, which is slated to take effect in January 2014.

EPA's pesticide office was scheduled to hold a meeting Oct. 8on exposure modeling. Among the issues on the agenda are discussion of an EPA Guidance on Modeling Offsite Deposition of Pesticides via Spray Drift.

The guidance could help EPA address growing calls to assess and regulate spray drift from pesticides.

Also likely to be postponed is the first meeting of the National Academy of Sciences panel that will provide EPA with advice on how it can better asses risks of alternatives to existing chemicals, which is slated to take place Oct. 10-11.

The NAS says in a note on its site that if EPA is still shuttered on Oct. 8, the chemical alternatives meeting will not go ahead as planned.

The panel could help EPA's Design for the Environment program, which has struggled to assess risks posed by bisphenol A and other substances.

Litigation Continues

While several planned EPA meetings are not going ahead, agency lawyers are being forced to appear before several appellate courts to participate in previously scheduled oral arguments -- despite their requests to postpone action.

The U.S. Court of Appeals for the District of Columbia Circuit has rejected agency efforts to delay Oct. 10 oral arguments in Center for Biological Diversity (CBD), et al. v. EPA, in which environmentalists are challenging the agency's decision not to set a first-time joint national ambient air quality standard (NAAQS) regulating nitrogen oxides (NOx) and sulfur oxides (SOx) based on a measure of waterbody acidification.

The court later issued a similar order rejecting the Department of Justice's request to delay Oct. 24 arguments in Natural Resources Defense Council (NRDC), et al. v. EPA, et al. -- consolidated litigation over EPA's Portland cement sector maximum achievable control technology (MACT) air toxics rule. Neither order explained the court's decision.

The U.S. Court of Appeals for the 9th Circuit is also slated to proceed with Oct. 8 oral arguments in Sierra Club v. EPA, where environmentalists are challenging the agency's “grandfathering” authority to allow a prevention of significant deterioration (PSD) permit for the proposed Avenal Power Center in California to ignore new greenhouse gas (GHG) and stricter ambient air quality limits that took effect during a prolonged permitting period.

The suit says EPA's first-of-its-kind claim that it has discretion to grandfather a planned natural gas plant from permit requirements in effect is unlawful. Environmentalists filed the suit after Avenal sued EPA for violating a Clean Air Act mandate to issue or deny PSD permits within 12 months of receiving complete permit applications. Avenal argued that the agency's delay in its permit decision was forcing it to repeatedly meet updated air quality limits. EPA Administrator Gina McCarthy, then head of the air office, signed an unusual legal declaration in the Avenal v. EPA case in the U.S. District Court for the District of Columbia in early 2011 authorizing the exemption, where she also noted that it would apply to a handful of other plants. However, EPA never applied the exemption to any other permit.

Environmentalists challenged the grandfathering as unlawful, first before EPA's Environmental Appeals Board, and then again in the 9th Circuit. Activists last month also filed a second suit with the same name in the 9th Circuit challenging EPA's 18 month extension of the Avenal PSD permit.

Most recently in the grandfathering case, EPA submitted an Oct. 1 notice of supplemental authority citing two other “pertinent” 9th Circuit decisions finding that EPA has discretion in issuing PSD permits for Shell to conduct exploratory drilling in the Alaskan Arctic. “In those cases, the Court held that EPA's authority to promulgate regulations and grant air permits exercised 'through a formal proces that included . . . public notice and comment' was entitled to deference.” Here, “Petitioners have argued that EPA's interpretation of its authority to grandfather the air permit issued to Avenal Power Center from certain requirements is not entitled to deference because the interpretation was not the product of formal rulemaking, while EPA has argued that its interpretation is entitled to deference in part because it was the product of a 'deliberative permitting proceeding that included notice and comment,'” the notice says.

In other litigation news, the Supreme Court is slated Oct. 11 to resume consideration of whether to review a ruling upholding EPA's greenhouse gas program and another that tests the legality of the agency's Clean Water Act rule exempting transfers of water from National Pollutant Discharge Elimination System permits.

The court first considered the nine GHG petitions at its Sept. 30 conference but has so far given no indication of how the justices plan to proceed.

Comment Deadlines

EPA also appears to have maintained comment deadlines that were set before the shutdown began, including those for its effluent limitations guideline plan, which are due Oct. 7, its proposed rule setting standards for formaldehyde in wood products, which are due Oct. 9, and its proposed risk assessment of ethylene oxide, which are due Oct. 11.

Other Events

EPA may be largely shuttered, but many other groups are continuing with plans to hold meetings related to the agency's policies.

Keller Heckman is hosting a chemical control law seminar Oct. 7-8. Topics include both EPA's current Toxic Substances Control Act program as well as planned reforms.

The Bipartisan Policy Center is holding an Oct. 8 seminar “on whether natural gas and low-carbon energy technologies can play complementary roles in transitioning the global economy to a cleaner, more sustainable trajectory.”

National Journal is holding an Oct. 9 event titled, “Biofuel Mandate: Defend, Reform or Repeal?” Speakers include Reps. Steve King (R-IA) and Peter Welch (D-VT).

The House Natural Resources Committee's energy and mineral resources committee will hold an Oct. 10 hearing titled “EPA vs. American Mining Jobs: The Obama Administration’s Regulatory Assault on the Economy.”

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