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The Week Ahead

Western Haze Efforts Face Public Scrutiny; Whitfield Leads CAA Forum

Posted: July 30, 2012

EPA’s efforts to craft federal haze plans for multiple states have kicked up fierce opposition in the West and from business groups -- and the public weighs in this week at a meeting in Phoenix on EPA's proposed plan for Arizona and in comments on the proposed federal plan for Wyoming.

And with only days to go until Congress scatters for summer recess and the national party conventions, Rep. Ed Whitfield’s (R-KY) two-day “forum” on the Clean Air Act will be closely watched by environmentalists and business groups as Republicans prepare for a major CAA reform push next year.

Coming Up . . .

But that’s not the only environmental action at EPA and on Capitol Hill: EPA continues work on a controversial set of toxics rules that could set a precedent for how the agency regulates industrial chemicals in the future even as the issue heats up in Congress. The agency is also slated to receive comments on its decision to reconsider a ban for a major fluoride-based pesticide.

The House votes on liability protections for utilities that operate plants in violation of the Clean Air Act in order to maintain reliability; the House Transportation & Infrastructure Committee is expected to move on several controversial Clean Water Act bills; and the Senate environment committee will try to put climate change back in the spotlight this week. The House also plans to vote on a one-year Farm Bill extending existing conservation and fuels programs.

Overshadowing these policy debates, congressional leaders are still working on a deal to avoid a government shutdown when the fiscal year closes Sept. 30, but no vote is expected this week. Leaders of both parties want to extend funding into next year -- and avoid having to contend with annual spending bills for EPA and other agencies in the lame-duck session expected after the elections. They’ll have plenty of other issues to worry about in November and December, including the automatic spending cuts that will hit EPA, the Pentagon and the rest of the federal government in the absence of a broader budget agreement.

Here’s more on the upcoming agenda at EPA, in Congress and elsewhere:

At EPA

EPA conducts a public hearing in Phoenix July 31 on the proposed federal implementation plan (FIP) for Arizona to reduce haze in that state. And comments are due Aug. 3 on the proposed Wyoming haze FIP.

The agency’s haze program is intended to reduce pollution and improve visibility in national parks and wilderness areas. But it is far behind schedule and EPA has entered into various consent decrees with environmentalists as it seeks to catch up. Those, in turn, have contributed to EPA’s rejection of state plans dealing with haze and the development of federal plans instead, which has triggered a backlash on Capitol Hill.

The House last week passed legislation that would curb EPA’s authority to enter into such consent decrees, although the legislation is unlikely to advance in the Senate this year.

Congressional efforts to reform the Toxic Substances Control Act (TSCA) face complications in the Senate, even though the environment committee advanced a major reform measure. While Congress struggles, EPA is continuing its efforts to expand its oversight of industrial chemicals using existing authorities. Comments are due July 31 on EPA’s significant new use rule (SNUR) for polybrominated diphenyl ethers (PBDEs), one of a series of TSCA rules where the agency is seeking to overcome limitations in current law and one that has captured congressional attention.

The comment period closes July 30 on issues related to EPA’s reconsideration of its controversial proposal to effectively ban the use of sulfuryl fluoride in pesticides. The proposed withdrawal of the tolerance for the chemical has provoked concerns from industry, which questions whether such a move is lawful, as well as from environmentalists who fear even more dangerous chemicals may be used in place of sulfuryl fluoride.

Comments are due Aug. 2 on EPA’s proposed approval of the West Virginia and Delaware plans for limiting air emissions of lead. EPA faces an environmentalist lawsuit over its handling of state implementation plans for lead in 34 other states.

The National Advisory Council for Environmental Policy and Technology meets Aug. 2-3 at EPA headquarters to discuss how the agency can incorporate sustainability into its policymaking process. EPA in May issued a roadmap designed to promote sustainability through technology.

On Capitol Hill

Rep. Ed Whitfield’s (R-KY) initiative to re-examine the Clean Air Act may be the only path left for industry groups after recent court losses on ambient air standards. Whitfield, who chairs the Energy & Commerce energy and power subcommittee, is holding sessions July 31 and Aug. 2, and will hear from state officials on their relationship with EPA in implementing the air act.

Whitfield is setting the stage for a broader look at the Clean Air Act next year and is likely to begin crafting reform legislation early in 2013. The fate of such legislation depends on which party controls the White House, the House and the Senate. A GOP-controlled House is likely to get the process rolling in any event. But even that won’t be simple: Two Energy & Commerce subcommittees will have a say on the legislation, as will the Transportation & Infrastructure and Ways & Means committees, and perhaps others.

In other action, the House votes on H.R. 4273, a bill by Rep. Pete Olson (R-TX) that would shield utilities from liability if they operate a plant under a Department of Energy must-run order, but violate air act standards by doing so. GOP leaders will hold the vote Wednesday at the earliest under suspension of the rules, a process usually reserved for non-controversial items that must win a two-thirds majority to pass. It was unclear at presstime whether Republicans would agree to make changes to the bill demanded by Democrats.

The Transportation & Infrastructure Committee this week is expected to mark up several bills that would weaken EPA’s Clean Water Act enforcement authority. Those measures ultimately could be attached to the Farm Bill or some other measure on the House floor.

The bills include: H.R. 4278, by Reps. Robert Hurt (R-VA) and Jason Altmire (D-PA), which would limit EPA's ability to require CWA section 404 dredge-and-fill permits for projects affecting areas that were previously exempt from the law; H.R. 5691, a bill by Shelley Moore Capito (R-WV) that would prevent EPA from using aircraft to enforce CWA violations on agricultural land; and H.R. 2541, a bill by Rep. Jaime Herrera-Beutler (R-WA) that would amend the CWA to explicitly exempt silvicultural activities from permitting requirements.

The Energy & Commerce Committee will mark up several bills Aug. 1 with EPA implications, including H.R. 6190, which would give asthma patients access to a drug banned under Title VI of the Clean Air Act; H.R. 6194, which directs EPA to seek an exemption for a crop fumigant banned under the Montreal Protocol; and S. 710, which seeks to create an electronic tracking system for hazardous waste shipments. The panel will hear opening statements on July 31.

Whitfield’s Energy & Commerce subcommittee will also host an Aug. 2 hearing on the Republicans’ “American Energy Initiative,” focusing this time on how energy development on public lands compares to that on private property. Republicans say the nation’s oil and gas boom has occurred largely on private property, while charging that the Obama administration has bottled up development on public lands and waters.

One issue that may get some play is EPA's proposed permit setting strict new discharge controls for offshore drilling, a proposal that the industry says could hamper its ability to comply with safety requirements put in place following the Deepwater Horizon catastrophe in the Gulf of Mexico.

Obama supporters say the administration has provided unparalleled access to development, and that data showing a downturn in production on federal property is due to the moratorium on drilling in the Gulf following the BP spill.

The House Oversight Committee’s regulatory affairs panel holds a field hearing July 31 in St. Clairsville, OH, to discuss the impact of EPA rules on the coal economy. “This hearing is about letting the EPA know how their agenda has impacted jobs and hurt the local economy,” subcommittee Chairman Jim Jordan (R-OH) said in a statement. EPA’s regional administrator has been invited to testify.

In the Senate, Environment & Public Works Committee Chairman Barbara Boxer (D-CA) will hold an Aug. 1 hearing on climate change science and adaptation, which may provide Democrats with a new opportunity to defend EPA's greenhouse gas rules.

The Senate Finance Committee holds a hearing on taxation of business entities as it builds toward a broad tax reform effort that could begin later this year. Tax reform could have major implications for energy companies, in particular. The full Senate voted last week to extend the Bush-era tax cuts for families making up to $250,000, but steered clear of business tax issues; the House is expected to vote this week to extend the Bush tax cuts for all taxpayers and to establish a fast-track process for tax reform next year.

Also On The Agenda

The Environmental Law Institute holds a conference call July 31 to examine whether the Supreme Court’s recent health care decision has implications for environmental laws. Among the questions posed by ELI: “Will the Spending Clause ruling have consequences for the Clean Air Act or other environmental laws? Could the opinions on the Commerce Clause fuel new challenges to the scope of existing environmental laws, such as the [Endangered Species Act]?”

The state of Texas already is pointing to the health care ruling in its court challenge of EPA’s takeover of the state’s greenhouse gas permitting authority.

Speaking of the Lone Star State, the Texas bar association holds its annual Environmental Superconference Aug. 1-3 in Austin.

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