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The Week Ahead

EPA To Decide On CSAPR Appeal, Push For Environment Questions At Presidential Debate

Posted: October 1, 2012

The courts are a major focus for environmental policy this week, with EPA facing an Oct. 4 deadline to decide whether to challenge a federal appeals court ruling that vacated its Cross-State Air Pollution Rule (CSAPR) utility emissions trading program. The Supreme Court, which meets for its new term Oct. 1, is also slated to consider several core environmental cases.

President Barack Obama and Republican challenger Mitt Romney are set to face off at their first of three debates Oct. 3 at the University of Denver, CO. The debate will focus on domestic policy, and the Environmental Law Institute (ELI) is pitching several energy and environmental questions for the event, including asking the candidates how they will tackle climate change.

EPA will reach an important milestone for its proposed rule specifying that discharges from logging roads are exempt from Clean Water Act (CWA) permit requirements. The agency is taking comment through Oct. 4 on the rule, which would allow EPA to retain oversight under a section of the CWA that allows use of voluntary efforts and best management practices.

In Court

EPA is due to make a decision Oct. 4 on whether to appeal the U.S. Court of Appeals for the District of Columbia Circuit's ruling that vacated CSAPR -- an emissions trading program designed to cut interstate transport of air pollution generated by power plants.

The court in a 2-1 ruling found EPA exceeded its Clean Air Act authority in how it created the cap-and-trade program and imposed that trading regime on states.

But the dissenting judge outlined several reasons for why EPA's approach was consistent with the air law and also a 2008 ruling by the same court that found flaws in a Bush-era trading program, the Clean Air Interstate Rule (CAIR). CSAPR was the Obama administration's replacement for CAIR. The dissent was seen as laying the groundwork for an EPA appeal.

EPA officials have said the agency continues to weigh its options, which include asking the same three-judge panel to rehear its decision, or for the full court to rehear the case.

The Supreme Court returns for a new term Oct. 1, and is slated to consider several cases that could set important new precedents for Superfund cost recovery and Clean Water Act (CWA) policies.

The high court delayed until Oct. 5 its consideration of a petition of certiorari by chemical manufacturers to review the availability of Superfund cost recovery mechanisms for private parties who have entered into consent decrees with the government for cleanup response costs. The Supreme Court was originally scheduled to confer Sept. 24 on whether to accept a petition in Solutia, et al. v. McWane, Inc., et al. But the court rescheduled it to Oct. 5.

The high court will also focus on CWA policies, including its review in Georgia-Pacific West, et al. v. Northwest Environmental Defense Center, et al., of a 2010 ruling from the U.S. Court of Appeals for the 9th Circuit which ruled that the CWA classifies stormwater discharges from logging roads as point sources subject to discharge permits.

Logging industry officials and some states have raised concerns that the case could extend citizen suits' reach to target EPA water regulations and federal and state permits, despite an explicit bar on such suits in the water law. Many legal experts counter that the high court will uphold the underlying appellate decision on procedural issues that are driving industry's concerns -- though they say that environmentalists may be on more solid legal footing on the merits.

The Supreme Court could issue another possibly precedent-setting ruling in the pending case Los Angeles County Flood Control District v. Natural Resources Defense Council, which deals with thetransfer of waters between channelized and unimproved riverbeds in a municipal storm sewer. The case is set for oral argument Dec. 4.

Meanwhile, Oct. 1 is the court-ordered deadline for EPA to decide on whether to grant environmentalists' petition asking it to scrap provisions in 39 states' air plans exempting emissions during startup, shutdown and malfunction (SSM) events from counting toward compliance with federal air standards. Environmentalists say the agency needs to scrap the SSM provisions in order to comply with a previous D.C. Circuit ruling vacating the policy.

EPA has been taking steps to remove SSM exemptions from state air plans and in its rulemakings and replace them with an “affirmative defense,” in which regulators do not pursue Clean Air Act civil penalties for emissions that exceed permitted levels if a company can show that the reason for the excess pollution meets the agency's "narrow" definition of malfunction.

Environmentalists say EPA needs to address a host of states that still have some form of SSM exemption, and they also question the legality of the affirmative defense policy. They sued EPA in the U.S. District Court for the Northern District of California to force a response to their petition asking for the removal of the exemptions from states' air plans. EPA originally agreed to decide by Aug. 31 but won an agreement to extend that deadline to Oct. 1.

The Department of Health and Human Services (HHS) is due to file a reply brief Oct. 1 in a Freedom of Information Act (FOIA) lawsuit brought by the American Chemistry Council (ACC). ACC is trying to force the department to hand over documents concerning the listing of formaldehyde in the Report on Carcinogens that the group alleges HHS has failed to produce in violation of FOIA.

At EPA

While the Supreme Court prepares to hear litigation over EPA's logging road policies for CWA permits, the agency is taking comment through Oct. 4 on a related permitting rule. EPA says it intends to clarify its Phase I stormwater regulations under section 402(p)(6) of the CWA to explicitly exclude silvicultural activities from the industrial stormwater activities covered by the agency's Phase I stormwater rules. The proposed rule excepts rock crushing, gravel washing, log sorting and log storage facilities from the silvicultural exemption, but those activities were already subject to Phase I permitting requirements, according to the proposal.

EPA's National Drinking Water Advisory Council is holding a meeting Oct. 4-5 in Chicago. According to a Federal Register notice announcing the meeting, the council will discuss various issues associated with drinking water protection and public water systems.

A primary focus of the meeting will be consultation between the council -- comprised of members of the public, state and local agencies, and private groups -- and EPA over the agency's development of a Safe Drinking Water Act national primary drinking water rule for perchlorate.

EPA plans to hold an Oct. 1 webinar to hear stakeholder comments on potential approaches for drinking water utilities to provide mandatory consumer confidence reports (CCR) via electronic delivery, rather than the existing approach of mailing the reports.

Top EPA officials will also be participating in conventions in D.C. and elsewhere, with EPA Administrator Lisa Jackson giving the Oct. 1 keynote address at the Water Environment Federation's Annual Technical Exhibition and Conference taking place in New Orleans.

According to an EPA press release, Jackson will speak “on the progress made in ensuring clean water and emerging opportunities for innovation in water infrastructure.” The announcement also notes that 2012 marks the 40th anniversary of the CWA.

EPA's Trey Lewis will also discuss the law's anniversary in a presentation titled “Telling the Story of Water: The Clean Water Act at 40” that Lewis is slated to give on the opening day of the Oct. 3-5 WaterSmart Innovations Conference and Exposition in Las Vegas.

Several EPA officials involved in concentrated animal feeding operation (CAFO) policies will participate in this year's “CAFO Roundtable” taking place Oct. 2-4 in Annapolis, MD. Among the topics on the agenda is EPA's CAFO data collection effort, a discussion on handling CAFO discharges, and National Pollutant Discharge Elimination System permits for CAFOs.

Meanwhile, Henry Schuver of EPA's Office of Resource Conservation and Recovery (ORCR) within the Office of Solid Waste and Emergency Response will attend the Air & Waste Management Association's Oct. 3-4 vapor intrusion conference in Denver, CO. Schuver will give a presentation titled “Monitored-Natural or Engineered Vapor Attenuation?” EPA is working on guidance for assessing vapor intrusion risk from chlorinated solvents and is calling for long-term monitoring of contaminated sites to account for the unpredictable movement of toxic vapors to indoor air.

EPA Office of Atmospheric Programs Director Sarah Dunham and Susan Wickwire of the Office of Air and Radiation's Climate Protection Partnerships Division are among the agency officials slated to participate at an Oct. 3-4 U.S. Clean Heat & Power Association meeting in Washington, D.C., to discuss prospects for combined heat and power (CHP).CHP uses the waste heat and gas of manufacturing processes to produce electricity for industrial purposes and to sell to the grid. The resource is seen as a cost effective means of developing new, cleaner power resources.

The “Big Deal” annual brownfields conferencetakes place Oct. 3-4 in Chicago, and will include remarks by Patricia Overmeyer, land revitalization coordinator in EPA's Office of Brownfields and Land Revitalization, on a panel discussion of “responsibilities and strategies for both the public and private sector players involved a brownfield transaction,” according to the agenda.

EPA's Good Neighbor Environmental Board (GNEB) is holding an Oct. 2 conference call to discuss and approve GNEB's Fifteenth Report, which focuses on water infrastructure issues in the U.S.-Mexico border region. GNEB is an independent federal advisory committee that advises the president and Congress on good neighbor practices along the U.S. border with Mexico, focusing on “environmental infrastructure needs” within the U.S. states contiguous to Mexico.

The agency will hold an Oct. 4 webinaron “Water Quality Standards 101,” giving tribal officials and others a chance to learn more about EPA's approach to the standards.

Also On The Agenda

President Obama and Republican challenger Mitt Romney meet for their first of three presidential debates Oct. 3 in Denver, CO. Journalist Jim Lehrer, moderating the debate, Sept. 19 announced the topics for the first debate and none explicitly include energy or environment. The subject matter includes a heavy emphasis on the economy along with health care, the role of government and governing -- but environmentalists continue to push for the debate to include energy questions.

The Environmental Law Institute is pitching a list of 12 environment questions it wants asked at the debate, including, “How urgent is the problem posed by emissions of greenhouse gases?” “How will you prepare the country for a changing climate?,” “How will you articulate and, most importantly, secure our energy future?,” and “How will you create an honest, informed dialogue about our environmental and energy priorities? Are economic and environmental goals in conflict.”

The National Association of Clean Air Agencies, representing many state and local air regulators, started its fall membership meeting Sept. 30 in Stevenson, WA. The group will continue the event through Oct. 3 focusing on a wide range of Clean Air Act policies, including the latest on EPA's national ambient air quality standards and fallout from the vacatur of CSAPR.

Other events Inside EPA is tracking this week include the Oct. 1-2 Carbon Forum North America in Washington, D.C., focusing on climate policies including regulating carbon under the Clean Air Act, and the prospects for large-scale carbon capture and sequestration.

Also taking place: an Oct. 2-3 Aviation Biofuels Development conference in D.C. focusing on the use of biofuels in the aviation sector, and an Oct. 4-5 “Restoration of Our Rivers” conference in Bentonville, AR, giving a national and regional perspective on urban stormwater.

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