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The Week Ahead

Top EPA, DOE Nominees Face Confirmation Hearings; Court Weighs EPA Biomass, Lead Rules

Posted: April 8, 2013

President Obama's nominees to lead EPA and the Department of Energy are facing separate confirmation hearings before relevant Senate committees later this week. A key federal appellate court is hearing arguments in separate suits over EPA's short-term permitting exemption for greenhouse gases from biomass sources and the agency's lead smelter rule.

In Congress

Lawmakers are returning from their spring break with a full energy and environmental policy agenda. In the Senate, the Environment and Public Works Committee is slated to hold an April 11 confirmation hearing for Gina McCarthy to lead EPA.

Currently the agency's air chief, McCarthy is expected to be confirmed. But she is likely to face a host of tough questions before the full Senate votes later this Spring.

Sen. Marco Rubio (R-FL), who many observers believe is running for president in 2016, said recently that the conservative movement “is not doing its job” unless it wages a fight against McCarthy.

The nominee is already facing tough questions on a host of issues. The administration may have delayed issuing greenhouse gas rules for utilities but Sen. David Vitter (R-LA), the ranking Republican on the environment committee, and other Republicans are concerned that the agency's GHG permitting requirements may have forced the cancellation of a Texas energy project.

Other energy policies likely to gain attention are pending Tier III fuel policies and blend mandates under the renewable fuel standard.

Vitter has also issued a series of additional demands. He sent a letter earlier this year seeking responses from McCarthy to a series of letters Republicans had sent the agency about various air quality policies. Environment committee Republicans have also called for more information about the reforms EPA is making to its controversial Integrated Risk Information System (IRIS) chemical risk assessment program.

Vitter has also called for EPA to “disavow” its claim that it has authority to preemptively veto Clean Water Act 'dredge-and-fill' permits.

But Republicans may not be the only ones raising concerns. Some environmentalists said last week they are concerned over an imminent EPA guidance for setting protections against radiological risks, charging that the White House's approval of the measure could help McCarthy win over Republicans. “Stabbing the environmentalists in the back on a radiation matter may be a little bit of a gift for the Republicans,” one environmentalist says.

Meanwhile, the Senate energy committee is scheduled to weigh Ernest Moniz's nomination to lead the energy department during an April 9 hearing. Like McCarthy, Moniz is expected to be confirmed but not until he faces questions from Reublicans over the administration's plans on carbon taxes, a series of natural gas issues, including exports, the planned Keystone pipeline and others.

Other hearings slated for this week include an April 10 hearing in the House Energy & Commerce energy and power panel on legislation mandating approval of the Keystone pipeline. The hearing is likely to feature a recent Congressional Research Service (CRS) report that found greater greenhouse gas emissions from the project than the administration estimated.

And on April 11, the energy committee's environment subcommittee is slated to hold a hearing on legislation to preempt EPA oversight of coal ash disposal, which is also likely to feature issues raised in a different CRS report.

In The Courts

The U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments April 8 in environmentalists' lawsuit challenging EPA's decision to grant a three-year exemption for biomass facilities from having to obtain Clean Air Act greenhouse gas (GHG) permits. Keep checking Inside EPA for exclusive coverage later from the oral arguments.

In the suit, Center for Biological Diversity (CBD), et al. v. EPA, environmental groups claim EPA lacked authority to issue any permitting exemption. Several groups have joined CBD in challenging the exemption, including the Conservation Law Foundation, Natural Resources Defense Council, Coastal Conservation League and Dogwood Alliance.

EPA originally granted the three-year permitting exemption in 2011 in response to industry opposition to provisions in the agency's GHG “tailoring” permit rule regulating the facilities. The agency then agreed to a three-year exemption, which expires in 2014, to allow it time to develop a framework to better assess the lifecycle GHGs of biomass -- a project it is still struggling with.

EPA in briefing has defended its power to issue the exemption, and several industry groups have intervened on the agency's behalf including, the American Forest and Paper Association, American Wood Council, Biomass Power Association and several others.

The D.C. Circuit's eventual ruling could have repercussions for the formation of a potential industry coalition that would push EPA to make the exemption permanent. As Inside EPA first reported, publicly owned treatment works, crop and food processing groups are considering forming a coalition that would lobby the agency on extending the three-year exemption permanently.

Department of Justice lawyers will return to the D.C. Circuit April 12 to fight on EPA's behalf to defend the agency's air toxics rule for secondary lead smelters.

The consolidated litigation, Association of Battery Recyclers, et al. v. EPA, brings together lawsuits filed by industry and environmentalists over the rule. The suits challenge the agency's “residual risk” review of the secondary lead smelter maximum achievable control technology (MACT) air rule that it first issued in 1995. The Clean Air Act requires EPA to periodically review its air toxics regulations to determine whether developments in emissions control technology or health risks from exposure to a sector's air pollution warrant revising the standards.

Environmentalists and RSR Corporation, which owns secondary lead smelters in California, Indiana and New York, claim EPA erred by not mandating stricter control technologies. Environmentalists say EPA should have reconsidered its MACT floor, or minimum stringency requirements. RSR Corporation says the agency wrongly rejected use of a wet electrostatic precipitator as the control technology for competitors' new lead recycling plants.

Battery recyclers meanwhile have argued in their briefing that the rule violates the air law by regulating elemental lead -- a “criteria” pollutant -- under air toxics rules. The six criteria pollutants are subject to national ambient air quality standards.

Meanwhile, the American Petroleum Institute (API) is slated to file its opening statement of the issues it will raise in its lawsuit over EPA's decision Jan. 10 to deny in part and grant in part the group's petition to reconsider a key Clean Air Act new source review (NSR) rule.

Several oil and petroleum groups, including API, had petitioned EPA broad reconsideration of the rule in order to simplify and streamline NSR permitting for new energy facilities. Instead, EPA granted a limited reconsideration of the rule on two issues that could result in less sweeping changes to the rule than those sought by industry. EPA also rejected industry's request to stay implementation of the rule pending completion of the reconsideration process.

The rule sets “minor” and “major” source requirements for NSR and prevention of significant deterioration (PSD) permits on tribal land not regulated by states. Major sources are those that emit more than 100 tons per year (tpy) of an air pollutant -- minor sources emit less than this threshold and are subject to less stringent emissions control requirements.

The rule allows facilities to limit their potential to emit to below the 100 tpy limit and qualify for a permit as a “synthetic minor” source. The rule was originally proposed by the Bush EPA to fill a regulatory “gap,” because formerly neither states nor EPA regulated tribal NSR programs. But the rule alarmed industry petitioners, who feared it imposed new requirements and would delay permitting. EPA says that claim is false, and based on a misunderstanding of the rule.

API's lawsuit challenges EPA's Jan. 10 response to the petition for reconsideration, but the group's statement of issues was not available at press time.


The White House is slated April 10 to unveil its fiscal year 2014 budget request. The broad outlines that have been revealed -- new tax revenue in exchange for unspecified cuts to Social Security -- have already drawn opposition from Republicans -- but the document could provide an indication of the future cuts EPA is likely to face.

EPA is hosting an April 10 meeting in Research Triangle Park, NC, to get input from states on how to deal with interstate air transport concerns after a federal appellate court vacated the agency's cross-state air transport rule. The meeting is intended to address “the next steps to address the transport of air pollution across state boundaries,” according to the agency's website.

A second meeting is slated for April 17 in Denver, CO, and a third will occur during the April 30-May 2 National Tribal Forum on Air Quality in Fountain Hills, AZ.