Environmental Policy Alert

Inside EPA’s
Environmental Policy Alert
An exclusive bi-weekly report tracking environmental legislation, regulation and litigation
Vol. XXXII, No. 6 — March 18, 2015
EPA Rejects State Push To Delay ESPS Implementation
A top EPA official is rejecting calls from recalcitrant states to delay finalizing or implementing its
rule to curb greenhouse gases from existing power plants, which the agency plans to issue this
summer, in the face of opposition from cooperative states whose officials say any delay would
undermine their ability to comply. Speaking to high-ranking state environmental regulators March
16, acting EPA air chief Janet McCabe said EPA will “move forward” with the existing source
performance standards (ESPS), echoing recent comments from EPA Administrator Gina McCarthy
that the agency will stick to its existing schedule. Climate Change, Page 28.
Asbestos Seen As TSCA Reform Test For
EPA’s Power To Ban Chemicals
Newly unveiled Senate bills to overhaul the Toxic Substances
Control Act (TSCA) are highlighting EPA’s inability to ban asbestos
under the current law, making the potential for an asbestos ban a
key test for the extent to which reform legislation should give the
agency new authority to prohibit harmful substances from the
marketplace. “The true test of TSCA reform ought to be whether
EPA can quickly ban asbestos” with new authority in a TSCA reform
bill through revisions to the law’s section 6, one environmentalist
says. Toxics & Pesticides, Page 23.
High Court Focus On ‘Deference’
Presents New Hurdles For EPA Rules
Supreme Court justices are showing increasing division on the
deference judges should give EPA and other agencies’ regulatory
authority — setting the stage for that question to play a central role
when the high court considers EPA’s controversial pending rules on
Clean Water Act jurisdiction and climate change, observers say. In
concurrences to two March 9 decisions, and at the closely watched
March 4 oral arguments over implementation of the Affordable Care
Act, the court’s conservatives have expressed concerns over
agencies’ leeway to act without explicit congressional authority and
oversight. Regulatory Review, Page 35.
EPA PM2.5 SIP Rule Shows Effect Of
Ruling Requiring Stricter Air Controls
EPA’s just-released proposed rule guiding states on how to
implement that agency’s 2012 fine particulate matter (PM2.5) air
standard highlights the broad effect of an adverse appellate ruling
on the policy, forcing the agency to float a range of options for
states to comply under stricter Clean Air Act provisions than
previous policies. The proposed rule details a long list of requirements
for states when crafting state implementation plans (SIPs) for
meeting the annual 2012 PM2.5 air standard. Air, Page 8.
GOP Seeks To Codify Ash Rule
House Republicans are floating a draft
bill that would largely codify EPA’s final
coal ash disposal rule that regulates the
material as solid rather than hazardous
waste, but the legislation would give
states primary authority to enforce
waste disposal site standards and
prohibit the agency from ever regulating
ash as hazardous waste in the future.
The draft bill aims to avoid what
industry and states have called
uncertain “dual track” enforcement
under EPA’s final rule. Page 3.
Integrated Water Plans Pushed
An EPA water official is challenging
cities to incorporate integrated
wastewater and stormwater plans into
their Clean Water Act (CWA) discharge
permits, saying any perceived
hesitancy from the agency to approve
such plans in permits and consent
decrees is based on the choices made
by specific municipalities. Page 15.
‘Tier 3’ Advocates Counter Critics
Proponents of EPA’s final “Tier 3” fuel
air rule say current low gas prices
combined with the oil sector’s decision
not to sue over the rule despite claims
it would spur gas price spikes show
industry’s attacks on the rule were
unfounded, echoing what advocates
say was a flawed “train wreck”
campaign utilities waged against EPA
air rules. Petroleum industry officials
counter that EPA only finalized the Tier
3 standards in April and the rule will not
be implemented until 2017, so its real
world costs remain to be seen despite
current gas prices. Page 37.
Background Documents For This Issue
Subscribers to InsideEPA.com have access to hundreds of documents, as well as a searchable archive of
back issues of Environmental Policy Alert. The following are some of the documents available from this issue
of Environmental Policy Alert. For a full list of documents, go to the latest issue of Environmental Policy Alert
on InsideEPA.com. For more information about InsideEPA.com, call 1-800-424-9068.
Documents available from this issue of Environmental Policy Alert:
„ Circuit Court Rejects Truckers’ Challenge Of California Diesel Rule (179431)
„ Court Gives EPA Until 2016 To Reexamine RCRA Corrosive Dust Limits (179706)
„ District Court Reverses Liability Decision In Fox River Case (179670)
„ EAB Ruling Reverses TSCA Penalty In Landmark Reporting Case (179679)
„ Environmentalists Oppose 90-Day Comment Extension On Draft Spill Rule (179671)
„ Environmentalists Question Quality Of EPA’s Utility SO2 Data (179521)
„ Environmentalists Raise Legal Concerns With Northwest Water Trading Plan (179455)
„ Environmentalists Seek House Hearing On Coal Ash Bill (179662)
„ EPA Defends Texas Flexible Air Permits From Critics’ Suit (179500)
„ EPA Proposes Implementation Rule For PM2.5 NAAQS (179661)
„ EPA Pushes Massachusetts For Updated CWA ‘Areawide’ Plans Under Settlement (179370)
„ Former EPA Risk Assessor Questions Outdated IRIS Assessments (179497)
„ Groups File Final Briefs In Suit Over EPA’s CISWI Air Rule (179496)
„ Groups File Final Briefs In Suit Over EPA’s Proposed Climate ESPS (179501)
„ Groups File High Court Amicus Briefs Defending EPA’s Utility MACT (179467)
„ Groups Weigh Options For EPA To Drop CCS From Climate NSPS (179566)
„ House Lawmakers Float Draft Legislation To Revise EPA’s Coal Ash Rule (179575)
„ House Renews Push For Regulatory Reform Legislation (179522)
„ Industry Asks High Court To Broaden CWA Permit ‘Shield’ (179304)
„ Michigan Utility Files Brief In Key New Source Review Lawsuit (179440)
„ NMA Urges EPA To Revise Mining Standards In National Stormwater Permit (179375)
„ Sen. Durbin Bill Would Create Asbestos Product Database (179714)
„ Sens. Vitter, Udall Introduce Latest Revised TSCA Reform Bill (179530)
„ Supreme Court Backs Agency ‘Interpretive’ Rulemaking Authority (179493)
Not an online subscriber? Now you can still have access to all the background documents referenced in this issue
through our new pay-per-view Environmental NewsStand. Go to www.EnvironmentalNewsStand.com to find out more.
ENVIRONMENTAL POLICY ALERT — www.InsideEPA.com — March 18, 2015
House GOP Seeks To Codify EPA’s Coal Ash Rule With State Enforcement
House Republicans are floating a draft bill that would largely codify EPA’s final coal ash disposal rule that regulates
the material as solid rather than hazardous waste, but the legislation would give states primary authority to enforce
waste disposal site standards and prohibit the agency from ever regulating ash as hazardous waste in the future.
The draft bill, released March 11 by Rep. David McKinley (R-WV), aims to avoid what industry and states have
called uncertain “dual track” enforcement under the agency’s final regulation, by which facilities would have to comply
with state-crafted standards but could still be sued by citizen groups for failing to meet separate federal regulations.
Relevant documents are available on InsideEPA.com. See page 2 for details. (Doc. ID: 179575)
“The draft legislation would incorporate EPA’s final coal ash rule announced in December. It would eliminate the
implementation issues associated with the final rule and give states the necessary enforcement authority to implement
the standards set by EPA,” according to a press release from the House Energy & Commerce Committee announcing the
bill ahead of a planned environment subcommittee hearing on the bill slated for March 18.
McKinley’s announcement comes as EPA is expecting to publish the final coal ash disposal rule in the Federal
Register in the coming weeks, which would start the 90-day clock for groups to file suit over the rule and also begin
implementation of some of the regulation’s requirements within six months.
If enacted into law, the bill would largely codify EPA’s decision to regulate ash as a solid waste under subtitle D of
the Resource Conservation & Recovery Act (RCRA) as industry and states sought. That move rejected calls from
environmentalists for regulation as hazardous waste under RCRA subtitle C that they argued that would lead to stricter
disposal controls, though industry said solid waste rules are just as protective as subtitle C.
But the draft bill would bar EPA from ever revising the rule to regulate ash as hazardous waste, which House
Energy & Commerce Committee environment panel Chairman John Shimkus (R-IL) has suggested is a necessary step in
order to provide “certainty” to the disposal industry and others about how EPA regulates ash.
“Nothing in this Act, or the amendments made by this Act, shall be construed to alter in any manner” EPA’s determination that coal ash is not a subtitle C hazardous waste, the bill says.
The new draft bill echoes much of the content of legislation McKinley unsuccessfully pushed in 2013 that would
generally apply subtitle D ash standards, but under a new enforcement track where states would craft standards for ash
disposal that would be reviewed and approved by EPA, without citizen suit provisions.
The bill cleared the House but failed to gain traction in the Democratic-led Senate last year, although the White
House did not threaten a veto and instead offered ways to revise the bill to win President Obama’s support, signaling
that Obama could be open to signing the current bill if it clears the legislature.
Incorporating technical standards from the agency’s Resource Conservation & Recovery Act (RCRA) rule into the
draft legislation means the bill would regulate some “legacy” sites — facilities where ash is still stored but is no longer
actively deposited — as well as fugitive dust emissions. Environmentalists sought the inclusion of those provisions in
EPA’s rule, and they could help win Democratic support for the legislation.
If approved as drafted, the bill would give states two years to craft coal ash disposal rules and submit them to
EPA for review. State rules would have to be at least as stringent as those set out in the agency’s 2014 rule, and would be
enforceable by state regulators or through citizen suits. EPA would directly administer coal ash disposal permitting in
any state that does not craft its own approved plan.
“The legislation will not impact the ability to bring citizen suits under RCRA — it will just alleviate citizen suits as
being the only mechanism for enforcement,” says a House energy panel summary of the bill.
McKinley’s bill would also carry over EPA’s language on reuse of coal ash, including its use in construction
materials as well as in structural fills. Environmentalists have expressed concern over some of the rule’s language on
beneficial reuse, as the advocates claim that coal ash is hazardous waste and warn that unregulated reuse poses a risk to
human health despite the agency’s decision to identify the substance as solid waste.
Alongside engineering requirements for ash disposal sites, the rule set first-time criteria for distinguishing disposal
from “beneficial reuse,” in which coal ash is used as a component in manufactured products such as wallboard or as an
engineering material. Ash reuse projects that fail to meet the listed criteria would be categorized as “disposal” and
subjected to RCRA subtitle D standards.
The draft House bill also incorporates the rule’s novel test for when large structural fills — where an open site is
filled in with ash — will be considered disposal rather than reuse. Under the bill, if a structural fill would involve at
least 12,400 tons of ash, in order to avoid disposal standards, the user must show that releases to groundwater, surface
water, soil and air are “comparable to or lower than” releases from materials other than coal ash.
If Congress approves a coal ash bill and President Obama signs it, the legislation would short-circuit expected
litigation from industry and environmentalists that would be aimed respectively at altering the rule’s enforcement
provisions or forcing EPA to regulate ash as hazardous waste. — David LaRoss
ENVIRONMENTAL POLICY ALERT — www.InsideEPA.com — March 18, 2015
Advocates Warn House Coal Ash Bill Would Weaken EPA’s Disposal Rule
Environmentalists are warning that House Republicans’ draft coal ash disposal bill — which aims to codify much of
EPA’s final ash waste rule while giving states primary enforcement authority — would significantly weaken the agency’s
regulation, including depriving EPA of vital oversight, and lead to insufficiently protective ash controls.
The draft bill, released March 11 by Rep. David McKinley (R-WV), has been touted by Republicans on the
House Energy & Commerce Committee as largely replicating EPA’s final rule governing disposal of coal ash,
which the agency signed in December but has yet to publish in the Federal Register — a necessary step for the
policy to take effect.
But an environmentalist attorney says that while the McKinley bill includes many of EPA’s technical standards, it
would give the agency little power to enforce them.
“This bill would give states more discretion than they have with any solid or hazardous waste in the universe, and
they can feel free not to impose some very important provisions, and with the language they’re using, I don’t see what
EPA could do about it. This is really smoke and mirrors,” the attorney says.
McKinley’s draft echoes much of the content of legislation he unsuccessfully pushed in 2013 that would generally
apply Resource Conservation & Recovery Act (RCRA) subtitle D solid waste standards for coal ash, but under a new
enforcement track where states would craft standards for ash disposal that would be reviewed and approved by EPA,
without citizen suit provisions.
The 2013 bill cleared the House but failed to gain traction in the Democratic-led Senate last year, although the
White House did not threaten a veto and instead offered ways to revise the bill to win President Obama’s support,
signaling that Obama could be open to signing the current bill if it clears the legislature.
EPA’s rule regulates ash as a solid waste under subtitle D as industry and states sought. That move rejected calls
from environmentalists for regulation as hazardous waste under RCRA subtitle C that they argued that would lead to
stricter disposal controls, though industry said solid waste rules are just as protective as subtitle C.
However, the attorney says the bill appears not to include a standard for EPA to apply in reviewing state submissions, unlike the disposal rule which requires state-crafted standards to show “no reasonable probability of adverse
effects on health or the environment from disposal” of the waste.
“This bill has the same problem that all of Mr. McKinley’s bills have had, which is that there’s no standard of
protection. . . . It’s a very, very important omission, and it’s one that we’ve pointed out before. We know how to put
together a protective delegated program. If McKinley is touting this as a federal floor, the bill did not accomplish that,”
the attorney continues.
The bill would also extend compliance timelines — which unlike in the regulation would be tied to the issuance of
state-crafted permits — for as long as seven years for some technical and siting requirements, if facilities seek and
receive extensions for permit application deadlines. By contrast, provisions of EPA’s rule would take between six
months and three years after publication to become effective.
“EPA’s final rule was less than we had hoped for, but provides at least some of the standards that we are now
counting on. We cannot afford to lose that certainty, or take even more time getting these protections in place,” says a
March 6 letter reacting to early reports of the bill from over 50 individuals and environmentalist groups to House
Energy & Commerce Committee Chairman John Shimkus (R-IL) and ranking member Paul Tonko (D-NY). The letter is
available on InsideEPA.com. See page 2 for details. (Doc. ID: 179662)
The letter seeks a committee hearing to gather communities’ input on a coal ash bill. It was sent before the committee scheduled a March 18 hearing on McKinley’s draft.
Monitoring provisions that required facility operators to publicly disclose groundwater contamination data and
other potential indicators of environmental risk are also absent from McKinley’s bill, environmentalists say.
“Among other things, McKinley’s bill would eliminate a requirement for electric utilities to publicly disclose
information when their coal ash dumps leak and contaminate local drinking water supplies,” says a spokesperson for the
Environmental Integrity Project.
Like the agency’s disposal rule, McKinley’s bill would regulate some “legacy” sites — facilities where ash is still
stored but is no longer actively deposited — as well as fugitive dust emissions. But environmentalists say the timeline
for closing legacy sites that do not comply with subtitle D standards has been drastically lengthened in part because such
sites would only have to seek permits, rather than immediately begin closure, if they do not achieve compliance by an
initial deadline.
“The timeline is not only way too long and attenuated, it’s uncertain. Everything will depend on the permit conditions,” the attorney says. — David LaRoss
ENVIRONMENTAL POLICY ALERT — www.InsideEPA.com — March 18, 2015
EPA Agrees To 2016 Deadline For Decision On RCRA Corrosivity Standard
Under a joint motion adopted by a federal appellate court March 13, EPA has agreed to meet a March 2016
deadline for making a decision on whether it will tighten hazardous waste listing criteria for corrosivity under federal
waste law, as requested by a whistleblower group.
The U.S. Court of Appeals for the District of Columbia Circuit March 13 in In Re Cate Jenkins, et al. v. EPA
granted a joint motion by Public Employees for Environmental Responsibility (PEER), which often represents government whistleblowers, and EPA to stay for one year proceedings in a lawsuit filed by PEER. The group last September
asked the court to force the agency to respond to its three-year-old petition asking EPA to tighten corrosive dust limits
under the Resource Conservation & Recovery Act (RCRA). Relevant documents are available on InsideEPA.com. See
page 2 for details. (Doc. ID: 179706)
Under the motion, EPA has agreed to file a response in the Federal Register by March 31, 2016, to the group’s
petition, either putting forward an advance notice of proposed rulemaking, releasing a proposed rule or issuing a
tentative decision to deny the petition, PEER says in a March 16 press release. But if EPA decides against revising its
corrosive dust safety limits, “it will be vulnerable to another suit that this decision lacks a rational basis,” the group
“EPA can no longer hide from this serious public health concern, it finally has to act,” PEER Senior Counsel Paula
Dinerstein said in the release. “Getting agencies like EPA to admit they have been wrong, especially when many people
have died as a result, is no small undertaking.”
At issue is a 35-year-old regulation that PEER says is 10 times less stringent than the presumed safe levels set for
alkaline corrosives by the United Nations, European Union and Canada. The group says the too-lenient pH levels for
corrosivity were noticed in the aftermath of the Sept. 11, 2001, World Trade Center attacks when first responders
suffered severe, permanent and in some instances fatal effects due to exposure to corrosive dust at the World Trade
Center site. In addition to first responders, the standard affects exposures to the public at hazardous waste release sites,
and exposures to materials transported on highways, rail and by air subject to Transportation Department regulations,
according to the group.
PEER wants the agency to amend the hazardous waste listing criteria for corrosivity, and filed a petition with the
agency to do so more than three years ago, according to court documents. The group alleges EPA’s current standard is
due to either negligent error or outright fraud.
The current alkaline corrosivity standard subjects substances to hazardous waste regulation under RCRA if they
have a pH equal to or less than 2 — meaning highly acidic — or equal to or greater than 12.5, meaning highly alkaline.
In determining the upper end of that standard, the agency “falsely” relied on World Health Organization (WHO)
findings, arguing that WHO only found human eye tissue impacts at pH levels above 11.5, PEER says. EPA justified its
12.5 level “by claiming that that level would not compromise human health because although eye tissue is damaged at
levels above 11.5, skin tissue is not,” PEER says in its Sept 9, 2014, petition to the court for writ of mandamus. It notes
that 11.5 is 10 times less corrosive than 12.5.
Further, it says WHO has said that both eye and skin damage occur at 11.5 or above. “EPA’s selection of a pH of
12.5 as the standard appears to come out of nowhere, and has no claimed scientific support,” the mandamus petition
The group also contends that the agency should reverse an exemption under the corrosivity standard for nonaqueous corrosive materials. “The standard overlooks the fact that water-free alkaline materials quickly absorb water
from body tissues, particularly the respiratory tract, on human contact,” PEER says in the press release. “This can result
in irreversible chemical burns, particularly after inhalation.” Further, the current standards fail to recognize that corrosive dust kills or immobilizes ciliary cells that line the throat and upper respiratory tract, which permits other toxics to
travel deep inside the lungs, PEER says in the release.
The group cites impacts from the standards beyond emergency response, noting that corrosive dust is often emitted
during building demolition and in cement truck accidents, and that the standard is used to evaluate risks to members of
the public who live around cement manufacturing plants for possible regulation under RCRA. Also, the standard was
incorporated into the List of Hazardous Substances under the Comprehensive Environmental Response, Compensation
& Liability Act (CERCLA) amendments to the National Contingency Plan (NCP), the regulatory blueprint for
CERCLA. This list “is used as the benchmark[] for first responders and the public at all hazardous release sites, pursuant to the NCP,” the group says in the mandamus petition.
The court is directing EPA to provide it with status reports every 120 days starting July 13. — Suzanne Yohannan
ENVIRONMENTAL POLICY ALERT — www.InsideEPA.com — March 18, 2015
District Court Reverses Fox River Liability Following 7th Circuit Decision
Responding to a September appellate ruling, a federal district court has reversed its 2011 decision that cleared a
potentially responsible party (PRP) from liability for a portion of the massive Fox River, WI, sediment cleanup site,
finding the PRP cannot limit its liability on the grounds that it did not cause the contamination in that portion of the
Under the March 3 ruling by the U.S. District Court for the Eastern District of Wisconsin in Appvion, Inc. and NCR
Corp. v. P.H. Glatfelter Co., et al., NCR can no longer make the argument that it is not liable because it did not contribute to the Fox River site’s operable unit (OU) 1, says a hazardous waste law attorney. While several rulings have held
that a site cannot be divided into multiple facilities to limit a PRP’s liability, the September ruling from the U.S. Court
of Appeals for the 7th Circuit appears to be the first to make the point that a party cannot divide up a site by operable
unit for the purposes of liability, hazardous waste law attorney Marc Zeppetello said in an interview. The district court
decision is available on InsideEPA.com. See page 2 for details. (Doc. ID: 179670)
The 7th Circuit, however, did note that operable unit designations may be relevant to a divisibility defense under
the Comprehensive Environmental Response, Compensation & Liability Act (CERCLA), which could lend support to
PRPs in other, future cases where the government is seeking cost recovery, he said. While NCR can no longer make that
contention here, it could argue during the contribution aspect of the case — which has been remanded to the district
court — “that while it is technically liable, its equitable share of OU1 costs should be zero because it did not contribute
to any contamination in that operable unit,” he said.
Originally, in its 2011 decision, the district court had held NCR was not liable for cleanup costs related to OU1
because its facilities were downstream from the unit and could not have contributed to OU1’s contamination.
The case involves the cleanup of contaminated sediment stemming from paper mill discharges of polychlorinated biphenyls (PCBs) into Wisconsin’s Lower Fox River. Litigants NCR and Glatfelter are PRPs because they or
their predecessors discharged wastewater containing PCBs from paper mills into the river for decades, the 7th
Circuit says.
The 7th Circuit in a Sept. 25 ruling in United States v. P.H. Glatfelter Company, et al. rejected an argument made
by Glatfelter that discharges from its facility at OU1 had not been in sufficient quantities to justify holding it liable for
contamination in OU4, a location much further downstream. The 7th Circuit used the so-called “one site” theory, saying
Glatfelter’s argument “goes astray” by assuming that “the government must prove all of the elements of liability in
relation to each operable unit of the Site.” The law does not require that, it says.
Rather, the appellate court found that once a party is determined to be responsible for a release from a facility
which causes response costs, that party is liable for “all costs of removal or remedial action incurred” by the government.
As a result, the 7th Circuit court “rejected Glatfelter’s argument that the government needed to prove the connection between its releases in OU1 and response costs in OU4. It was enough that Glatfelter released the PCBs at the Site
and that there were response costs incurred at that Site,” the district court says in its March 3 ruling.
The 7th Circuit found that it would be inconsistent with Superfund’s National Contingency Plan (NCP) to
treat one operable unit as a separate site for which the federal government must establish liability. The NCP defines an
OU “as ‘a discrete action that comprises an incremental step toward comprehensively addressing site problems,’” the
7th Circuit wrote. “To put simply, operable units are not separate sites; thus they do not determine the extent of a party’s
liability,” it wrote.
“Based on the Seventh Circuit’s ruling, Glatfelter now argues that what’s good for the goose is good for the gander:
if Glatfelter must be held liable for the entire Site—regardless of causation—then so must NCR,” the district court now
says. “NCR had argued that it could not be liable for OU1 because it did not cause response costs in OU1,” it says.
“But since we now know that causation is not properly part of the analysis, Glatfelter contends, that doesn’t matter.
It is enough that NCR released PCBs at the Site, which clearly it did,” the district court says.
The court says Glatfelter’s motion for reconsideration overcomes procedural issues that typically would bar
reconsideration as this “is not a typical case.”
“Given the complexity of the issues raised, as well as the underlying uncertainty of CERCLA law, a court should
not be over-eager to strictly apply procedural rules that bar arguments, particularly arguments that now seem viable,” it
“[T]he Seventh Circuit very clearly de-linked the need for parties to prove causation with respect to each operable
unit of a Site, and preventing Glatfelter from making that argument now could work a manifest injustice because it
would mean the parties are not playing on a level playing field. The law should not be one thing for one party and
another for a second party, especially within the confines of a single action.”
As a result, the court says it grants the motion for reconsideration and finds that “NCR is liable for OU1 because it
released PCBs at the Lower Fox River Site.”
ENVIRONMENTAL POLICY ALERT — www.InsideEPA.com — March 18, 2015
Environmentalists Eye Impact Of Precedential New Jersey NRD Deal
Environmentalists are expressing outrage over precedent-setting decisions by New Jersey to settle two high-profile
natural resource damages (NRD) claims for a fraction of the state’s original estimates, with one environmentalist saying
other states could mirror the move to settle for pennies on the dollar and divert settlement monies to other state needs as
a 2014 New Jersey law allows.
But an industry attorney who closely follows NRD issues says that while industry is keeping an eye on the issue of
diverting NRD settlement monies, many other states have laws contrary to New Jersey’s. In these states, their laws
expressly bar using NRD settlement funds for non-environmental purposes, the source says. “This is in keeping with the
fact that NRD is compensatory, intended to restore natural resource services back to the public, and is not intended to be
punitive or provide revenue streams for other purposes,” the source says in an email response.
And an attorney who has represented other states in NRD litigation is doubtful a state judge will approve a pending
settlement with ExxonMobil, saying that if the allegation is correct that the settlement is disproportionately unfair, the
judge should not approve it.
New Jersey Gov. Chris Christie’s (R) recent decision to settle long-fought NRD claims against ExxonMobil for
$225 million for injury to natural resources at a variety of sites in the state, as first reported by the New York Times, has
raised the ire of environmentalists and others who say the state originally estimated damages at $8.9 billion for the loss
of more than 1,500 acres of wetlands and other resources. The state is expected to publish the settlement in the state’s
Register April 6, followed by a 30-day public comment period and subject to approval by a state Superior Court judge.
In a March 4 op-ed piece in the New York Times, former New Jersey Department of Environmental Protection
(DEP) Commissioner Bradley Campbell accused Christie’s chief counsel of “inserting himself into the case, elbow[ing]
aside the attorney general and career employees who had developed and prosecuted the litigation, and cut[ting] the deal
favorable to Exxon,” after more than a decade of litigation.
But in a March 5 press release, the state Office of the Attorney General (AG) defends the proposed settlement as
the largest NRD settlement in the state’s history. “This important settlement, which came about because this administration aggressively pushed the case to trial, is the result of long fought settlement negotiations that pre-dated and postdated the trial,” Acting Attorney General John J. Hoffman says in the release.
Following the public comment and response period, the parties in the case will submit a final consent judgment to
Superior Court Judge Michael J. Hogan for approval, the AG’s office says. The settlement will only become final if the
judge has approved it and once any appeals are resolved, the office says. Hogan held a 66-day trial in the case last year,
and the court had previously ruled that ExxonMobil was liable, it says.
Under the proposed settlement, ExxonMobil will resolve its alleged liability to state trustees for NRD resulting
from discharges at the company’s Bayway and Bayonne refineries, as well as some NRD claims at a refinery operation
in Paulsboro, the office says. In addition, the settlement would resolve NRD claims related to 16 additional facilities
and the company’s retail service stations, but preserve NRD claims that relate to the discharge of methyl tertiary butyl
ether, or MTBE, at those stations, it says.
The Sierra Club’s New Jersey Chapter points to a pattern over the past year — in this case and a case settled
late last year involving NRD liability for contamination of the Passaic River, as well as smaller settlements — where the
group says the state is reaching settlements to allegedly take advantage of a budgetary measure inserted by the Christie
administration into 2014 legislation that effectively limits NRD projects to $50 million, with any additional NRD
settlement money collected going to the state’s general fund. This measure runs with the state’s fiscal year, and expires
July 1, a source with a whistleblower group says.
The state AG’s office predicts the state will not receive ExxonMobil settlement monies until fiscal year 2016, and
says allocation of the funds under that settlement “will depend upon the appropriations act enacted for that respective
fiscal year.” But the whistleblower source alleges the AG’s office is using that argument as a “cover story” now that the
“deal blew up.”
In 2014, Democratic lawmakers backed appropriations legislation that would have allowed half of NRD awards to
go to the state’s general fund and half left for environmental projects, Sierra Club New Jersey Chapter Director Jeff
Tittel said in an interview. Christie in response used his line-item veto power to strike that language and instead allow
only the first $50 million awarded under an NRD settlement to go to restoration, while recoveries above that number
would be deposited in the state’s general fund, according to Tittel and the budgetary language.
In a Feb. 27 press release, Tittel calls the action in the ExxonMobil settlement “an outrageous abuse of power by
the administration selling out the environment and the tax payers of New Jersey.” The proposed settlement is so egregious that the group may sue, Tittel said in the interview.
Tittel also says in the release the “Christie Administration has settled this case fast to be able to use this money to
help balance their budget.”
In the interview, he predicted the low-figure settlements and diversion of funds for other budgetary needs is
ENVIRONMENTAL POLICY ALERT — www.InsideEPA.com — March 18, 2015
something that may be taken up by other “big oil” GOP-led states.
And he argues in the release that the ExxonMobil settlement gives the go-ahead to others to pollute. “When we let
polluters off the hook it sends a very clear message to other regulated polluters and entities that in New Jersey under the
Christie Administration you can get away with anything,” he says.
The Sierra Club release says that the ExxonMobil deal follows along the same lines as the state’s Passaic River
dioxin settlement reached last year. In that situation, the state “settled the case for what should have been a $2 billion
judgment, settling for $190 million then diverting $150 million to plug a hole in the budget,” Tittel says in the release.
The attorney who has represented other states in NRD litigation calls the budgetary measure “outrageous,” saying
the big “story” is this measure, where after millions of dollars have been spent on attorneys, the state decides to settle
“two monster cases” with the money now not going to restoration.
The attorney says responsible parties will often accuse states of being greedy by pursuing NRD claims but that
states’ strongest arguments against those accusations is that NRD is not meant to be punitive. Rather, states have argued
that through NRD claims they are just trying to make the public whole. But with the $50 million budgetary limit on
funding NRD projects in New Jersey, that argument lacks the same weight, the source says.
EPA PM2.5 SIP Rule Shows Effect Of Ruling Requiring Stricter Air Controls
EPA’s just-released proposed rule guiding states on how to implement that agency’s 2012 fine particulate matter
(PM2.5) air standard highlights the broad effect of an adverse appellate ruling on the policy, forcing the agency to float
a range of options for states to comply under stricter Clean Air Act provisions than previous policies.
In the proposed rule signed March 10 by EPA Administrator Gina McCarthy, but not yet published in the Federal
Register, EPA details a lengthy list of requirements for states when crafting state implementation plans (SIPs) for
meeting the annual 2012 PM2.5 national ambient air quality standard (NAAQS), set by EPA at 12 micrograms per cubic
meters (ug/m3) annually. The 2012 rulemaking tightened the standard from the prior 2006 NAAQS of 15 ug/m3. The
proposed rule is available on InsideEPA.com. See page 2 for details. (Doc. ID: 179661)
The proposal grapples with how to regulate PM2.5 under stricter air law provisions mandated by the U.S. Court of
Appeals for the District of Columbia Circuit in its 2013 ruling in Natural Resources Defense Council (NRDC) v. EPA, in
which it faulted the agency for using weaker provisions of the air law in prior implementation rules.
In the case, the court agreed with NRDC and other environmentalists that EPA had wrongly applied softer Clean Air
Act “subpart 1” provisions to implement PM2.5 standards, which apply to the NAAQS program in general, rather than
the more stringent “subpart 4” provisions that apply to coarse particulate matter (PM10).
The court rejected EPA’s argument that PM2.5 was a “new” pollutant, and hence not subject to subpart 4, finding
instead that PM2.5 is a subset of the larger PM10 and must therefore be subject to the tougher terms of subpart 4. EPA’s
new implementation rule shows that decision has multiple implications for PM2.5 SIP planning.
One implication of the ruling is that EPA must now reexamine the SIP requirements for regulation of PM2.5
precursors, such as sulfur dioxide, nitrogen oxides, volatile organic compounds and ammonia. These chemicals react in
the air to form PM2.5, rather than being directly emitted as particles from pollution sources.
Subpart 4 sets specific requirements for EPA’s treatment of precursors, requiring a more detailed consideration than
the more general Subpart 1. EPA had under previous implementation policies, remanded by the D.C. Circuit, allowed
nationally applicable presumptions that states did not have to consider some precursors, such as ammonia, for particular
regulatory purposes such as new source review permitting requirements.
In the new proposed rule, EPA is saying it would abolish such presumptions in favor of state-specific exemptions
that must be justified by local regulators, under three options the agency invites comment on.
“This rule does not propose any national presumption that would simply allow a state to exclude sources of emissions of a particular precursor from further analysis for control requirements. However, the EPA’s existing interpretation
of subpart 4 requirements — with respect to precursors in attainment plans for PM10, as set out in the General Preamble
— contemplates that the state may develop an attainment plan that regulates only those precursors that are necessary to
control for purposes of timely attainment in the area, i.e., states may determine that only certain precursors need to be
regulated for attainment purposes,” according to the rule.
The agency says that courts have supported such an approach for regulation of PM10 emissions. The livestock
industry has recently expressed concern that EPA might require regulation of ammonia.
Agriculture groups say although ammonia is unquestionably part of the overall air pollution mix that leads to fine
PM2.5 formation, there is no scientific evidence to suggest that ammonia, and specifically ammonia produced from
ENVIRONMENTAL POLICY ALERT — www.InsideEPA.com — March 18, 2015
manure generated in intensive animal husbandry, is to blame for ill health. There has “never been a serious look at the
fact that certain species of PM2.5 cause no health effects,” one industry source has said, citing studies that have failed to
show adverse health effects from breathing ammonia emitted by farming sources.
Industry sources prefer voluntary approaches to reducing ammonia emissions, and EPA Region 7 Administrator
Karl Brooks recently touted efforts within his region to voluntarily cut agricultural ammonia.
But EPA’s implementation rule includes options that appear to offer a way for the industry in specific states, such as
California, to avoid direct regulation of the livestock sector as a way to reduce PM.
Option one requires two analyses: an attainment planning analysis demonstrating that control measures for a
particular precursor are not needed for expeditious attainment, and a technical demonstration showing that major
stationary sources of a particular precursor do not contribute significantly to levels that exceed the PM2.5 standard. Option two calls for a single analysis demonstrating that all emissions of a particular precursor from within the area do not
significantly contribute to PM2.5 levels that exceed the standard.
Option three calls for an attainment planning analysis demonstrating that control measures for all types of sources
of a particular precursor are not needed for expeditious attainment.
Other changes EPA contemplates in the rule include altered submission deadlines for various SIP-related documents, and how to adapt to Subpart 4’s two-step system classifying the severity of nonattainment areas.
Subpart 4 initially places all areas in “moderate” nonattainment, then bumps them up to “serious” status if they fail
to attain the NAAQS by applicable regulatory deadlines. Subpart 1 does not divide areas into different nonattainment
levels. Serious status requires the application of stringent control measures under best available control technology and
best available control measures provisions — tougher than “reasonably available” control technology or measures that
are required for “moderate” nonattainment areas to reduce their emissions levels.
The proposed rule would also revoke the agency’s prior “primary,” or health-based, annual PM2.5 NAAQS set at
15 ug/m3 in 1997, although again EPA floats options for how to achieve this goal.
Option one would revoke the NAAQS “for all purposes in attainment areas for that NAAQS 1 year after the
effective date of the designations for the 2012 primary annual PM2.5 NAAQS,” while option two would revoke the
NAAQS for all purposes in both nonattainment and attainment areas.
Revoking old NAAQS standards has in the past led to legal fights between environmentalists and EPA over which
measures to combat air quality “backsliding” EPA must retain from the revoked NAAQS. — Stuart Parker
EPA’s Utility MACT Cost Review May Protect Rule Under Potential Remand
EPA’s existing cost-benefit analysis for its utility air toxics rule is robust and legally sound, says a legal advocacy
group, which could help the agency use the analysis as the basis for responding to a potential Supreme Court remand of
the rule to EPA if the court agrees with industry that the agency erred by not considering costs in launching the
The utility maximum achievable control technology (MACT) air toxics rule “is massively cost-benefit justified,
delivering tens of billions of dollars in net benefits each year, including thousands of lives saved annually plus other
significant health and environmental improvements,” says a March 6 amicus brief filed by the New York University
School of Law’s Institute for Policy Integrity (IPI) in pending high court litigation over the MACT. Relevant documents
are available on InsideEPA.com. See page 2 for details. (Doc. ID: 179467)
Industry groups want the justices to scrap the rule for what they say is EPA’s failure to consider the costs to the
power sector when it decided a MACT rule for utilities was “appropriate and necessary” under the Clean Air Act, but
IPI argues that years-old legal and regulatory precedent do not require such considerations.
IPI says the court should grant EPA deference on whether to assess costs in its process for determining whether to
subject an industrial sector to a MACT, saying the air law is silent on such a requirement. The group adds that EPA “for
at least two decades” has said costs are not considered a factor in the initial review of whether to list an industry as
regulated under a MACT, and that costs were too uncertain at the listing stage of the utility rule.
EPA’s adversaries “falsely portray EPA and the Rule as irrationally and recklessly bent on decimating the electricity
sector for the sake of miniscule benefits and without any attention to regulatory costs,” IPI says. “That portrayal is
false,” the group says, because the rule’s net benefits “are real and extremely substantial.”
The MACT and its regulatory impact analysis outlining the potential costs and benefits of the rule — issued after
the listing decision — “were thoroughly vetted by the executive branch review process,” IPI says. EPA correctly
evaluated the rule’s costs when setting the MACT, but “assessing costs any earlier in the regulatory process . . . both is
not statutorily required and could be grossly misleading,” according to the amicus brief.
IPI says this is because costs “may decrease or increase significantly as EPA chooses the regulation’s scope,
stringency, design, flexibility, timeline, and approach toward different industry segments.” Attempting to assess costs
ENVIRONMENTAL POLICY ALERT — www.InsideEPA.com — March 18, 2015
and benefits before setting MACT could therefore “be deeply misleading or even impossible.”
The defense of the cost-benefit analysis from IPI — which describes itself as “a non-partisan advocacy
organization and think-tank dedicated to improving the quality of governmental decisionmaking” — could bolster
EPA’s position not only in defending the MACT in the high court case, but following any potential adverse court
Supreme Court justices will review requests from industry and some states to reverse a 2-1 U.S. Court of
Appeals for the District of Columbia Circuit ruling from April that agreed with EPA that it did not need to consider
costs in deciding that it was appropriate and necessary to craft a utility MACT. The high court agreed to hear the
case on the sole question of whether EPA was wrong to not consider costs when it decided to launch the
Oral argument is set for March 25 in the utility MACT appeals filed as National Mining Association v. EPA, et al.,
Utility Air Regulatory Group (UARG) v. EPA, et al. and State of Michigan, et al. v. EPA, et al.
IPI, several states and environmentalists are backing EPA in the case through amicus briefs, but IPI’s defense
of the cost-benefit review of the rule could nevertheless help the agency following a remand or vacatur.
Should a majority of the high court either remand the rule to EPA for consideration of costs or vacate it for not
considering costs, sources have said the agency would likely use its existing cost-benefit review as the basis for any
response to such a ruling. IPI’s defense outlines the reasons why the agency could argue that it already has a sufficiently
robust, legally defensible analysis in place to satisfy the cost requirement and revive the MACT.
Some legal observers have argued that EPA’s correct analysis of costs and benefits when setting the MACT
itself is key, because it renders the cost consideration argument against the rule essentially moot. If the court finds
that EPA should have considered costs in its “appropriate and necessary” finding, which is a legal prerequisite to
development of a MACT, the court could vacate the MACT entirely, vacate it and remand it or remand without
In any of these scenarios, EPA would have to modify the finding, and would likely rely, to a large degree, on its
existing cost-benefit analysis for the MACT, which found that the health and environmental benefits of the rule are
between $37 to $90 billion per year, compared to estimated costs of $9.6 billion, sources have said.
Therefore, the question would be largely one of how much disruption would result from an adverse court ruling. For
the court to vacate the rule would seem unnecessary if its objection is that EPA failed to consider costs, when in fact
EPA did consider costs, albeit later in the regulatory process, some legal observers say.
If the court does reach the merits of the existing cost-benefit analysis, the strength of that analysis will be important.
Industry critics say EPA should not have relied on benefits from reducing fine particulate matter (PM2.5) to justify the
rule, because PM2.5 is not classed as a “hazardous air pollutant” (HAP) and hence is not the primary target of the rule.
Without the “co-benefit” of PM2.5 cuts, the rule’s costs would hugely outweigh its quantified benefits.
IPI counters that, “Federal agencies are required to take indirect benefits into account” by applicable executive
orders and in EPA’s case, the agency’s own guidelines. “EPA — under presidents of both parties and across four decades
— has consistently taken indirect benefits into account when evaluating Clean Air Act regulations.”
The rule’s detractors further ignore “the significant, unquantified benefits that agencies must consider,” IPI says in
its brief. EPA based its rule in part on health benefits of toxics reductions that it was unable to quantify, and these are
excluded from comparisons of costs and benefits made by industry opponents of the rule.
In a separate March 2 amicus brief supporting EPA, the American Thoracic Society underscores at length the
health benefits that flow from reducing the pollutants curbed by the utility MACT, including cuts in PM2.5. “Exposure
to PM2.5 is strongly linked to premature death,” the society says.
The Thoracic Society argues that it is within EPA’s legal discretion to decide it is “appropriate” to regulate air
toxics from power plants without consideration of cost.
The Constitutional Accountability Center, which describes itself as a progressive think tank and law firm, in its
March 4 amicus brief says that there is no reason to compel an interpretation of “appropriate” that involves consideration of costs. Both in ordinary usage and in the context of federal regulation, the term is used with broad scope to
describe situations where cost is not considered, and those where it is considered.
Also, the structure of the Clean Air Act, and specifically its other air toxics provisions, suggests that Congress
intentionally left EPA discretion on the matter, the group argues.
“Petitioners’ approach creates an asymmetry, requiring cost considerations when deciding whether to regulate
[electrical generating units, or EGUs] — even as EPA may not take costs into account when determining whether to
regulate HAP emissions from other sources or when deciding whether to remove a source of HAP emissions (including
EGUs) from the list of regulated sources,” the group says. — Stuart Parker
ENVIRONMENTAL POLICY ALERT — www.InsideEPA.com — March 18, 2015
Reversing Position, EPA Says ‘Flexible’ Air Permitting Will Not Avoid NSR
EPA is defending Texas’ “flexible” Clean Air Act permit program from advocates’ renewed legal attack that claims
the program allows facilities to avoid triggering potentially stringent new source review (NSR) requirements, a reversal
of the agency’s position several years ago that said the program could allow some NSR circumvention.
Environmentalists have long complained about the flexible permit program, which allows industrial facilities to
increase emissions from some emissions points so long as their whole plant complies with an overall cap. Advocates say
it allows facilities to illegally circumvent NSR permit requirements for “major” industrial sources, avoiding imposition
of tough pollution controls that would otherwise be required under the NSR program.
Major sources in this context are those emitting 100 tons per year (tpy) or 250 tpy or more of pollution, depending
on the pollutant. EPA previously agreed with the claims that the flexible permits program could circumvent NSR, and in
2010 issued a rule to disapprove the program, years after Texas introduced it.
EPA at the time claimed the language of Texas’ program was ambiguous as to whether major sources could use the
program to skirt NSR, and hence avoid installing expensive pollution controls.
However, the U.S. Court of Appeals for the 5th Circuit in a 2012 ruling in Texas v. EPA vacated EPA’s approval at
industry’s urging, finding that the program by its terms is limited exclusively to minor sources.
In response, EPA in July finalized an approval of a revised version of the program, receiving assurances from the
Texas Commission on Environmental Quality — the state agency with delegated federal air law permitting power —
that the flexible permit program cannot be used to avoid major source NSR.
Environmentalists then filed suit over EPA’s approval, and their pending 5th Circuit suit Environmental Integrity
Project, et al., v. EPA reiterates their long-running concerns about Texas’ program.
Although EPA in the prior litigation claimed there was ambiguity in Texas’ rules about some sources circumventing
NSR, environmentalists now say say there is none. The program clearly applies to both major and minor sources, they
say, and contravenes major source NSR requirements on several grounds.
For example, in a Jan. 9 brief, environmental groups say that the program applies an overall cap on allowable
emissions, not actual emissions, and that this could allow actual emissions to rise above the major source NSR threshold. Relevant documents are available on InsideEPA.com. See page 2 for details (Doc. ID: 179500)
Plant-wide emissions caps are based on maximum possible emissions from emission sources, not historical actual
emissions which are typically much lower, environmentalists argue. EPA in a federally-approved program applying
similar overall emissions caps, called plant-wide applicability limits, requires that caps be set using historic actual
emissions, to avoid the possibility of exceeding NSR limits.
Also, environmentalists argue in their brief, the Texas flexible permit program does not allow the necessary public
notice and comment opportunities for plant modifications.
Environmentalists argue that Texas’ definition of “modification” is problematic, as it does not deem a modification
to have occurred for the purposes of NSR unless the flexible permit emissions cap is exceeded — regardless of whether
the federal NSR cap is exceeded. An environmental source previously told Inside EPA that definitional differences
between EPA and Texas over what constitutes a “source” and what is a “facility” confuse this issue.
In their brief, environmental groups say that because of these issues, “the flexible permit program straightforwardly
eliminates certain key regulatory requirements of the federal Clean Air Act” and EPA must therefore disapprove it.
The groups insist that “Major sources, including large oil refineries and petrochemical plants, have had and
continue to hold flexible permits,” including Exxon Mobil’s huge Baytown refinery.
The Department of Justice (DOJ) in a March 2 brief, however, says that “EPA reasonably approved the
Flexible Permit Program as a minor New Source Review revision” to the Texas state implementation plan (SIP) for air
law implementation. To support its position that the permit program is permissible, DOJ in the brief cites the 5th
Circuit’s previous finding that the “Flexible Permit Program does not allow Major NSR evasion because it affirmatively
requires compliance with Major NSR.”
“In the Final Rule, the EPA repeatedly articulated, for the benefit of the public and future permittees, that the
Program is a minor NSR program and cannot be used to evade Major NSR requirements,” DOJ says.
DOJ further explains that, “facilities covered by a flexible permit can include major sources and sources undergoing
major modifications. Because facilities covered by a flexible permit have the potential to undertake activities subject to
Major NSR requirements, the Program requires the owner or operator to continue to comply with Major NSR regulatory
provisions when taking actions subject to Major NSR requirements.”
Further, the public participation provisions of Texas’ SIP are consistent with federal requirements, DOJ says,
despite environmentalists’ claims to the contrary. — Stuart Parker
ENVIRONMENTAL POLICY ALERT — www.InsideEPA.com — March 18, 2015
Advocates Raise Doubts Over SO2 Data Underpinning Major EPA Air Rules
Environmentalists are pursuing an Information Quality Act (IQA) challenge to EPA data on sulfur dioxide (SO2)
emissions that underpins parts of several major air rules including its Cross-State Air Pollution Rule (CSAPR) and
utility air toxics regulation, warning that recent agency statements might undermine data in those policies.
In a Feb. 23 request for correction under the IQA filed with EPA, the Chesapeake Climate Action Network (CCAN)
and Environmental Integrity Project (EIP) say that it is unclear whether the data at issue is accurate and reliable as
required under the data law. They warn that the problems they believe exist with the data mean that at least some major
air rules might be based on inaccurate data, which in turn could make those standards flawed. The request is available
on InsideEPA.com. See pag3 2 for details (Doc. ID: 179521)
“The accuracy of emissions monitoring data and the soundness of rules like [CSAPR] are central to EIP’s and
CCAN’s efforts to enforce emission limits at specific power plants and to ensure that EPA sets standards that meet the
requirements of the Clean Air Act,” according to the request for correction, recently posted to the agency’s website.
The IQA sets out criteria for the use and peer-review of scientific data in rulemaking actions, and industry groups
have recently suggested new legal strategies for trying to win a first-time judicial ruling allowing private plaintiffs
standing to challenge agency actions for failing to meet the information law’s criteria. Even though the IQA allows for
citizen petitions to address claimed violations, judges have also denied attempts to challenge petition responses under
the Administrative Procedure Act on the grounds that the challenged agency actions are not “final.”
While industry weighs new legal efforts to pursue IQA challenges to agency rules they say are too strict, EIP and
CCAN are raising data quality concerns about an exemption to an EPA emissions regulation.
The groups’ concern stems from EPA’s recent rulemaking revising parts of its utility maximum achievable control
technology (MACT) air toxics rule. In the reconsideration, EPA granted utilities an exemption from SO2 emissions
limits — used as a surrogate for reducing acid gas emissions — for a four-hour period during startup, and significantly
softened requirements for utilities to burn “clean” fuels such as natural gas when starting up.
Environmentalists take issue with EPA’s statement on the inability to adequately measure SO2 emissions from
power plants during startup and shutdown periods, and using that as the basis for the utility MACT exemption. They say
this appears to conflict with prior statements EPA has made in rules regarding data on SO2.
They say that earlier rules, including CSAPR and the acid rain emissions trading program, account for SO2 during
startup and shutdown emissions. For example, “In EPA’s longstanding Acid Rain program, measurement and monitoring
of emissions of SO2 from power plants — including SO2 emissions during startup and shutdown — is instrumental in
ensuring that mandated reductions in SO2 are achieved,” the groups say in the request.
“In numerous publications available on EPA’s website and in rulemaking for [CSAPR] . . . EPA has stated that
the SO2 emissions data reported by power plants under the Acid Rain program — which includes data covering
emissions during startup and shutdown — is complete and accurate,” they add.
Further, EPA has disseminated such SO2 emissions data through its Clean Air Markets program for use in EPA
emissions trading programs, which the agency has vouched for as accurate, the groups say. The Clean Air Markets
program oversees the agency’s emissions cap-and-trade efforts including CSAPR.
EIP and CCAN say in their request for data correction that despite EPA’s prior statements on having adequate SO2
data during power plant startups for CSAPR and other rules, in its MACT reconsideration “after adopting SO2 as a
surrogate for limiting acid gases from power plants, EPA indicated that plants cannot accurately measure emissions
(including emissions of SO2) during startup and shutdown.”
If EPA’s statements in the MACT revision rule are correct, “neither the Clean Air Markets data disseminated by
EPA nor EPA’s earlier statements regarding the accuracy of monitoring in the Acid Rain program can be accurate or
reliable, as required by the Data Quality Act and EPA’s accompanying guidelines,” the groups write.
If EPA’s emissions data is not reliable, this would undermine emissions trading programs such as CSAPR, which
EPA has fought to protect in protracted litigation. It also means EPA has violated its own Information Quality Guidelines established to implement the IQA, the groups claim. “EIP and CCAN request that EPA immediately resolve the
conflict between its dueling positions and clarify how its statements about the accuracy of monitoring during startup and
shutdown in the Acid Rain program are accurate and reliable,” the groups write.
Conversely, if the data cited under other programs are indeed accurate, this would appear to support environmentalists’ case against EPA’s regulatory exemption for periods of startup. CCAN and EIP have filed suit along with Sierra
Club in the U.S. Court of Appeals for the District of Columbia Circuit, in Chesapeake Climate Action Network, et al. v.
EPA, challenging EPA’s reconsidered utility MACT rule.
The three groups in that case argue that EPA’s exemption violated a Clean Air Act requirement for emissions
standards to apply at all times, and have raised as a concern the apparent inconsistency in EPA’s position regarding data
quality over SO2 emissions during facility startups and shutdowns. — Stuart Parker
ENVIRONMENTAL POLICY ALERT — www.InsideEPA.com — March 18, 2015
Utility Fights EPA Claims Of Air Law Violations In Suit Testing NSR’s Scope
A Michigan utility is fighting EPA’s claims that it violated Clean Air Act new source review (NSR) permit mandates
when it modified a power plant, urging a federal appeals court to uphold a district court ruling in the utility’s favor — a
decision testing NSR’s scope that the Justice Department (DOJ) has warned risks “eviscerating” the permit program.
In a recent reply brief in United States v. DTE Energy Corp. and Detroit Edison Company, pending in the U.S.
Court of Appeals for the 6th Circuit, utility DTE is defending against the agency’s claims that it failed to properly
project the emissions increases expected from the $65 million coal-fired power plant update it completed in 2010. EPA
says this failed projection meant the company did not trigger NSR permitting requirements even though it should have
done so. The brief is available on InsideEPA.com. See page 2 for details. (Doc. ID: 179440)
NSR aims to prevent pollution increases from new and modified facilities. The George W. Bush administration
pursued several efforts to revise the NSR program that were seen as weakening its requirements, but EPA has long
touted its years of NSR enforcement actions as successful, particularly against the utility sector.
Under the program, companies must install strict pollution controls if they trigger NSR permitting requirements.
EPA In June 2010 issued DTE a notice of violation (NOV) alleging that the company had avoided NSR permit review
for a “major” modification at its Monroe, MI, power plant that the company says was in fact a “routine” boiler component replacement. The agency then began an enforcement action against the company.
DTE successfully argued in the federal district court enforcement case that Bush-era 2002 NSR reforms changed
the program’s rules to bar consideration of preconstruction emission increase projections, and then said that the emissions increase at the plant was from increased demand, rather than the coal plant project.
U.S. District Court for the Eastern District of Michigan Judge Bernard Friedman in a 2011 ruling sided with DTE.
That decision prompted warnings from DOJ in a Feb. 17, 2012, brief in the long-running litigation that it could “eviscerate” the NSR program if other courts adopt the same approach by placing a prohibition on counting preconstruction
emissions projections in NSR reviews. The ruling could “potentially eviscerate Clean Air Act enforcement in the Sixth
Circuit,” DOJ argued.
The 6th Circuit has already heard one appeal in the case, when a three-judge panel of the court in 2013 ordered
Friedman to reconsider his 2011 original ruling. The parties to the suit then fought over the intent of that ruling at the
district court level, and over what Friedman was required to do when deciding the case.
In a March 2014 ruling, Friedman again ruled for the company, holding that EPA was limited to a “cursory” review
of DTE’s preconstruction emission projections, prompting the new appeal (Inside EPA, Oct. 10).
DTE says Friedman’s rulings and the 6th Circuit’s prior ruling mean that EPA cannot “second-guess” company
projections of emissions increases in order to determine if a project qualifies for NSR permitting.
EPA and environmentalists say the agency has the right to bring an enforcement action over such projections, but
Friedman held that EPA must wait until actual emissions are measured following construction to determine if an NSR
violation has occurred. But EPA says this is at odds with NSR being a preconstruction program.
DTE in its Feb. 27 reply brief rejects arguments made by EPA in the agency’s Dec. 23 opening brief in the current
round of litigation. In particular, DTE rejects EPA’s approach to the NSR permit program’s requirement that regulated
entities project all emissions “caused by” their proposed project.
The company argues this means that emissions growth resulting from an increase in energy demand, unrelated to the
project specifically, should not count, under a “demand-growth” exclusion.
EPA, however, says DTE underestimated emissions that would be “caused by” its project. But DTE says EPA again
“seeks to second-guess DTE’s projection — specifically DTE’s application of the causation requirement — to prove
that DTE ‘should have expected’ that the 2010 projects . . . would cause significant emissions increases . . . notwithstanding that emissions at Monroe Unit 2 have verifiably decreased after the projects.”
“This Court squarely rejected this approach to enforcement in its 2013 opinion, while allowing for limited actions
to ensure ‘at a basic level’ that DTE complied with the ‘specific instructions’ governing preconstruction projections,”
the company says, referencing the 6th Circuit’s prior ruling in the litigation.
“DTE considered ‘all relevant information,’ as the Government itself concedes, but the Government would place
different weight on certain factors than did DTE. That is second-guessing,” DTE says.
The company further argues against EPA’s request to the court for deference in its interpretation of its own
rules on NSR, under what is known as the Auer legal doctrine. “Deference to an agency’s interpretation of its regulations is not appropriate where the rules are unambiguous, and the 2002 NSR Reform Rules state unambiguously that a
project ‘is not a major modification if it does not cause a significant emissions increase,’” DTE says.
Rulings upholding agency policy interpretations that EPA cites to support its claim for deterrence are either not
relevant to the issue at hand or relate to EPA’s pre-2002 policy, although the 2002 policy is still in effect, DTE argues.
Nor did EPA make sufficiently specific allegations in its NOV, which merely alleged that DTE undertook a “major”
ENVIRONMENTAL POLICY ALERT — www.InsideEPA.com — March 18, 2015
modification that should have triggered NSR, DTE argues. The NOV should frame the scope of the subsequent enforcement action, DTE says. “Contrary to the Government’s suggestions, the NOV relates solely to the allegation that DTE
undertook a ‘major modification,’” and does not raise specific problems with emissions projections that the company
might correct, DTE says — a flaw in the enforcement process that it calls “fatal.”
Oral arguments have not yet been scheduled in the case. — Stuart Parker
EPA Rejects Claim Of Extended Compliance Period Weakening CISWI Rule
EPA is rejecting environmentalists’ claim that its decision to allow some facilities to demonstrate compliance with
its commercial and industrial solid waste incinerator (CISWI) air rule over a 30-day period in effect leads to weaker
emissions controls, fighting advocates’ bid for a court to force use of short three-hour compliance testing.
In a March 6 final brief on EPA’s behalf in litigation over the CISWI emissions rule, the Department of Justice
(DOJ) says the approach is reasonable and “[t]he use of a 30-day rolling average allows facilities to adjust to spikes
arising from differences in operating conditions that may occur even in a well-maintained unit.” Relevant documents are
available on InsideEPA.com. See page 2 for details. (Doc. ID: 179496)
Further, “use of continuous monitoring, coupled with long-term averaging, allows facility operators to detect high
emission levels in real time and to take whatever operational steps are required to ensure that the facility can maintain
compliance with the standard over the averaging period.
The total emissions over the averaging period cannot exceed that permitted by the standard,” according to the brief
in the CISWI litigation known as American Forest & Paper Association, et al. v. EPA.
DOJ also refutes claims that EPA should have used a three-hour “stack” compliance test, which measures the
amount of a pollutant being emitted from a unit. The CISWI emissions standards “are not based on an assumption that
compliance will be determined by stack tests,” DOJ says.
“While data from stack tests was the starting point for calculating the standards . . . EPA used statistical methods to
establish the standard at a level that represents what the average of the best performing sources achieve over the range
of normal operating conditions,” the brief says.
The “statistical methods” in question are known as the Upper Prediction Limit (UPL) or Upper Limit (UL).
Environmentalists have also targeted the UPL and UL in their litigation over the CISWI rule, as well as related pending
lawsuits over EPA’s maximum achievable control technology (MACT) air toxics rules for both “major” and “area”
source boilers.
EPA is required under the Clean Air Act to set MACT emissions limits for existing sources using the average
emissions of the top 12 percent of sources in a given source category — but environmentalists say the UPL and UL are
not averages. The D.C. Circuit has already questioned EPA’s use of the UPL before, ordering the agency to better
explain how the method comports with the air law’s “average” requirement in an August 2013 remand of a rule setting
MACT for sewage sludge incinerators in National Association of Clean Water Agencies v. EPA.
DOJ says EPA has fully responded to that remand and that EPA’s use of the UPL to account for variability in a source’s
likely future emissions is legitimate, countering advocates’ claims that it leads to an unlawfully weak rule. — Stuart Parker
Truckers Plan Supreme Court Appeal Of Preemption Suit Over State Air Rule
A group representing California construction trucking companies says it will petition the Supreme Court to overturn
an appellate ruling that upheld the state air board’s controversial diesel truck and bus emissions regulation on procedural
grounds, the latest bid by critics of the state’s mobile source rules to win federal preemption of the regulations.
A federal district court says the suit failed because it seeks to block the California Air Resources Board (CARB)
from implementing the rule, rather than challenging EPA’s approval of a Clean Air Act state implementation plan (SIP)
that included the rule — and a federal appeals court recently backed the district court’s decision. But the truckers plan
to tell the high court that even if the rule is allowed under the air law, it is barred under a separate federal statute.
In the case, California Dump Truck Owners Association v. Mary Nichols, the trucking group alleges that CARB’s
truck and bus regulation to lower diesel exhaust emissions — adopted in 2008 and amended several times over the
ensuing several years — is preempted by the Federal Aviation Administration Authorization Act (FAAAA).
The act prohibits states from enacting regulations “related to a price, route, or service of any motor carrier . . . with
respect to the transportation of property.” The truck group, now known as the California Construction Trucking Association, alleges that its motor carrier members would have to increase prices and alter their routes and services to offset the
costs of complying with the CARB regulation.
The Supreme Court, if it accepts the appeal, will have to resolve the fact that two controlling federal statutes — the
Clean Air Act and the FAAAA — are “in conflict,” says a source with the industry group. While CARB’s rule may be
ENVIRONMENTAL POLICY ALERT — www.InsideEPA.com — March 18, 2015
allowable under the Clean Air Act, it violates the FAAAA, “and the courts need to resolve that,” the source says.
CARB’s regulation generally requires heavy-duty diesel trucks to be upgraded with pollution filters and loweremission engines over certain time periods.
The trucking group filed its lawsuit against CARB in April 2011 in U.S. District Court for the Eastern District of
California, seeking to enjoin CARB from enforcing the regulation.
Several months later, EPA approved California’s SIP for achieving federal air quality standards, which included the
disputed truck and bus regulation.
As a result, the federal district court in late 2012 dismissed the suit, finding that it no longer had jurisdiction under
the Clean Air Act because EPA would be the rightful target of such litigation through a suit contesting the SIP approval,
and that such a challenge would need to be filed in a federal court of appeals.
The trucking group then appealed the district court’s ruling on procedural grounds to the U.S. Court of Appeals for
the 9th Circuit, arguing that the judge was in error.
But a three-person panel of the 9th Circuit in a March 3 ruling agreed with the district court. “The panel
affirmed the district court’s holding that [EPA’s] approval of the regulation as part of California’s [SIP] divested the
district court of jurisdiction under . . . the Clean Air Act,” the ruling states.
“The panel concluded that the suit, as a practical matter, challenged the [SIP] itself. Because the court of appeals
has exclusive jurisdiction over such challenges pursuant to” the Clean Air Act, “the district court lacked jurisdiction,”
says the ruling. The ruling is available on InsideEPA.com. See page 2 for details. (Doc. ID: 179431)
However, representatives of the trucking group argue that legal maneuvers by attorneys with the state and the
Natural Resources Defense Council, which intervened on behalf of CARB, thwarted proper judicial review of the case
over the past few years. — Curt Barry
EPA Puts Onus On Cities To Include Integrated Water Plans In CWA Permits
An EPA water official is challenging cities to incorporate integrated wastewater and stormwater plans into their
Clean Water Act (CWA) discharge permits, saying any perceived hesitancy from the agency to approve such plans in
permits and consent decrees is based on the choices made by specific municipalities.
When EPA works with municipalities on the plans — which aim to prioritize various CWA requirements based on
environmental impacts and affordability — “there’s a conversation about, ‘Here’s my plan’ and so there may be some
conversation we have about why you made this choice or what about this?” EPA Water Permits Division Director
Deborah Nagle told Inside EPA March 10. While some cities may interpret the agency’s questioning of proposed plan as
lack of interest in the approach, “it’s really about trying to figure out what is the right thing to do,” she said.
EPA continues to support the use of integrated plans, and regional offices “are 100 percent behind this,” but agency
approval of any specific plan is “not just a gimme,” Nagle said.
“The thing is, it’s all site specific. There may be conversations that might be, ‘why did you make this decision’?”
she added.
Nagle was responding to criticism from some municipalities and water utilities that the agency has not fully
embraced the integrated planning concept in permitting and consent decree enforcement decisions, despite publicly
encouraging the practice, which gives utilities flexibility in meeting infrastructure upgrade and water quality requirements. Integrated plans often include the use of green infrastructure to address combined sewer overflow (CSO)
discharges as well as considerations about the financial capability for municipalities and ratepayers, often allowing
communities to sequence costly improvement projects based on pollution reduction priorities.
EPA issued its first integrated planning framework in 2012. Although many integrated plans have been codified into
enforcement consent decrees, there have yet to be integrated plans incorporated fully into National Pollutant Discharge
Elimination System (NPDES) permits.
“Most people would rather have it through a permit. [Having it in] a consent decree is a reactive approach,” Nagle
told municipal leaders at a March 10 workshop at the National League of Cities Congressional City conference in
Washington, D.C. She added that she was “challenging”cities at the conference to finish their integrated plans to see
which could first complete an integrated plan and be the first to incorporate it into a permit.
She also highlighted five communities which have received a combined total of $335,000 in technical assistance for
integrated planning from EPA: Burlington, VT; Durham, NH; Onandoga County, NY; Santa Maria, CA; and Springfield,
MO — all of which focus on “ways to credit point versus nonpoint sources” of pollution.
Although municipal officials have made progress in working with EPA to get integrated plans codified into consent
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decrees, sometimes prior to creating new long-term control plans to reduce sewer overflows, many have said that some
EPA officials have been reluctant to approve and embrace the concept in their localities.
EPA Region 3 officials in early March notified the city of Lancaster, PA, that it would seek to enter into a consent
decree enforcement order to address its sewer overflows despite the city’s work on an integrated plan and the agency’s
prior praise of its long-term planning, including green infrastructure efforts. The city had been considering ultimately
putting its 25-year, voluntary long-term control plan to address CSO discharges into the Conestoga River into a formal
integrated plan, but municipal leaders say that the pact EPA seeks will cost it up to $400 million to implement.
“What is the message when even the good guys get penalties?” a source close to the city previously told Inside EPA.
An EPA Region 3 spokesman said the agency supports Lancaster’s efforts to use green infrastructure to control its
CSOs; “however, more work needs to be done to effectively control sewer overflows.”
And municipal officials at the U.S. Conference of Mayors’ annual meeting in January spoke of reluctance from
some EPA officials to move forward on integrated planning despite the agency and water industry touting a novel
integrated plan in Lima, OH, calling that city’s $150 million consent decree — which requires the city to more than
double its treatment capacity from 30 million gallons per day to 70 million gallons per day and reduce its CSO overflows to five or fewer over 20 years — the nation’s “first fully integrated plan.”
At the meeting, Lima Mayor David Berger and Akron, OH Mayor Donald Plusquellic said EPA Region 5 was an
impediment during integrated planning processes, and cautioned other mayors that EPA regional offices could continue
to present hurdles.” Plusquellic is currently asking a federal court to re-open Akron’s CSO consent decree, arguing that
EPA did not allow the city to integrate its requirements to allow for more green infrastructure alternatives to sewer
improvements, even though it had allowed such developments in other cities’ consent decrees. EPA enforcement chief
Cynthia Giles told the city that the agency was open to modifying the existing consent decrees “when there are alternative proposals that can achieve the same or better protection at lower cost, or where the cost of implementing the
requirements of the consent decree has changed so significantly that a different schedule for completion is necessary.” — Amanda Palleschi
Senators’ Opposition To EPA FY16 Budget Cuts May Spur Fight With House
Democratic and Republican senators are opposing EPA’s proposed fiscal year 2016 budget cuts to major accounts
including its clean water state revolving fund (SRF), and at least one GOP senator is calling for maintaining existing
overall agency funding levels, setting up a clash with the House that is seeking to cut EPA’s budget.
At a March 4 Senate Environment & Public Works Committee (EPW) hearing, several senators who pushed back
on some of the proposed funding cuts nevertheless also faulted major pending agency policies. EPW Chairman Sen.
James Inhofe (R-OK) and other Republicans reiterated lingering concerns about EPA’s proposed greenhouse gas (GHG)
rules for power plants, as well as a pending agency rule to define Clean Water Act (CWA) jurisdiction.
EPW is not an appropriations committee but the comments from the senators could offer some insight into how the
Senate Budget Committee crafts a pending resolution on the FY16 budget, which the Senate Appropriations Committee
will then use as the framework for developing funding bills, including EPA’s budget legislation.
“I think EPA this year should be flat spending, or no more than a 2.5 percent increase,” EPW member Sen. Jeff
Sessions (R-AL), who also sits on the Senate budget panel, said during the hearing.
That idea could prompt a conflict with GOP members of the House Appropriations Committee’s interior panel, who
said at a Feb. 28 hearing on EPA’s budget proposal that they will reject increases to the agency’s budget sought by the
administration. They oppose the agency using the funds to craft water and climate rules they say are overreaching —
though the lawmakers said they might still agree to boost EPA’s water infrastructure funds.
EPA is seeking a $452 million boost above its FY15 budget, from its current $8.139 billion budget up to $8.591
billion in FY16. But the agency is also proposing to cut overall SRF funding — which supports state water infrastructure projects — by $53 million and to realign the program’s clean water and drinking water accounts.
Under the administration’s proposal, the clean water SRF would drop by $332 million, taking it down to $1.116
billion compared to its current level of $1.448 billion, while the drinking water SRF would receive a $279 million boost,
taking it from its current level of $906 million up to $1.186 billion.
At the EPW hearing, both Democratic and GOP senators attacked the agency’s SRF plan. Inhofe criticized
EPA Administrator Gina McCarthy for proposing a cut to the revolving funds while continuing to pursue the CWA
jurisdiction rule, which EPA says will resolve uncertainty over the law’s scope.
Sen. Ben Cardin (D-MD) said at the hearing that the agency’s clean water infrastructure fund, which supports
wastewater infrastructure, should not be cut to support drinking water spending.
“You need a basic program that at least is there to provide the fundamental commitment by the federal government .
. . We need modern drinking water capacity, but if we don’t deal with wastewater we’re going to have problems with
ENVIRONMENTAL POLICY ALERT — www.InsideEPA.com — March 18, 2015
clean water,” Cardin said.
In response, McCarthy said “difficult choices need to be made” and that “the need for drinking water is even more
severe than the need for wastewater” funding.
She also highlighted new infrastructure spending programs, the Water Infrastructure Finance and Innovation Act,
which Congress authorized in 2014, and a recently announced Water Finance Center, as well as public-private partnerships, which she said would allow EPA to “target SRF appropriately.”
Inhofe also said in his opening statement that he opposes EPA’s proposed cuts to the Diesel Emission Reduction
Grant program, which would drop from $30 million in FY15 to $10 million in FY16.
Sen. Tom Carper (D-DE) is also pressing to fully fund the grants, saying in his opening statement that, “Cutting
DERA, which has shown a consistently high return — for every $1 invested, we get more than $13 in health and
economic benefits — just doesn’t make sense. I look forward to today’s discussion and working with my colleagues to
ensure effective EPA programs like DERA are funded at the appropriate levels.”
Along with budgetary concerns, GOP senators used the hearing to reiterate their opposition to several major
EPA rules, most prominently climate regulations and the CWA jurisdiction rule.
McCarthy responded to questions from Inhofe that “we are not interested” in staying the rule, but that EPA has
“other processes for us to work with states” if they choose not to implement the rules directly.
Inhofe’s question came after Senate Majority Leader Mitch McConnell (R-KY) published an opinion piece March 4
in the Lexington Herald-Leader that says states should refuse to participate in the clean power plan.
“Think twice before submitting a state plan — which could lock you in to federal enforcement and expose you to
lawsuits — when the administration is standing on shaky legal ground and when, without your support, it won’t be able
to demonstrate the capacity to carry out such political extremism,” McConnell wrote.
Speaking to reporters after the March 4 hearing, McCarthy declined to comment directly on McConnell’s article but
said, “EPA has been working with the states well before we put pen to paper on the rule. That will not change. We
continue to have tremendous dialogue with the states, including the state of Kentucky.”
Sen. Shelley Moore Capito (R-WV) also attacked the FY16 budget proposal for floating a $4 billion incentive fund
that would support grants to states that exceed GHG reduction targets. EPA’s request for such a large figure “tells me
something about how explosively expensive this plan will be across the country,” she said. — David LaRoss
Coal Industry Urges Supreme Court To Reverse CWA Permit ‘Shield’ Ruling
Coal industry groups are urging the Supreme Court to overturn a federal appeals court’s decision that limited a Clean
Water Act (CWA) “shield” against legal liability under a general permit for stormwater, arguing the ruling conflicts with
another appellate decision and sets a precedent that would undermine certainty for dischargers and regulators alike.
In a March 2 cert petition, the coal firm Aurora Energy Services and the Alaska Railway Company say the high
court should reverse the U.S. Court of Appeals for the 9th Circuit’s ruling in Alaska Community Action on Toxics
(ACAT), et al. v. Aurora Energy Services, LLC, et al., which held Aurora liable for releases of solid coal from its
Seward, AK, loading facility on the grounds that the general permit’s list of allowed discharges did not include coal. The
petition is available on InsideEPA.com. See page 2 for details. (Doc. ID: 179304)
“The Ninth Circuit holding ignores the statutory mandate that a permittee in compliance with its permit is not liable
under the Clean Water Act, even for discharges not explicitly covered by a permit. Thus, contrary to the other circuit
courts, the Ninth Circuit leaves permittees exposed to liability, even when both they and the permitting authority agree
that no further permitting is required,” the petition says.
And it continues that the 9th Circuit ruling is in conflict with a later decision by the 6th Circuit, which appeared to
adopt a more lenient test for determining when permit holders can be sued or otherwise face enforcement action for
discharges not addressed in their permit terms.
Under the CWA, a permit holder is not liable for discharging pollutants within the limits set by a valid National
Pollutant Discharge Elimination System (NPDES) permit — a provision commonly known as the “permit shield.” But
environmentalists and EPA have lately pressed courts to narrow the conditions where the shield protects dischargers that
release pollutants not specifically addressed in their permits.
In ACAT, a unanimous panel 9th Circuit held that the terms of EPA’s multi-sector general permit (MSGP) only
protects facilities from liability for discharges of stormwater, with a short list of explicitly enumerated exceptions for
non-stormwater releases that does not include coal spillage. Therefore, the court said, Aurora was liable for its discharges of coal.
But industry argues in the March 2 petition that EPA “clearly” was aware of coal spillage at the Seward facility
when it granted permit coverage, thanks to inspections performed by state and federal regulators years before, and
tacitly acknowledged that those releases were allowed by the permit. Therefore, it says, the decision sets a precedent for
ENVIRONMENTAL POLICY ALERT — www.InsideEPA.com — March 18, 2015
ignoring similar facts in other cases.
“Rather than placing responsibility on the permitting authority to specifically call out and restrict those disclosed discharges that require permit limits, the Ninth Circuit approach holds permittees liable for all discharges not affirmatively
discussed in the permit, regardless of the agency’s contemplation at the time the permit was issued,” the petition says.
It continues that the 9th Circuit’s approach to permit construction “treats the terms of the permit as changeable, and
thus deprives permit holders of any certainty regarding their operations,” as well as allowing courts to ignore the permit
writers’ intent.
At issue is the application of the landmark 4th Circuit decision in Piney Run Preservation Association v.
County Commissioners of Carroll County, MD. There, the 4th Circuit said a permittee’s discharge of a pollutant does
not violate the CWA provided that the express terms of the permit are obeyed and the pollutant was “within the reasonable contemplation” of the regulator at the time the permit was granted.
At the time ACAT was decided, there had been no rulings to clarify how the test applies to the general permitting
process, where facilities can apply for coverage years after a permit was written. ACAT was seen as an opportunity for a
court to give that clarification, but the 9th Circuit instead ruled based on the language of the MSGP rather than a
“reasonable contemplation” analysis.
But the cert petition says the appellate court’s decision nonetheless conflicts with the 6th Circuit’s Jan. 27 ruling in
Sierra Club v. ICG Hazard, which applied the Piney Run test to a general permit and ruled for industry. That court held
that mining company ICG Hazard’s compliance with a CWA general permit shields it from citizen suit enforcement,
even though the mine’s discharges exceeded water quality standards for selenium.
The 6th Circuit ruling said that even though regulators were unaware of circumstances at the specific mine at issue,
when they crafted the permit, the state “knew at the time it issued the general permit that the mines in the area could
produce selenium,” the ruling says.
However, Senior Judge Gilbert S. Merritt Jr. in a dissenting opinion in the 6th Circuit ruling said the decision
“turn[s] the Clean Water Act on its head” by giving effect to a permit on the grounds that it “tacitly authorizes toxic
discharges of selenium” in excess of state standards.
Industry in the March 2 petition seeks to counter that argument as well by invoking a 2013 decision by the 7th
Circuit, Wisconsin Resources Defense Council v. Flambeau Mining Co., which held that the mining firm could still
invoke the permit shield even if state regulators erred in issuing the facility’s NPDES permit.
“Applied to this case, the Seventh Circuit holding would instruct that, regardless of how one parses the language of
the Multi-Sector Permit, the permitting agency’s determination that the Facility is covered would be sufficient to shield
the permit holder from Clean Water Act liability. Said otherwise, EPA’s authorization of the known discharge of ‘nonstormwater’ coal would be enough to prevent an attack from a third party” even if that authorization was improper, the
petition says. — David LaRoss
Mining Industry Warns Of ‘Confusion’ From EPA’s Draft Stormwater Permit
The mining industry is calling for EPA or White House officials to rework requirements for the sector in the agency’s
long-pending updated general permit for industrial stormwater discharges, saying that the draft permit improperly applies
construction mandates to mining activities and would create a regulatory conflict if finalized without changes.
In a letter to Kevin Weiss, acting head of EPA’s municipal wastewater office, the National Mining Association (NMA)
urges the agency to overhaul its criteria for “mining activities” in the multi-sector general permit (MSGP) for stormwater, now
under review at the White House Office of Management & Budget (OMB), and implies that it would sue over the rule as
drafted. Relevant documents are available on InsideEPA.com. See page 2 for details. (Doc. ID: 179375)
The letter — which was also delivered to OMB during a Feb. 12 meeting on the MSGP — says EPA’s draft permit, which
the agency published in 2013, requires mining facilities to adhere to technology-based effluent limits crafted for the construction industry rather than tailoring limits for the mining sector, and adopts a definition of “mining activities” that is narrower
than the one applied by other EPA rules and the Surface Mining Control and Reclamation Act (SMCRA).
“To depart from these established boundaries in the context of the MSGP creates needless and unsupported confusion. In light of the need for consistency in permitting and field operations, it is particularly important for EPA to use an
analogous definition in the MSGP,” NMA says in its letter. The mining association’s letter was the only written material
presented at the Feb. 12 OMB meeting, but representatives of other industry groups, including Monsanto, Murray
Energy, and coal firms, also attended.
Additionally, the letter continues, the draft permit “has arbitrarily incorporated” standards designed for the agency’s
construction effluent limitation guidelines (ELG) into the mining sector permit without the scientific or economic
justification required by the Clean Water Act — charges that could support a future legal challenge to the permit.
“Because the scope of [the construction ELG] did not include the mining industry and EPA’s Office of Science and
ENVIRONMENTAL POLICY ALERT — www.InsideEPA.com — March 18, 2015
Technology did not consider the applicable statutory factors like economic achievability and technical feasibility as
applied to the mining industry or mine sites, EPA cannot now apply” its standards to mining operations, the letter says.
The MSGP directly regulates stormwater runoff from industrial facilities in states where EPA is the permitting authority
and serves as a model elsewhere — though some states, such as California, have declined to base their permits on EPA’s.
EPA proposed the revised MSGP Sept. 27, 2013, with modifications to the existing permit including new discharge
limits for an array of industry sectors — many of which NMA and other groups asked the agency to roll back in their
public comments.
Among other objections, NMA in its earlier comments also raised concerns over the construction limits,
arguing in Dec. 23, 2013, comments that the scientific record for the proposed limit “reflects no assessment of the costs
and feasibility of the proposed ELGs for any mining related activities at mining sites. Simply put, it is inappropriate to
incorporate those requirements here.”
NMA and other industry groups also objected to EPA’s proposal to narrow the “permit shield” that protects facilities from liability for their discharges provided they comply with the permit terms. The draft MSGP would deny that
protection for any discharges not specifically authorized by the permit — which many comments said would drastically
weaken the Clean Water Act (CWA) shield for covered entities by denying them any protection for discharges not
specifically authorized by the permit.
The proposed revisions tie in to ongoing litigation over the scope of permit shield protections for discharges of
pollutants neither explicitly allowed nor explicitly forbidden in a permit, under both the MSGP and other permits, in
which EPA has generally sided with environmentalists to argue in favor of a narrower shield.
Most recently, coal and railway companies petitioned the Supreme Court to review a decision by the U.S. Court of
Appeals for the 9th Circuit that the current MSGP terms do not protect facilities from liability for releases of solid coal, in
Alaska Community Action on Toxics (ACAT), et al. v. Aurora Energy Services, LLC, et al. Aurora and its allies claim in the
March 2 petition for certiorari that the decision radically weakens permit protections and conflicts with other circuit rulings.
Meanwhile, industry won a favorable ruling on the permit shield from the 6th Circuit in Sierra Club v. ICG Hazard,
where a divided panel of the court held that mining company ICG Hazard’s compliance with a CWA general permit shields it
from citizen suit enforcement, even though the mine’s discharges exceeded water quality standards for selenium.
Comments on the 2013 proposal also asked EPA to reverse a new bar on “discharges to” a site regulated by the
federal Comprehensive Environmental Response, Compensation & Liability Act (CERCLA) — also known as the
Superfund law — from seeking MSGP coverage, “unless the applicable EPA Regional Office is first notified and has
determined that the facility is eligible for permit coverage.”
But industry groups and the Navy claimed that it is nearly impossible to guarantee that a facility near a Superfund site
does not discharge at least part of its stormwater to that site, even if there is no direct link between the two. — David LaRoss
Under Settlement, EPA Steps Up Oversight Of State’s CWA ‘Areawide’ Plans
EPA is beginning to implement a new settlement agreement that requires it to closely scrutinize Massachusetts’
plans for reducing pollution in areas with “substantial” water quality problems, paving the way for direct federal
oversight of a Clean Water Act (CWA) program that has largely been left to states, and which environmentalists say has
been neglected for years.
In Feb. 25 letters to Massachusetts Department of Environmental Protection (MassDEP) chief Martin Suuberg, EPA
Region 1 Administrator Curt Spalding urges the state to quickly update and implement its CWA “areawide” pollutionreduction plans in order to comply with the agency’s Feb. 13 settlement with the Conservation Law Foundation (CLF)
requiring the agency to ensure state and local officials are following the plans. Relevant documents are available on
InsideEPA.com. See page 2 for details. (Doc. ID: 179370)
“There is a lot to be done. In part it’s up to municipal governments to decide how they’re going to proceed, on a
watershed-by-watershed basis, to put these plans into practice. It’s been ongoing, but the rubber is meeting the road
now,” says a CLF source.
The settlement resolves, at least temporarily, CLF, et al. v. EPA, which was before the U.S. District Court for the
District of Massachusetts. In the suit, the environmentalists claimed that when EPA reviewed and approved the state’s
disbursements of state revolving fund (SRF) money, the agency was implicitly affirming that the loans met the goals of
state-crafted areawide plans, but failed to actually review or require updates to the 30-year-old cleanup programs.
EPA agreed to settlement talks after a 2013 ruling from Judge Mark L. Wolf that despite the agency’s argument that
adopting and enforcing areawide plans should be considered solely a state duty, “EPA does have a responsibility for
determining whether a state is, in fact, complying with that obligation.”
Wolf never ruled on whether the agency improperly approved Massachusetts’ SRF spending without regard for the
success of its cleanup plans. However, CLF has the option to resume litigation and seek a decision on the merits —
ENVIRONMENTAL POLICY ALERT — www.InsideEPA.com — March 18, 2015
which if upheld could lead to a precedential decision extending beyond Massachusetts — if MassDEP and EPA fail to
meet a Sept. 15 target for approving a revised areawide plan for the Cape Cod watershed.
If EPA is forced to begin enforcing the plans more actively in other jurisdictions, it could be a significant step in the
regulation of some nonpoint sources of pollution — such as return flows from irrigated agriculture and runoff from
manure disposal areas. Section 208 of the CWA, which mandates areawide plans, also provides little-used authority to
restrict nonpoint sources, despite the fact that EPA is not generally authorized to regulate them directly.
Key to the progress in updating the plans will be the creation of “waste treatment management agencies” responsible for implementing the areawide plans on a local level. Spalding in his letters to Suuberg says the state should
submit a revised plan for approval, including a list of designated agencies, by June 15.
“This timeframe for submission of the certified Plan Update and accompanying designations to EPA is not only
important given the desire of stakeholders to expeditiously address ongoing nutrient water quality impairments in Cape
Cod embayments, but will also help carry out representations made by the MassDEP and the [Cape Cod] Commission to
the federal court in connection with” the CLF litigation, one letter says.
States are required under section 208 of the CWA to identify discrete areas with “substantial water quality
control problems,” and then craft EPA-approved areawide plans for reducing pollution in those identified areas with an
eye toward reducing pollution within 20 years. The plans must designate waste treatment management agencies that are
responsible for some aspects of implementation, such as the construction of new infrastructure.
“The designated agencies are from an area of the statute that I don’t think has seen much attention for decades,” the
CLF source says, adding that municipalities will have to decide whether to create “[s]ome sort of separate entity that can
borrow to build infrastructure,” or to “figure out a way to solve it as municipalities — in some instances by going it
alone, or when to solve a problem in a watershed, you need more than one municipality to be on board.”
Although the water law requires states to create areawide plans and seek federal approval, EPA has not required
states to update them in the following years, arguing in the litigation that after a plan is crafted and submitted “[t]here
simply is nothing in the statute that requires EPA to affirmatively seek out annual updates or to make annual reapproval
decisions in the absence of a submission by the State or local planning authority.”
CLF argued to the district court that section 208 requires EPA to review and approve the plans every year, regardless of whether the state has updated them, citing a passage that reads, “Areawide waste treatment management plans
shall be certified annually by the Governor or his designee (or Governors or their designees, where more than one State
is involved) as being consistent with applicable basin plans and such areawide waste treatment management plans shall
be submitted to the Administrator for his approval.”
Massachusetts first developed an environmental impact statement for a section 208 areawide plan for nutrient
pollution in Cape Cod in 1978, and EPA has not reviewed that plan since. EPA, however, has conducted annual reviews
of Massachusetts’ SRF — reviews that CLF claimed are arbitrary and capricious because the agency did not consider
whether the SRF funds appropriately furthered the nutrient reduction goals of the areawide plan.
EPA and CLF originally tried to resolve their differences through settlement talks before briefing began, but the effort
drew strong opposition from several members of Congress, who charged that the agency and environmentalists were pursuing
a “sue-and-settle” approach that would ultimately provide EPA with broader authority over nonpoint sources.
The lawmakers called on EPA to defend itself against the lawsuit instead of settling and the parties later announced
that they could not resolve their differences and would proceed to trial. — David LaRoss
Groups Warn Northwest Water Trading Guide Violates CWA, EPA Policy
Environmentalists are urging EPA Region 10 to remove its endorsement of a draft water quality trading guidance
developed by Pacific Northwest states and two private organizations, warning the guide’s recommendations run contrary
to current agency policy and the Clean Water Act and, if finalized, will lead to litigation.
At issue is a set of draft recommendations released last August by Idaho, Washington, Oregon, the Willamette
Partnership and the Freshwater Trust that is intended to serve as a model for the states in developing their water quality
trading programs. EPA Region 10 participated in the discussions that led to the guidance and formally endorsed the
document. The parties plan to finalize the recommendations later this year.
“We believe the regional recommendations could result in the states developing regionally consistent and robust
guidance to help ensure that water quality trading programs have the quality, credibility, and transparency necessary to
ensure water quality improvements are achieved,” Daniel Opalski, director of Region 10’s Office of Water and Watersheds, wrote in an Aug. 7 letter to the Willamette Partnership.
But in a Feb. 20 letter to Opalski, the Northwest Environmental Advocates and the Northwest Environmental
Defense Center raise concerns about how the recommendations were developed and their substance. The groups say
Region 10 “has endorsed guidance that is inconsistent with federal law and with EPA’s national policy on water quality
ENVIRONMENTAL POLICY ALERT — www.InsideEPA.com — March 18, 2015
trading. For this reason, we ask that Region 10 remove the agency’s name from the Recommendations and cease to
participate in its finalization, scheduled for September 2015.” Relevant documents are available on InsideEPA.com. See
page 2 for details. (Doc. ID: 179455)
For example, the groups are critical of the document’s characterization of waterbody cleanup plans, known as total
maximum daily loads (TMDLs), and their role in setting baselines for the development of nonpoint source credits that
can be purchased by point sources to meet discharge limits.
TMDLs establish wasteload allocations for point sources, which serve as the basis for water quality-based effluent
limits in National Pollutant Discharge Elimination System (NPDES) permits, “and the wasteload allocations are based
on expected reductions of pollutants by nonpoint sources,” the groups say. “Therefore, just as NPDES permits must use
the wasteload allocation to set the water quality-based effluent limits, the load allocations must be used to establish the
baseline of nonpoint source controls used for trading.”
But the guidelines only give “passing lip service” to the regulatory role played by TMDLs and would result in
pollution reductions less than what is required by a TMDL. If regulatory agencies allow a trade that is inconsistent with
a TMDL, “the goal of the TMDL, and the Clean Water Act in general, will not be met because the permitting system
will fail to restore the waterbody,” the groups say.
Furthermore, the recommendations “simply muddy the water by asserting that the only TMDL load allocations that
must be taken into account for NPDES permitting are those that establish a specific load allocation for each individual
land owner or an allocation that has been translated into a rule,” the letter says. “TMDL load allocations do not need to
be turned into anything at all in order to have legal significance for permitting. It is quite inconceivable that EPA
believes that the Recommendations accurately reflect the law in this regard. For this reason it is not surprising that the
Recommendations are inconsistent with EPA’s national trading guidance.”
The groups say that while they may not agree with every aspect of EPA’s national trading guidance, “it does
attempt to give credence” to the CWA’s legal requirements. “In contrast, EPA Region 10’s endorsement of this Regional
Recommendations guidance—crafted by vested interests and states with a history of illegal trades—will likely encourage states to establish trading rules and to issue NPDES permits that fail to comport with the law. The result will
likely— predictably and inevitably—be litigation, litigation EPA could have prevented,” the letter says.
In addition to taking issue with the substance of the guidance, environmentalists are concerned about how it was
An informed environmentalist source says the collaboration was “inconsistent” with public participation requirements in the CWA and EPA policy in developing guidance. EPA essentially “shut out” the public from the guidance
development while allowing “vested” third parties a prominent seat at the table, the source says, referring to the
Willamette Partnership and the Freshwater Trust, which are both involved in water quality trading.
“When EPA establishes guidance it generally does that by itself with input from states or with input from everybody. . . . I’ve never heard of a situation where vested interests were involved and everybody else was excluded,” the
environmentalist source says. “With all the talk of transparency that makes headlines, . . . how much less transparent can
you be when you have a negotiation behind closed doors?”
It’s “a terrible precedent,” the environmentalist source says, that could result in an inadequate trading rules throughout the
region by allowing the nonprofits “an unprecedented level of involvement” over the standard on which trades are set.
For example, the Willamette Partnership helps land managers to track, account and trade in multiple types of
ecosystem trading programs. The environmentalist source says the nonprofit organization could benefit from a lower
trading threshold that gives credit to a larger number of practices.
NAS Panel Weighs Potential Spill Response Rule Changes For Oil Sands
A National Academy of Sciences (NAS) panel probed EPA and other federal agencies during a March 10 meeting
on whether any data gaps are impeding responses to spills of diluted bitumen (dilbit), a sticky oil sands-derived crude
oil mixed with gas condensate, as the panel weighs whether it should recommend revising spill and cleanup regulations
to better respond to the properties of dilbit.
A key question before the ad-hoc NAS committee is whether the properties of dilbit differ significantly from those
of other crude oils commonly transported through pipelines throughout the United States to warrant modifications to
regulations covering spill response plans, spill preparedness or cleanup, according to the panel’s statement of task.
The panel began its work, titled “Effects of Diluted Bitumen on the Environment: A Comparative Study,” last
August and expects to finalize a report by January. The Department of Transportation (DOT) is sponsoring the study.
Bitumen is a heavy crude oil derived from Canadian oil sands, and because it cannot flow efficiently through
pipelines, it is mixed with diluents for pipeline transport and becomes diluted bitumen, or dilbit, according to the
American Petroleum Institute’s (API) website. Diluents are typically natural gas condensate, naphtha or a mix of other
ENVIRONMENTAL POLICY ALERT — www.InsideEPA.com — March 18, 2015
light hydrocarbons, API says.
The work comes as diluted bitumen is increasingly being transported through pipelines in the United States,
according to environmentalists who have sought stricter EPA and DOT rules for pipelines that carry tar sands-derived
oil. They argue in a 2013 petition to EPA and DOT that existing standards are too weak to protect wildlife, habitats and
water supply due to the unique risks of “sticky, corrosive” tar sands.
The NAS panel heard from EPA, Coast Guard and Pipeline & Hazardous Materials Safety Administration
(PHMSA) officials, among others during its March 9-10 meeting in Washington, DC. EPA officials primarily made
references to their experiences with the 2010 spill in Marshall, MI, where an Enbridge Energy Partners tar sands
pipeline burst open and spewed more than 843,000 gallons in an open field. The oil eventually flowed into the
Kalamazoo River after operators did not shut down the pipeline for more than 17 hours. Health officials identified 145
people in the area who reported illness associated with the leak, and the cleanup costs are estimated at $725 million.
NAS panel member Robert Sussman — who was a senior policy advisor to EPA earlier in the Obama administration — asked the federal agency representatives before the panel about the capability of measuring submerged oil in
sediment and other ecological components. Due to its composition, dilbit generally sinks in spills, environmentalists say.
Dan Capone, with EPA contractor Mannik Smith Group, said that at the start of the Enbridge spill, EPA
knew very little about how to measure or quantify the submerged oil, but has learned much in the four and a half years
since. The agency developed forensic fingerprinting of the specific oil spilled, part of which looked at the quantity of
spilled oil remaining in the river system after the first two years of cleanup. According to an EPA 2013 fact sheet, the
agency estimated that 180,000 gallons of oil, plus or minus 100,000 gallons, remained in the river bottom sediment.
Capone said the large variability was due to the number being based on 105 cores collected throughout 40 miles of the
river, and said a more recent estimate is lower.
But the agency still lacks plans for how to deal with oil that is no longer floating. When asked how EPA’s oil
response training program trains to deal with that situation, EPA environmental scientist Greg Powell replied, “Right
now nothing.”
Panelist David Valentine, with the University of California, Santa Barbara, asked the federal agency representatives
how important it is to know something about the physical and chemical properties of a spilled oil, and whether they, as
responders, know a sufficient amount about dilbit, as compared to other crude oils, to respond effectively.
Powell replied that more specific information is needed from the safety data sheets companies provide. He requested that the panel “implore” companies to better describe the oils — all oils, not just heavy oils like bitumen — on
their safety data sheets in order to enable faster response by agencies.
In response to a later question on whether responders sought more detailed chemical property information in the
Enbridge spill, Capone noted that the initial safety data sheet supplied by Enbridge was not the correct one, although
that was later rectified.
Among the early challenges with the spill was determining how much benzene was in the dilbit, Capone said. It is a
“huge” public and worker safety issue, and EPA spent a large amount of time collecting air monitoring and sampling
data there and whether an evacuation was warranted, he said.
At the end of the panel discussion, the committee’s study director, Douglas Friedman, asked the federal agencies
what additional pieces of information — if limited to just a handful or two — would they want on dilbit for making
decisions related to spill response.
Coast Guard Commander Joseph Loring said a key piece of data would be to know how long the substance will
float before it sinks — whether that is hours, days or weeks. While he said he recognizes that would likely be very
dependent on the diluent and weather, “that would be a huge piece of information.”
Powell responded that a more comprehensive safety data sheet would be a significant benefit.
In related news, environmentalist law firm Earthjustice is asking EPA, on behalf of several environmental and
citizen groups, to deny a request by industry organizations to extend the public comment period by 90 days for a
pending EPA oil spill response rule. Earthjustice says revisions to the rule are long overdue, and instead a 30-day
extension to the already 90-day comment period should be sufficient. Earthjustice’s comment letter is available on
InsideEPA.com. See page 2 for details. (Doc. ID:179671)
The comment period is currently running until April 22.
The request relates to EPA’s long-awaited proposed revisions to its National Oil and Hazardous Substances Pollution Contingency Plan’s (NCP) Subpart J Product Schedule. Under the revisions, EPA is proposing to strengthen
requirements related to the use of chemical and biological agents, including dispersants, applied in the cleanup of oil
The oil and energy exploration industries have asked for a longer extension, saying the proposed revisions “are very
complex and technical and could have significant business impacts to American energy development.”
But Earthjustice cites the long wait for the revisions as support for a shorter extended comment period.
ENVIRONMENTAL POLICY ALERT — www.InsideEPA.com — March 18, 2015
Asbestos Seen As TSCA Reform Test For EPA’s Power To Ban Chemicals
Newly unveiled Senate bills to overhaul the Toxic Substances Control Act (TSCA) are highlighting EPA’s inability
to ban asbestos under the current law, making the potential for an asbestos ban a key test for the extent to which reform
legislation should give the agency new authority to prohibit harmful substances from the marketplace.
“The true test of TSCA reform ought to be whether EPA can quickly ban asbestos” with new authority in a TSCA
reform bill through revisions to the law’s section 6, which deals with regulation of hazardous chemical substances and
mixtures, one environmentalist says. TSCA reform legislation introduced March 12 by Sens. Barbara Boxer (D-CA) and
Ed Markey (D-MA) would explicitly authorize and require EPA to quickly ban asbestos.
Industry sources, however, say that a reform bill does not need a specific provision requiring EPA to expedite action
on asbestos, and that a competing bipartisan bill introduced March 11 by Sens. David Vitter (R-LA), Tom Udall (DNM) and others will address concerns about section 6 that frustrated an EPA ban on the substance.
The U.S. Court of Appeals for the 5th Circuit in 1991 struck down EPA’s attempt to ban asbestos — a known
carcinogen — under section 6, finding in Corrosion Proof Fittings v. EPA that the agency had not met its burden of
proof to establish the chemical’s risk could not be reduced by any other regulatory means.
Since that ruling, EPA has never proposed a complete prohibition on another chemical under section 6, though as
TSCA reform debates in Congress have continued to drag on for years, the Obama EPA has stepped up its efforts to
regulate chemicals under the current law. In 2012 EPA announced that the agency had prioritized some 83 substances,
including asbestos and asbestos-like fibers, for risk assessment of consumer uses.
EPA’s Wendy Cleland-Hamnett, director of EPA’s Office of Pollution Prevention & Toxics, said during an event in
March in Baltimore that the agency is “looking at using [TSCA] section 6” for the paint stripper methylene chloride.
And EPA last November began exploring a section 6 ban for the solvent trichloroethylene, despite objections from the
chemical sector which claims that EPA is overstating the health risks of the chemical.
Under current TSCA section 6 authority, EPA may move to ban or otherwise restrict a chemical in commerce if it
finds “reasonable basis” to conclude that the substance presents an unreasonable risk of injury to human health or the
environment, but the agency must use the “least burdensome requirement.” In the 5th Circuit’s ruling in Corrosion Proof
Fittings, the “least burdensome” language proved problematic for EPA to satisfy, industry sources say.
The Boxer-Markey TSCA reform bill, S. 725, and the Vitter-Udall bill, S. 697, would strip that language from
TSCA, but groups are split on which bill would boost EPA’s section 6 authority.
S. 697 — known as the Frank R. Lautenberg Chemical Safety for the 21st Century Act after the late Sen. Frank
Lautenberg (D-NJ) who worked with Vitter on TSCA reform — “addresses the concerns with Corrosion Proof Fittings
sufficiently and the Boxer Markey bill is not needed for this reason,” one industry source says.
The source cites the elimination of the “least burdensome” requirement and new language in S. 697 on the “unreasonable risk” safety standard, which strengthens the provision from an earlier draft of the bill to reflect that EPA must
promulgate a rule establishing restrictions necessary to ensure a substance meets the standard.
“There’s no wiggle room there,” a source tracking the issue adds, pointing out that allowing a chemical to remain in
the marketplace after finding it has failed to meet the safety standard — as happened with asbestos — “is not an option
under Udall-Vitter,” which at press time had support from 8 Democratic and 9 GOP co-sponsors.
Moreover, the source says that the “biggest single thing the court pointed at” in Corrosion Proof Fittings was the
“least burdensome” requirement, which the bipartisan reform bill would eliminate.
A second industry source notes that “if you make only that change, you go 85 percent down the road to fixing” the
flaws in section 6 that have hindered EPA’s ability to regulate asbestos.
According to a side by side comparison of the Vitter-Udall bill to current law authored by Environmental Defense
Fund, which supports the bill, the bill would amend section 6 to make clear that cost considerations cannot override the
requirement that restrictions be sufficient to allow chemicals to meet the safety standard.
Further, the analysis says, whereas current TSCA suggests EPA must conduct a formal evaluation to show that the
benefits of a proposed section 6 action outweigh the potential costs, the bill would require balancing of costs and
benefits only “to the extent practicable based on reasonably available information.”
The bill language appears to reflect concerns raised by EPA toxics chief Jim Jones over S. 1009 — an earlier,
unsuccessful bipartisan TSCA bill introduced in 2013 by Lautenberg and Vitter — that the cost benefit requirements
would create similar issues for EPA to the “least burdensome” requirement.
But the environmentalist says that while the cost considerations may be modified in the new Vitter-Udall bill,
the legislation still “explicitly requires” cost to be a factor in risk management decisions under section 6.
The source adds that the Boxer-Markey bill would explicitly require EPA to immediately list asbestos in all its
forms as a high priority chemical under the new prioritization regime the bills would establish, to complete a safety
assessment and determination within two years, and take final action on a rule within three years of passage.
“The industry bill does not mention asbestos and does not create an expedited process to review and presumably
ENVIRONMENTAL POLICY ALERT — www.InsideEPA.com — March 18, 2015
ban a substance that still causes the deaths of more than 10,000 Americans every year,” Environmental Working Group
says of a side-by-side comparison between the two bills.
But industry sources point out that asbestos is less widely used than in 1991, meaning it may not be as high a
priority as some other substances that are more widely used in consumer goods and therefore have a higher level of
exposure, under a new TSCA regime.
“It’s worth noting that asbestos is not used nearly as much now as in 1989 when EPA” considered a ban, a third
industry source says, and the second source notes that, “If you order EPA to do something about asbestos, you take
resources away from” other chemicals that may have a higher exposure level.”
However, EPA’s 2012 work plan chemical list includes asbestos, and the Vitter-Udall bill would require EPA to
select at least five work plan chemicals in its initial 10 high-priority substances it is required to list for safety assessment
within one year of enactment.
Meanwhile, Sen. Dick Durbin (D-IL), who had been a co-sponsor on the original S. 1009 Vitter-Lautenberg bill but
has not yet signed onto either of the new reform bills, along with Markey, introduced S. 700, known as the “Reducing
Exposure to Asbestos Database Act of 2015”, which would establish a database for better tracking of consumer products
that use asbestos. Relevant documents are available on InsideEPA.com. See page 2 for details. (Doc ID: 179714)
Senators’ Bid To End TSCA Reform Stalemate Could Create New Hurdles
Senate Democrats and Republicans are floating a revised Toxic Substances Control Act (TSCA) reform bill that
they say addresses a host of controversial issues that have led to a stalemate on moving reform legislation, but the bill
could create new hurdles by raising questions about its fee structure, safety standard, and other provisions.
The legislation released March 10 is a revised version of a prior failed bill to overhaul the 1976 TSCA, and seeks to
give EPA authority to address the thousands of chemicals already in the marketplace. Among the revisions are new
limits on the bill’s preemption of state programs to restrictions on chemicals that EPA has designated as high priority
and commenced a safety assessment — which appears narrower than the earlier drafts of the legislation. Relevant
documents are available on InsideEPA.com. See page 2 for details. (Doc. ID: 179530)
The bill also makes changes to the previous legislation’s safety standard under which EPA would assess chemical
safety, and establishes new plans for a fee system that would provide funding for implementation.
But some say the bill raises new questions over whether it would fix major flaws in TSCA that many attribute to
EPA’s 1991 failure to ban asbestos — such as whether the bill’s revised language requiring a cost-benefit analysis of
EPA action to ban or restrict a chemical would create similar problems to those in the asbestos case.
Sen. David Vitter (R-LA), who introduced the bill in Washington, D.C., with Sen. Tom Udall (D-NM), said that the
legislation addresses various concerns that a group of senators raised about an earlier version of TSCA reform Vitter
worked on last year. “Every one of those specific areas was address in a substantive way,” he said. “I couldn’t be more
pleased,” though he declined to provide specific examples of how the concerns were addressed.
Udall also touted the compromise legislation and its bipartisan support, as well as various stakeholder groups. “I’m
very proud of what we’ve done. We pulled together attorneys who were interested in access to the courthouse for their
clients, states, EPA, industry, public health and safety and environmental groups. . . . Nobody got everything they
wanted. . . . We pulled people together and developed a product that I think is very, very solid.”
Nevertheless, Senate Environment & Public Works Committee (EPW) ranking member Barbara Boxer (D-CA) in a
March 10 statement said that, “Legal experts who have examined the . . . toxics bill at my request tell me this bill is
worse than current law. This means there will be fewer protections from the most dangerous chemicals for communities
and families. In addition, the bill in its current form devastates the role of states in protecting their people, and the
sponsors declined to ensure asbestos and children’s cancer clusters are addressed.”
And one environmentalist says “the real test is asbestos,” noting that while the bill would eliminate TSCA’s current
mandate that EPA examine the “least burdensome” alternative to banning a chemical, it would still require the agency to
consider costs and benefits associated with regulating a chemical under section 6 of the law. Critics fear that this could
create hurdles for attempts to use the toxics law to regulate substances of concern.
The early push-back from Boxer and some environmentalists suggests that the revisions to the legislation might
have created further questions and hurdles in the attempt to resolve existing doubts.
The bill, known as the Frank R. Lautenberg Chemical Safety for the 21st Century Act after the late Democratic senator from New Jersey who advocated for TSCA reform, is the latest effort by Vitter, Udall, Senate EPW
Chairman James Inhofe (R-OK) and others to advance efforts to overhaul the decades-old law.
Efforts to move TSCA reform in the Senate in the 113th Congress stalled in EPW under then-Chairman Boxer, who
objected to what she said were extensive state preemption provisions in earlier bills.
The bill was introduced with the support of Sens. Inhofe, Joe Manchin (D-WV), Tom Carper (D-DE), Roy Blunt
ENVIRONMENTAL POLICY ALERT — www.InsideEPA.com — March 18, 2015
(R-MO), Chris Coons (D-DE), John Boozman (R-AR), Joe Donnelly (D-IN), Mike Crapo (R-ID), Martin Heinrich (DNM), Shelley Moore Capito (R-WV), Heidi Heitkamp (D-ND), John Hoeven (R-ND), Debbie Stabenow (D-MI), and
Bill Cassidy (R-LA) for a total of 14 co-sponsors.
Vitter described the latest version of the TSCA reform legislation as a grand compromise. “Republicans agree to
give EPA a whole lot of new, additional authority, which we’re not in the habit of getting excited about, to state the
obvious. In exchange that leads to, once the EPA takes action, a common rulebook” on how chemicals will be regulated.
“That leads to the fundamental nature of a compromise, and I think that’s what has brought Democrats and Republicans
on board and I expect support to grow on both sides” since the bill’s introduction, he said.
The Environmental Defense Fund is offering support for the bill, touting revisions to its safety standard under
which EPA would review the safety of chemicals and designate them for further action under Sections 4, 5, and 6 as
“replacing TSCA’s burdensome cost-benefit safety standard — which prevented EPA from banning asbestos — with a
pure, health-based safety standard,” according to a March 10 press release from the group.
The bill defines the safety standard as that which “ensures, without taking into consideration cost or other nonrisk
factors, that no unreasonable risk of harm to health or the environment will result from exposure to a chemical substance
under the conditions of use.”
The new safety standard would also ensure that substances pose no unreasonable risk of harm to the general
population or any “potentially exposed or susceptible population that the Administrator has identified” which addresses
an early criticism of S. 1009 that it did not adequately protect vulnerable populations.
But the Safer Chemicals, Healthy Families Coalition writes in a letter to lawmakers — floated March 10 by Boxer
— that the new safety standard language would make it harder for EPA to regulate a substance in a specific consumer
product. The coalition calls for the senators to strip the relevant language, saying it would require EPA to “jump through
additional regulatory hoops” to address a substance even after determining a chemical is unsafe. Preemption looks
likely to be another major area of contention for the revised legislation, despite Vitter’s and Udall’s comments. Boxer in
her statement said that the revised legislation “devastates the role of states in protecting their people,” and fails to
ensure children’s cancer clusters and asbestos would be addressed. — Bridget DiCosmo & Maria Hegstad
EPA Considering Rare Ban Under TSCA For Paint-Stripping Chemical
BALTIMORE — EPA’s toxics managers are mulling the possibility of initiating a rare ban of the paint-stripping
solvent methylene chloride, indicating a continued focus on regulating “existing” chemicals on the heels of the agency’s
plans to explore similar restrictions on the common degreasing solvent trichloroethylene (TCE).
The agency has not proposed a ban on an existing industrial chemical under its Toxic Substances Control Act
(TSCA) Section 6 authority since its effort to ban asbestos using that authority was rebuffed by the U.S. Court of
Appeals for the 5th Circuit in 1991. The court ruled that EPA had not met its burden of proof to establish the chemical’s
risks could not be reduced by any other means. Environmentalists and other critics of TSCA cite the case, Corrosion
Proof Fittings v. EPA, as the ultimate proof of TSCA’s weakness.
As legislative efforts to reform TSCA have dragged on for years, the Obama EPA announced that it intended to
more rigorously pursue its TSCA regulatory authorities. In 2012, EPA announced that staff had prioritized some 83
chemicals for risk assessment of various consumer uses. If human or environmental risks were found in the assessments,
these would be regulated, officials said.
In a speech here March 3 at the GlobalChem conference, EPA’s Wendy Cleland-Hamnett, director of EPA’s Office
of Pollution Prevention and Toxics, announced that following the program’s risk assessments “we are looking at using
[TSCA] section 6, both for TCE and for methylene chloride in the coatings remover use. That will be a big focus of ours
for the coming year.”
EPA last November began exploring a section 6 ban for TCE, despite objections from the chemical sector which
claims that EPA is overstating the health risks of the chemical (Inside EPA, Jan. 30).
EPA published its risk assessment of methylene chloride, also known as dichloromethane (DCM), last August.
Agency assessors concluded that the chemical’s use as a paint stripper posed health risks to workers and consumers, as
well as to bystanders. The agency estimated that more than 230,000 workers nationally are exposed to DCM products,
an Aug. 28 press release said.
“Our review indicates that the use of DCM in paint strippers pose[s] risks to human health, so EPA is beginning an
effort to determine options for addressing the concern,” Jim Jones, EPA’s toxics chief, said in the statement.
The statement added that “EPA is beginning an effort to determine options for addressing the concern” but did not
indicate that the agency would consider a ban.
An industry source notes that the TCE risk assessment was the first conducted in the TSCA work plan program, and
DCM the second, with EPA indicating consideration of Section 6 action on both chemicals. “I think it’s illustrative of
ENVIRONMENTAL POLICY ALERT — www.InsideEPA.com — March 18, 2015
the action EPA will try to take,” the source says. “Since TSCA hasn’t been changed” since the 1991 ruling, “I don’t
know what has changed to make them think they could do that,” the source says.
A source with the Halogenated Solvents Industry Alliance (HSIA), which represents makers of DCM, says the
group and three of its DCM formulators met with Cleland-Hamnett and agency staff last December. The formulators
told agency staff that “there really is no other product on the market that is effective in paint stripping like [DCM]. We
also discussed with them that we had met with the [Consumer Product Safety Commission (CPSC)] to voluntarily
discuss changing the labels on methylene chloride paint strippers to address both acute and chronic hazards,” the source
During another discussion last week, agency staff asked HSIA to “think of other ways we may be able to address
risks,” the source adds.
HSIA in 2013 comments submitted on EPA’s draft assessment of DCM reminds agency staff of the hurdles endemic
to undertaking a TSCA Section 6 ban, and also points to regulatory measures EPA and other agencies have already
placed on DCM, arguing these obviate the need for further restrictions.
“EPA may regulate a substance under TSCA Section 6 only when ‘there is a reasonable basis to conclude’ that the
substance presents ‘an unreasonable risk of injury to health.’ Thus, regulation under TSCA Section 6 must be preceded
by a determination that there is an actual risk to health and that the benefits of regulation outweigh the costs. . . . A
review of the evidence demonstrates that neither standard is met in the case of DCM and paint stripping,” HSIA’s 2013
comments state.
Further, the comments note that EPA initiated a “priority review of risks of human cancer from exposure to DCM”
in 1985, using its TSCA Section 4(f) authority, which HSIA argues resulted in a number of regulations that adequately
control DCM exposures. HSIA points to the National Emission Standards for Organic Hazardous Air Pollutants EPA
crafted for paint stripping activities using its Clean Air Act authority. The Occupational Safety and Health Administration (OSHA) also issued workplace rules after EPA’s 1985 priority review, lowering the workplace exposure limit from
500 parts per million (ppm) to 25 ppm in 1997. Similarly, HSIA writes that the CPSC in 1987 required labels for
consumer products containing DCM.
Further, TSCA Section 9 requires EPA to confer with other agencies before pursuing a Section 6 ban, and HSIA
suggested that EPA must confer with OSHA and the CPSC before undertaking such action.
Meanwhile, Cleland-Hamnett indicated that EPA will be releasing more of the TSCA work plan risk assessments in
the coming months. “The final assessment on [n-methylpyrrolidone] I think will be coming out in the next few weeks,”
she told GlobalChem attendees. “For 1,4-dioxane and 1-bromopropane you can expect to see documents coming out in
the next month or so for public comment. Medium and long chain chlorinated paraffins, it will be a little longer till you
see a document published on those. . . . We also have these clusters of flame retardants, probably see those later this
spring.” — Maria Hegstad
EAB Scraps Landmark TSCA Penalty But Rejects Enforcement Time Limit
EPA’s Environmental Appeals Board (EAB) has scrapped the agency’s landmark $2.5 million penalty against a
chemical company for an alleged violation of Toxic Substances Control Act (TSCA) reporting rules, but EAB is backing
EPA’s position that some reporting violations are “continuing” and not subject to a statute of limitations.
The board’s March 13 decision therefore gives wins to both the company Elementis Chromium Inc. — which said
EPA guidelines were so ambiguous as to make the company’s TSCA reporting obligations unclear — by reversing the
penalty, and to the agency which could cite the ruling in future enforcement actions over years-old reporting violations.
The decision is available on InsideEPA.com. See page 2 for details. (Doc. ID: 179679)
EAB’s unanimous ruling in In re: Elementis Chromium Inc. for now resolves a case that is seen as a test of the
reach of TSCA section 8(e), which generally requires domestic chemical manufacturers, distributors and importers to
report information showing their chemicals or mixtures pose “substantial” health or environmental risks, unless industry
has “actual knowledge” that the administrator has been “adequately informed” of such information.
Industry representatives have said that despite several guidance documents that EPA has published to clarify section
8(e) reporting requirements, confusion persists over what must be reported, particularly in cases when a study is
corroborative of known risks and could be exempted from disclosure under the law.
An EPA administrative law judge (ALJ) in November 2013 ruled that Elementis violated section 8(e) of TSCA by
failing to forward to EPA a 2002 study showing increased risk of lung cancer to workers exposed to hexavalent chromium (Cr6), widely used as an anti-corrosive agent in pigments, dyes, paints and plastics and in the production of
stainless steel. As part of the proceeding, the ALJ upheld the $2.5 million penalty EPA imposed.
Elementis, the only domestic manufacturer of Cr6, urged EAB to overturn the penalty, arguing EPA’s guidance on
information that must be reported under the law is ambiguous and contending the company could not have known to
ENVIRONMENTAL POLICY ALERT — www.InsideEPA.com — March 18, 2015
report the 2002 health study which another federal agency found lacked new risk information.
In the case, Elementis also argued that EPA’s penalty was time-barred because a five-year statute of limitations
lapsed between when the company received the study in 2002 and when EPA brought its enforcement action in 2010 —
two years after Elementis eventually forwarded the study to EPA after a subpoena.
In the March 13 ruling, EAB’s judges backed Elementis’ arguments that the company was not required to submit
the 2002 risk study showing Cr6 causes lung cancer because the study is merely corroborative of what the agency
already knew.
“It has been well-established for decades that hexavalent chromium causes the effect of lung cancer,” EAB Judges
Leslye M. Fraser and Kathie A. Stein say in the decision. “Moreover, the epidemiology study Elementis received
identified a lung cancer effect only at a substantially higher cumulative dose level than the cumulative dose level
showing lung cancer in a pre-existing EPA epidemiology study on hexavalent chromium.”
EPA had argued that while a correlation between Cr6 exposure and increased risk of lung cancer was already
known, the industry-funded study should have been reported to it because it includes new exposure information and
shows the risk to workers continues in modern facilities, despite industry efforts to mitigate the Cr6 risk.
While EAB found Elementis was not required to report the study and reversed the ALJ ruling on the penalty, the
board backed EPA’s arguments that some violations of section 8(e) obligation to report health and safety information
can be continuing and therefore not subject to a statute of limitations for enforcement actions.
“This duty continues for as long as reportable information is required and not provided,” the judges say. “The
period of limitations for a section 8(e) violation runs anew each day the obligation to provide reportable information
remains unfulfilled.” — Dave Reynolds
Former EPA Official Questions IRIS’ Outdated Pesticide Risk Assessments
A retired EPA pesticides official is pressing the agency to address the more than 100 pesticides included in the
agency’s Integrated Risk Information System (IRIS) toxicity assessment database for environmental chemicals, arguing
that these outdated, 30-year-old assessments undermine the influential database’s authority.
“In my view, it is a big problem for IRIS and [EPA’s National Center for Environmental Assessment (NCEA)] and a
significant impediment to the reestablishment of IRIS as a credible repository of Agency-generated human health
guidance,” Penelope Fenner-Crisp, a former EPA pesticides official and now a private consultant, writes in a Dec. 15
letter to NCEA Director Ken Olden, and recently released in IRIS’ electronic docket. Relevant documents are available
on InsideEPA.com. See page 2 for details. (Doc. ID: 179497)
EPA’s IRIS database provides toxicity information agency-wide about chemicals and other factors in the environment that may cause adverse health effects, and many risk management decisions are based on the assessments. The
database is publicly available on the internet, and many state agencies and agencies in other countries consult it.
The IRIS program has long held the goal of updating its existing assessments at least once a decade. However, that
goal is rarely met, with the program in recent years completing just a handful of assessments per year. In fiscal year
2014, the agency did not publish any final IRIS assessments. In a 2008 review, the Government Accountability Office
declared the program so slow-moving as to be nearly obsolete.
Fenner-Crisp, who at various public meetings has questioned the use of a separately staffed IRIS program rather
than a consensus committee of agency-wide risk assessors, as in the early days of the database, writes, “over the time
frame during which the IRIS process was a collaborative one (1987-1995), 462 chemical entries were uploaded onto
IRIS. In the nearly 20 years since IRIS was taken over by NCEA, only 95 additional chemical entries have been
uploaded onto IRIS.”
Olden, who was brought into EPA to turn around the troubled program two years ago, announced in December at the annual meeting of the Society for Risk Analysis in Denver that he intends to remove some 140 IRIS assessments from the database because they are outdated. And he indicated plans to update about 350 other assessments in the
However, those plans have yet to come to fruition. Fenner-Crisp, who questioned Olden about the status of the
outdated pesticides assessments in the IRIS database at the Denver meeting, sent Olden her analysis of the number of
outdated IRIS assessments in the database. According to her review, “nearly 200 of the 558 entries on IRIS are currently-registered or recently-canceled pesticides,” Fenner-Crisp writes.
In her analysis, Fenner-Crisp reviews this group of 193 pesticides and compares the cancer and noncancer toxicity
estimates in the IRIS database with the toxicity estimates EPA’s Office of Pesticide Programs (OPP) has generated for
the same chemicals since the IRIS values were calculated in the 1980s. She notes that many of the values are different
and argues this undermines IRIS’ credibility.
“Of the nearly 200 chemicals, almost 90 percent of the IRIS entries for these substances are incorrect, either for the
ENVIRONMENTAL POLICY ALERT — www.InsideEPA.com — March 18, 2015
[non-cancer reference dose (RfD)] or the cancer call or both,” Fenner-Crisp writes. “This is the 800-pound elephant in
the room. This problem needs to be corrected, swiftly and thoroughly, if there is any hope of fully restoring credibility to
Fenner-Crisp writes that anyone — inside or outside the agency — who has used the IRIS pesticide values rather
than the updated OPP values has been using outdated information “for at least 20 years”. And she writes that “[a]t least
one EPA program office (Superfund) is trapped into using the wrong numbers for pesticides as a matter of policy,”
pointing to Superfund’s Risk Assessment Guidance for Superfund, where IRIS is described as “superseding” all other
information sources.
An agency source says that IRIS leaders are working to get the outdated assessments removed from IRIS, but
bureaucratic delays are slowing action. The main delay, the source says, is that in the process of reviewing and determining which pesticides are outdated and obtaining agreement within the agency to remove the assessments, “somebody
discovered that there’s another set [of chemicals] that [NCEA] also doesn’t have responsibility for.” The source was
unsure, but thought this other group of chemicals also falls within OPP’s authority. The source adds that the intent is to
remove both sets of chemicals from IRIS together.
In her analysis, Fenner-Crisp goes through the 193 pesticide compounds in the IRIS database and compares the
toxicity estimates with any newer estimates that OPP has generated. She notes that of the 167 IRIS pesticide entries that
are not up to date, “For 27 entries, the [non-cancer toxicity estimates, or RfDs] match, but the cancer calls do not . . .
For 19 entries, the RfDs do not match, but the cancer calls do . . . For 121 entries, neither the RfD nor the cancer call
match . . .” — Maria Hegstad
EPA Rejects State Push To Delay ESPS Implementation Pending Lawsuits
A top EPA official is rejecting calls from recalcitrant states to delay finalizing or implementing its rule to curb
greenhouse gases (GHGs) from existing power plants, which the agency plans to issue this summer, in the face of
opposition from cooperative states whose officials say any delay would undermine their ability to comply.
Speaking to high-ranking state environmental regulators at the Environmental Council of the States (ECOS) Spring
Meeting in Washington, DC, March 16, acting EPA air chief Janet McCabe said EPA will “move forward” with the
existing source performance standards (ESPS), echoing recent comments from EPA Administrator Gina McCarthy that
the agency will stick to its existing schedule.
McCabe was responding to a question from Ohio EPA Director Craig Butler, who asked whether EPA could stall
the implementation process while “some really significant legal questions” over the ESPS are resolved, citing the heavy
investment states will make in the effort to comply.
The rule calls for states to craft their own implementation plans, drawing from a range of strategies to curb GHGs,
but has run into legal action even before it goes final from several states, including Ohio, who challenge its lawfulness
under the Clean Air Act. Once the rule is finalized, most observers expect more lawsuits will be filed, including one that
will seek to stay the rule until the Supreme Court rules.
Butler asked McCabe if there was “any sense” that implementation of the ESPS could be put on hold, “not as a
delaying tactic, but as a resource allocation” issue.
In response, McCabe noted that the timetable for ESPS differs from, for example, EPA’s ozone national ambient air
quality standards, which must be issued by Oct. 1 under court order. The ESPS is instead under a presidential deadline
for issuance in final form, she said.
Minnesota Pollution Control Agency Commissioner John Stine, however, offered a different perspective, saying any
delay would undermine his state’s effort to comply. “We feel the drag” of the need for additional dialogue between states and
EPA that could delay the rule’s implementation, Stine said. Industry and regulators in the state are already moving ahead with
planning GHG reductions that could help meet the final ESPS rule, and this risks being compromised by delay, he said.
While she rejected calls to delay the rule’s implementation, McCabe sought to allay fears from some state regulators that the ESPS as proposed would not allow states enough time to make the necessary changes to state statutes and
regulations to allow implementation.
“We will not finalize something which in our view is literally impossible” to implement on time, McCabe said,
adding that EPA will credit “good-faith efforts” to meet the rule. “I do think we have some tools in the Clean Air Act to
deal with these issues,” she said, without elaborating further.
Despite such assurances, opponents of the ESPS led by Senate Majority Leader Mitch McConnell (R-KY) are
urging states not to cooperate in crafting their own plans for rule implementation, raising the possibility that EPA would
ENVIRONMENTAL POLICY ALERT — www.InsideEPA.com — March 18, 2015
impose a federal implementation plan on them instead.
Asked at the ECOS meeting what such a federal plan would look like, McCabe said only that “there is not a lot of
specifics that I am really in a position to talk about today.”
She said that EPA is wrestling with questions such as whether the agency will develop one “generic” plan for
multiple states, or individually-tailored plans. Eventual federal plans would offer “flexibilities” and “options” for
compliance, McCabe said.
Other speakers warned, however, that EPA’s effort to provide states with flexibility was being undermined by calls by
McConnell and other critics. Joe Mendelson, Democratic chief climate counsel for the Senate environment committee, said
that McConnell’s call for states to “just say no” threatens “co-operative federalism that underlies our environmental statutes.”
Previously, Republicans have complained that EPA is undermining co-operative federalism by usurping states’
powers under the air law.
Mendelson said efforts by GOP lawmakers to halt the ESPS will not likely succeed, as Democrats are “very
confident” that the president would veto any legislation attacking the rule, and Republicans lack the 67 votes required
for a veto override. “I hope states don’t stop their implementation planning,” but more forward to do what is best for
them, Mendelson said, adding, “ultimately, litigation on it is not a compliance strategy.”
But Susan Bodine, the environment committee’s GOP counsel, said Chairman James Inhofe (R-OK) remains
concerned about the ESPS rule and EPA’s overreach into areas of energy regulation beyond the agency’s legal purview.
“It is a significant concern,” she said. — Stuart Parker
EPA Considers ‘Fallback Options’ For Dropping CCS From Power Plant NSPS
EPA is analyzing scenarios that would drop its contentious carbon capture and sequestration (CCS) mandate for
new coal-fired power plants under its proposed greenhouse gas (GHG) standards for new power plants, amid growing
agency concern that the rule is legally vulnerable because the technology may not be “adequately demonstrated” as the
Clean Air Act requires since most of the demonstration projects cited in the proposal are stymied.
However, one informed source stresses that the agency has made no decision on whether to walk away from the
heart of the new source performance standards (NSPS), but says a decision — one way or the other — will need to be
made soon. The source says it remains unclear how EPA decision makers would respond to a final NSPS that does not
require partial CCS for coal plants as the agency’s proposal does, and that it is also unclear whether the decision will be
made by EPA or the White House.
“This is a big political question,” the source says. “I just don’t know whether they’re prepared to live with [the] criticism.”
The source says EPA staff have analyzed “fallback options” including ultra super critical pulverized coal (USCPC)
and integrated gasification combined-cycle (IGCC) plant without CCS. “IGCC gets you to a lower number than ultra
super critical but none of them get you to the number that they were at with mandatory CCS,” the source says. “How the
policy makers feel about moving to that option, I have no idea.”
An EPA spokeswoman declined to answer questions about whether agency staff has analyzed scenarios for finalizing the rule without CCS, only responding, “We are working to finalize the rule by this summer.” But EPA Administrator
Gina McCarthy strongly defended the agency’s proposal before House lawmakers recently, saying she is “very confident” the technology can be used at the levels the agency is proposing.
EPA’s proposed NSPS sets an emissions rate for new coal plants of 1,100 pounds of carbon dioxide (CO2) per
megawatt hour (lbs CO2/MWh), which it notes can be achieved only by partial CCS. The rate of an IGCC plant without
CCS is about 1,450 lbs CO2/MWh while a USCPC plant emits around 1,700 lbs CO2/MWh.
One industry source says backing away from the CCS mandate is “not an attractive option because [the White
House appears to be] all in for CCS. . . . What I’ve heard would lead me to believe that right now the administration is
not ready to move from CCS for policy reasons,” despite the acknowledged legal vulnerabilities.
The proposal identifies CCS as the best system of emission reduction (BSER) in particularly strong language that
EPA would likely find difficult to walk back in a final rule. The industry source believes the agency would have to
supplement its proposal before being able to finalize an NSPS without CCS.
If the agency does drop the CCS mandate, that could ease some of the legal uncertainties associated with the rule.
In addition to questions about whether CCS is adequately demonstrated, the air law also requires EPA to have a final
NSPS under section 111(b) in place before it can finalize its proposed existing source performance standards under
section 111(d), and some sources suggest the agency might be willing to sacrifice some of the stringency in the NSPS in
order to help preserve the ESPS.
EPA also faces a restriction in a 2005 energy law from relying “solely” on projects that receive Department of
Energy (DOE) funding as the basis for new requirements. The agency says its rule is not based solely on those projects,
though that issue is being teed up for litigation.
The informed source says dropping CCS would make legal battles over the NSPS “much less contentious” while
ENVIRONMENTAL POLICY ALERT — www.InsideEPA.com — March 18, 2015
not having much of a market impact now “because nobody’s really building coal. So I think it probably doesn’t change
what people are building, which is primarily combined-cycle natural gas.” But “if we see a dramatic change in gas
prices . . . that would allow for more diverse choices” in the future.
EPA is under growing pressure from some in Congress to drop the CCS mandate. The agency has faced heated
GOP criticism in recent hearings over the fact that DOE-funded advanced CCS demonstration projects, projects that
EPA cited to justify it proposal, are faltering, further undermining the rule.
For example, the Kemper CCS project in Mississippi is facing significant construction delays and massive cost
overruns, prompting agency officials to shift focus from that project to a Canadian one that recently began operations.
However, the relatively small 110-MW Boundary Dam project is a retrofit, rather than a new plant, and, as critics point
out, is not a domestic example.
But Boundary Dam is an example of a non-IGCC CCS project, which could be important because it relies on postcombustion carbon capture rather than pre-combustion carbon capture. The post-combustion technology shows that it is
possible to use CCS technology for the existing fleet, which typically burns coal in a conventional manner without
Also, DOE last month pulled the plug on its contribution to the $1 billion FutureGen CCS project. And while EPA
and DOE officials stressed that was solely a funding decision unrelated to the state of CCS technology, sources warned
the project’s demise would legally undermine EPA’s CCS justification.
One CCS proponent says it would be “very good news and very prudent” for EPA to drop the CCS requirement
from the NSPS. “That is an approach that would allow the technology to continue to develop while not imposing an
effective mandate.”
However, one environmentalist questions how the agency can consider dropping the heart of its proposal: to ensure
that new coal plants sequester their CO2. If that happens, environmentalists would “be up in arms,” the source warns.
Possible substitute mandates — including for IGCC or USCPC without CCS — would result in plants that “emit an
awful lot of carbon. CCS can get you to zero,” the source adds.
The source acknowledges that DOE Secretary Ernest Moniz has been talking up USCPC plants in recent congressional testimony, rather than the IGCC demonstration plants. “They’re backing away from that a bit. But that doesn’t
mean they’re leaving a whole technology on the cutting room floor.”
In fact, Moniz in recent testimony has stressed that a USCPC plant with partial CCS can achieve the standard set by
the NSPS. For example, Moniz at a Feb. 25 House science committee hearing downplayed the regulatory burden from
EPA’s rule for new power plants, noting that it only requires partial carbon capture. And he suggested there is confusion
in public debate between DOE-funded CCS projects — which push the envelope on the technology with high rates of
carbon capture — and the less-ambitious goals in EPA’s regulation.
Meanwhile, McCarthy in a Feb. 25 exchange with Rep. Tim Murphy (R-PA), chair of another House energy panel,
acknowledged that the demonstration projects are faltering but also strongly defended CCS’ viability.
However, she also stressed that the questions Murphy was raising were based “on a proposal, not a final” rule,
and she noted the agency would look at all the comments it received — many of which asked it to drop the CCS
mandate. — Dawn Reeves
Groups Begin To Outline Options For EPA To Drop CCS From NSPS Plan
As EPA considers whether to require new coal plants to install partial carbon capture and sequestration (CCS),
critics and supporters are offering different options for how the agency can drop the requirement without abandoning its
effort to regulate greenhouse gases (GHGs) at new power plants.
For example, the Center for Regulatory Effectiveness (CRE), a group that charges that the CCS mandate is unlawful
because it violates the Information Quality Act (IQA), is suggesting in an options paper that EPA issue an “interim” rule
that sets a standard for new coal plants that is just shy of CCS, while conducting a peer review on the state of carbon
capture technology. Relevant documents are available on InsideEPA.com. See page 2 for details. (Doc. ID: 179566)
CRE says this would put the agency in compliance with the IQA and make the new source performance standard
(NSPS) much less legally vulnerable.
At the same time, Nathan Richardson, a visiting scholar at Resources for the Future (RFF) and a law professor at the
University of South Carolina, is suggesting that EPA avoid the CCS issue entirely by reverting to its original NSPS proposal,
issued in 2012, that set a single standard for fossil fuel power plants equivalent to natural gas combined-cycle (NGCC).
Richardson argues this approach is a more legally sound way to achieve the same result as EPA’s revised proposal
that bifurcates the NSPS into separate categories for coal and gas and declares that the best system of emission reduction (BSER) for coal is partial CCS while BSER for gas is NGCC.
The suggestions come as EPA is considering dropping the CCS requirement from the NSPS proposal to cut GHGs
ENVIRONMENTAL POLICY ALERT — www.InsideEPA.com — March 18, 2015
from new coal-fired power plants due to growing agency concern that the provision is legally vulnerable because the
technology may not be “adequately demonstrated” as the Clean Air Act requires.
The concern is driven in part by the fact that many of the projects EPA cited in its proposed rule to justify its
determination are faltering. In addition, a 2005 energy law prohibits EPA from relying “solely” on projects that receive
Department of Energy funds, as the faltering demonstration plants do.
The issue is critical for EPA because the new source rule is a legal predicate for the agency’s pending existing
source performance standards (ESPS).
EPA has declined to comment on the issue, only saying it intends to finalize the NSPS and ESPS this summer.
Sources say the agency has not decided on whether to drop CCS but has analyzed various “fallback options” for the
rule without the requirement. “This is a big political question,” one informed source said late last month.
Whatever the agency decides, the choice will be difficult and will not be a “win-win,” says a former senior agency
official, who adds that if EPA “sticks to their guns on CCS, they’ve got a difficult lawsuit on their hands. But there will
be a huge amount of criticism if they back off. Nobody is really going to give them a lot of credit.”
In the midst of this, CRE is reiterating charges it first made in February 2014 in its effort to force the agency to drop
the CCS mandate.
The group last year sent EPA a “data quality alert” warning that its finding that CCS “is an available technology for
use in new coal-fired plants” needed to undergo formal peer review, as required by the IQA.
The data law generally requires agencies to ensure that scientific and other data used to develop policy stances are
objective, reproducible and peer-reviewed. But federal courts have determined that they lack jurisdiction to review IQA
cases, eliminating an enforcement mechanism for private parties to pursue challenges if agencies deny their petitions.
The alert warned the agency that it had “failed to comply with multiple requirements” of the White House Office of
Management & Budget’s (OMB) peer review guidelines for the IQA and that the agency “must have its CCS determination “subjected to independent external peer review . . . before the rulemaking can go forward.”
Stephen Page, director of EPA’s Office of Air Quality Planning & Standards, responded in an March 10 letter,
indicating that any final rule “will clearly demonstrate the agency’s compliance with the [IQA].”
CRE sent its data quality alert to EPA last year just weeks after the agency’s Science Advisory Board (SAB)
reluctantly declined to review the scientific justification of the CCS proposal.
Some members of an SAB panel voiced concern over EPA’s CCS determination and sought to review the scientific basis
of the finding. But EPA officials pushed back, arguing a peer review was outside the panel’s scope because the NSPS did not
explicitly mandate use of the technology, but instead sought its use as a means of complying with an emissions standard. As a
result, the panel reversed its prior call and agreed with EPA that policy questions over CCS were beyond its oversight.
Several SAB members noted they were tightly constrained in what they were allowed to review under EPA’s legal
view that the practice of sequestration was governed by separate regulations — namely Safe Drinking Water Act
underground injection requirements — rather than the NSPS. An SAB work group, in a 2014 memo, asked the board to
review the NSPS after finding EPA’s scientific and technological basis for requiring sequestration was “new science”
that would benefit from review.
Now CRE is renewing its charges, sending a March 8 letter to EPA Administrator Gina McCarthy indicating that the
agency is required to subject its CCS determination to peer review in order to comply with OMB peer review guidelines
regarding the IQA.
And in its separate options paper, CRE adds that EPA or OMB can use compliance with the IQA as a way to at least
temporarily drop the CCS requirement from the proposal and shore up its legality.
The group says OMB can exercise its authorities under the IQA and require peer review of CCS while having EPA
issue an interim NSPS that excludes CCS. Based on the review results, EPA could then “make the appropriate changes
in the interim rule as needed.” — Dawn Reeves
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ENVIRONMENTAL POLICY ALERT — www.InsideEPA.com — March 18, 2015
EPA Advances Aircraft GHG Risk Finding For OMB Pre-Publication Review
EPA has sent for White House pre-publication review its long-awaited finding on whether aircraft greenhouse gas
(GHG) emissions endanger public health and welfare, with environmentalists seeking an affirmative endangerment
finding that would trigger a Clean Air Act mandate for the agency to write GHG rules for aircraft.
The agency submitted the proposed finding to the White House Office of Management & Budget (OMB) March 2,
a necessary step ahead of its publication in the Federal Register. According to the agency’s “Rulemaking Gateway” of
pending regulations, EPA plans to publish the finding in the Register in May under a non-binding self-crafted deadline,
which would represent only a slight delay from earlier plans to issue the finding in April.
Alongside the finding, EPA will also issue an advanced notice of proposed rulemaking (ANPR) discussing international efforts to curb aircraft GHGs and the potential use of air law authority to issue domestic aircraft GHG rules.
Even as EPA advances the finding as a potential precursor to domestic regulation of aircraft GHGs, the agency in its
fiscal year 2016 budget documents says it will continue to push for a global pact on international aircraft GHG rules
through ongoing negotiations at the International Civil Aviation Organization (ICAO).
Environmental groups including the Center for Biological Diversity (CBD), Sierra Club and others have urged EPA
to push ahead with Clean Air Act aircraft GHG rules regardless of the ICAO talks. CBD has filed a notice of intent to
sue the agency to force swift issuance of the endangerment finding.
Following the submission of the aircraft risk finding to OMB, a CBD source says, “Time and the content of what is
published will determine next steps. As you know, our notice of intent to sue is on file.”
If EPA declares that aircraft GHGs do not endanger public health and welfare, then it would not have to write rules
to limit those emissions — but environmentalists would likely sue over this conclusion.
An affirmative finding that GHG emissions from aircraft endanger public health and welfare would trigger a Clean
Air Act duty for the agency to craft regulations to address the risks by reducing those emissions, much like its GHG risk
finding for vehicles led to first-time climate rules for passenger cars. Environmentalists say the affirmative finding for
vehicle GHGs should also mean EPA issues an affirmative finding for aircraft GHGs.
However, EPA has prioritized GHG regulation of other industry sectors that it says contribute more to global
climate change, and has until now avoided issuing rules for aircraft.
A 2013 Congressional Research Service report said after motor vehicles, aircraft are the next greatest mobile source
of GHGs, at between 2.4 and 3.4 percent of national emissions. Other mobile source categories, such as ships and
locomotives, “are less significant” at less than 1 percent of total U.S. GHG emissions, the report says.
The agency is pursuing an international agreement on reduction of GHGs from the sector through ICAO, of which
the United States and many other countries are members. EPA has consistently stated that the ICAO process should
drive U.S. policy on the issue. ICAO hopes to reach a global deal in February 2016.
Environmentalists, however, say the international process is taking too long and that there is no guarantee it
will result in a rule that they can support. For years, advocates have pursued litigation aiming to force EPA to formally
respond to their petitions asking it to launch the endangerment finding process.
The U.S. District Court for the District of Columbia in 2012 ordered EPA to conduct the necessary rulemaking
process for an endangerment finding, without prejudging the result because it did not say whether EPA had to issue an
affirmative or negative finding. Although EPA said at the time it would need 22 months — until April 2014 — to issue a
finding, the court did not set a binding deadline for the agency to meet.
When EPA missed its self-imposed deadline last year, environmental groups Aug. 5 sent EPA a letter giving 180
days’ notice of their intent to resume deadline litigation, claiming “unreasonable delay” by the agency.
EPA in response announced in September it was beginning the rulemaking process to issue a proposed endangerment finding, and also the ANPR that will discuss measures ICAO is considering to curb emissions and domestic
options for aircraft GHGs rules. Environmentalists, to date, have not returned to court.
A summary of the endangerment finding proposal on OMB’s website says the ANPR “will include a discussion of
ICAO’s progress in establishing global aircraft standards that achieve meaningful [carbon dioxide] reductions and, if
EPA finds that aircraft GHG emissions do cause or contribute to endangering air pollution, the potential use of [air law]
section 231 to implement these standards domestically,” referring to the section of the air law that outlines EPA’s
authority to develop aircraft emissions standards.
“Greenhouse gas emissions from aircraft are currently responsible for more than 3 percent of total U.S. emissions
and are one of the fastest-growing carbon pollution sources, on track to triple globally by 2050 under business-as-usual
scenarios,” wrote several environmental groups in a Jan. 22 letter to EPA.
EPA should not depend on international talks and has an independent duty to regulate GHGs from aircraft under the
air law, the groups said. The agency “has an acknowledged duty under the Clean Air Act to set domestic emission
standards regardless of whether ICAO proceeds,” the groups wrote.
But EPA in its proposed FY16 budget congressional justification says it continues its efforts to reach agreement at
ENVIRONMENTAL POLICY ALERT — www.InsideEPA.com — March 18, 2015
ICAO on GHGs and is “coordinating its efforts with the Federal Aviation Administration (FAA) to develop GHG
standards and testing procedures for aircraft at ICAO.”
EPA notes that it is also working toward an “action plan” to reduce particulate matter, a conventional pollutant,
from aircraft at ICAO, and will “evaluate endangerment” from the risks of lead emissions from piston-engined aircraft
using leaded gasoline, together with FAA. — Stuart Parker
In Novel ESPS Lawsuit, Final Briefs Keep Focus On Procedural Questions
EPA and coal company Murray Energy have filed final briefs in the company’s novel litigation seeking to block the
agency from promulgating a final rule regulating greenhouse gases (GHGs) at existing power plants, with the litigants
focused largely on a series of threshold procedural questions that will determine whether judges reach the merits before
EPA issues a final rule this summer.
The briefs, filed March 9, mark the culmination of months of legal filings in the litigation, In re: Murray Energy
Corporation, roughly a month before April 16 oral arguments in the U.S. Court of Appeals for the District of Columbia
Circuit. Relevant documents are available on InsideEPA.com. See page 2 for details. (Doc. ID: 179501)
In its March 9 final brief, Murray argues that it has standing to challenge the proposed existing source performance
standards (ESPS), claiming that EPA’s proposal has already led to utilities planning to shutter coal plants and that EPA’s
modeling for the rule projects future closures, which would harm the company by reducing demand for coal.
“The injury to Murray Energy Corporation is actual, concrete, and traceable to EPA’s actions, and this Court has the
ability to stop EPA,” the brief says.
But the Department of Justice (DOJ), on the agency’s behalf, argues in its final brief that Murray lacks “Article III”
standing to sue, saying it is only a proposed rule that is not traditionally subject to judicial review. For the high legal bar
of standing, “Murray cannot possibly meet this burden here, because the action it challenges is only a ‘proposed’ rule,”
says the DOJ brief. “[I]t is too speculative to support standing.”
“At this stage, when EPA is still evaluating and has not yet responded to the millions of comments it received, any
predictions about what state-specific guidelines EPA might adopt in a final rule — let alone what requirements each
state, in turn, independently may impose on power plants pursuant to such guidelines — are pure conjecture,” says DOJ,
rejecting Murray’s claims that the proposal is already harming the coal sector. The brief notes that industry has already
blamed other EPA rules, such as the utility air toxics rule, for causing such harms.
The coal company and various industry trade associations are challenging the agency’s June 18 proposed ESPS,
which the agency developed under Clean Air Act section 111(d) authority. The rule is part of President Obama’s Climate
Action Plan, which also includes a proposed section 111(b) GHG rule for new utilities.
Under the ESPS, EPA is proposing rate-based GHG reduction targets for each state but would then defer to states
on crafting implementation plans for their emissions reduction strategies to comply with the rule. Industry, GOP critics
and some states warn the rule will impose massive costs, shutter coal plants, and is beyond EPA’s authority.
The company is asking the court to block the agency from finalizing the proposed rule under the All Writs Act,
while also charging that the proposal is unlawful under the air act.
Murray’s litigation, together with a similar case brought by West Virginia and a group of states, focus on the thorny
legal question of whether the agency may regulate GHG emissions from existing power plants under section 111(d) of
the act if it is already regulating their air toxics under section 112 of the air law, which authorized the agency’s mercury
and air toxics standards for power plants.
The issue will also be litigated if and when EPA promulgates a final rule this summer, but Murray and the
states are asking the court to address the issue before the final rule is issued. As a result, the proposed rule’s critics face
a high procedural bar if they are to get the court to address the issue.
If Murray and the other petitioners are able to overcome the procedural hurdles, the court will then have to resolve
the merits issue, which is complicated because House and Senate amendments to section 111(d) on the issue were never
reconciled in a conference committee before the 1990 air act amendments were signed into law.
The Senate amendment would explicitly allow EPA’s proposed ESPS by limiting section 111(d)’s “112 exclusion”
to pollutants already regulated under that section. The House amendment could be read as prohibiting it because the
focus of the exclusion is on source categories, not pollutants.
The issue is further complicated because the Supreme Court is considering a case, National Mining Association, et
al., v. EPA, et al., that challenges the legality of EPA’s air toxics rules for power plants, litigation that could eliminate the
states’ legal argument if the high court vacates the rule — though few observers expect the high court to go that far.
On the merits, Murray argues that EPA lacks power to issue the 111(d) rule because the air law bars development of
a 111(d) standard for any industrial sector that is already subject to a section 112 national emissions standard for
hazardous air pollutants. Murray says EPA’s final section 112 utility maximum achievable control technology rule
ENVIRONMENTAL POLICY ALERT — www.InsideEPA.com — March 18, 2015
therefore bars development of the ESPS.
“Congress sensibly banned EPA from doubly regulating source categories under both Sections 111(d) and 112
because simultaneous, uncoordinated design of national and state-by-state standards maximizing emission reductions
would unduly jeopardize their viability by imposing conflicting or unaffordable requirements,” says Murray Energy,
which then faults EPA for claiming there is ambiguity in the Clean Air Act on this issue.
The company points out that EPA recognized this interpretation during the Clinton administration, when the agency
issued a fact sheet on landfill emissions standards that acknowledged this interpretation.
Murray says Congress in the 1990 air law amendments aimed to preserve the prohibition on regulating a section
112 source with a section 111(d) rule, albeit with the Senate proposing an exception for specified emissions from
existing incinerators. The House at the time approved a bill that instead said section 111(d) rules could be crafted for
almost any pollutant covered by section 111 if it did not cover emissions regulated under section 112.
The House bill also included a measure allowing EPA to choose whether existing utilities should be regulated under
section 111 or 112. “In conference, the House and Senate agreed to include in the final bill the Senate bill incinerator
provision, the House bill power plant provision, and the House bill amendment to the mandate program,” says Murray
Energy, claiming that Congress did not create any ambiguity that would give EPA authority for the ESPS.
But DOJ says that if the court reaches the merits, EPA should have deference for how it resolved the drafting error.
For example, it says that a “literal” reading of the House amendment at issue “can be read as authorizing EPA to address
power plant emissions under that provision so long as the pollutant in question (here, carbon dioxide) is not a criteria
pollutant,” according to the brief.
“Even if the Court concluded that there was a ‘direct conflict’ between the House and Senate amendments, which it
did not think the agency could properly address through interpretation, the result would not be what Murray or Intervenors wish,” DOJ says. Instead, under that situation the statutory text would revert to the pre-1990 air law which would
either render it null or preserve EPA’s regulatory authority, DOJ argues.
DOJ says the D.C. Circuit should defer to EPA to reach a conclusion on how to resolve the questions over the
statutory text. “EPA has not yet determined what weight to give the Senate amendment; whether or how to reconcile it
with the House amendment; or if reconciliation is even necessary. Intervenors suggest that, instead of having the
opportunity to proffer its conclusions on these issues, EPA must throw its hands in the air and look to either Congress to
clarify its intentions or the Court to divine them. But separation of powers principles instead require that the agency to
which Congress has delegated the implementation of a statute, and which has extensive expertise in interpreting and
applying that statute, gets the first crack at answering such questions,” the brief says.
Dozens of other parties have intervened on EPA and Murray’s behalf. For example, the National Federation of
Independent Business and Utility Air Regulatory Group in a March 9 brief intervening on the coal company’s behalf
largely echo claims that EPA lacks authority and that the proposal is already imposing harm on industry that warrants the
D.C. Circuit halting the regulation. — Anthony Lacey
EPA Launches Rulemaking To Rescind Portions Of GHG Tailoring Rule
EPA has formally launched a direct final rulemaking to rescind the portion of its greenhouse gas (GHG) permitting
rule that had required facilities to undergo prevention of significant deterioration (PSD) permit reviews based solely on
their GHG emissions until the agency’s approach was rejected by the Supreme Court last year.
EPA in its January 2015 “Action Initiation List,” which was posted to the agency’s website earlier this week,
indicated that it has launched a rulemaking to revise the PSD provisions for permit rescissions “to allow EPA to rescind
Tailoring Rule Step 2 [PSD] permits that were based on regulations that the U.S. Supreme Court determined to be
invalid” in Utility Air Regulatory Group (UARG) v. EPA.
The notice says EPA intends to publish the final rule in a year or less.
EPA is taking the action after the Supreme Court ruled last year to narrow the basis of agency rules governing major
source permits for sources’ GHG emissions. In particular, it rejected EPA’s reasoning that its “tailoring” rule could alter
statutory PSD thresholds — which are set at 100/250 tons per year (tpy) — because they were intended for conventional
air pollutants and would create “absurd results” as thousands of smaller facilities would be subject to permit requirements.
As a result, the rule generally raised the PSD thresholds for GHGs to 75,000 tpy. Step 1 of the tailoring rule
required only facilities that triggered PSD for criteria pollutants to undergo analyses to determine best available control
technology (BACT) for reducing GHG emissions. Step 2 subjected facilities that emitted GHGs in significant amounts
to PSD on their own even if they did not trigger thresholds for criteria pollutants.
But the Supreme Court in UARG held that GHGs alone cannot trigger PSD, though facilities that trigger the permits
for other pollutants must undergo BACT for GHGs.
The U.S. Court of Appeals for the District of Columbia Circuit, which is hearing arguments on how to implement
ENVIRONMENTAL POLICY ALERT — www.InsideEPA.com — March 18, 2015
the high court’s ruling, has not yet vacated step 2 of the tailoring rule, which means that the GHG-only permit requirements remain in effect.
The D.C. Circuit has not yet made any decision in how to go forward with the case, now known as Coalition for
Responsible Regulation v. EPA, since it received competing briefs from parties in November.
EPA first announced its intent to narrow the rule in Dec. 19 memos where officials outlined plans to revise existing
PSD rules to allow the GHG-only permits to be rescinded and provided a “no action assurance” that the agency would
not enforce GHG provisions of permits as it proceeds with the rule.
In the memo, EPA’s acting air chief Janet McCabe said that the rule will allow permitted entities to petition EPA to
rescind their major source PSD permits that were issued under step 2 of its tailoring rule, and then rescind agencyissued permits in response to requests from applicants who “can demonstrate they are eligible.”
High Court Focus On ‘Deference’ Presents New Hurdles For Major EPA Rules
Supreme Court justices are showing increasing division on the deference judges should give EPA and other agencies’ regulatory authority — setting the stage for that question to play a central role when the high court considers EPA’s
controversial pending rules on Clean Water Act (CWA) jurisdiction and climate change, observers say.
In concurrences to two March 9 decisions, and at the closely watched March 4 oral arguments over implementation
of the Affordable Care Act (ACA), the court’s conservatives have expressed concerns over agencies’ leeway to act
without explicit congressional authority and oversight, either by interpreting statutory text or by changing their implementation of regulations through “interpretive rules” not subject to public notice and comment.
“It gets into the question of who is in the best position to interpret laws and regulations — is it the courts or is it the
agencies? . . . We’re seeing signs that these justices want the courts to reassert their role of determining that the interpretation the agencies use is fair, and can be supported by the language that Congress used,” says a former top Department
of Justice (DOJ) official.
The former official and other observers say stricter oversight of agencies’ interpretive power will have significant
impacts on how the high court rules on challenges to EPA’s pending rules on power plants’ greenhouse gas (GHG)
emissions and the CWA jurisdiction rule, both of which are all but certain to reach the Supreme Court and hinge on what
critics charge is the agency’s expansive interpretations of its statutory authority.
“The conservatives want to explore how good EPA’s explanations are, and deference gets in the way of that, so we
can expect to see them less inclined to give deference in these major challenges,” says another court watcher.
Justices Antonin Scalia, Samuel Alito and Clarence Thomas have all voiced concerns over agencies’ authority to
interpret laws and rules in March proceedings, most prominently in concurring opinions to the high court’s March 9
decision in Perez, et al., v. Mortgage Bankers Association (MBA), et al., where the court ruled 9-0 to back the Labor
Department and other agencies’ power to amend interpretations of their rules without formal notice and comment. The
ruling is available on InsideEPA.com. See page 2 for details. (Doc. ID: 179493)
And in a concurring opinion in Department Of Transportation v. Association Of American Railroads, which tests
whether Amtrak is a “federal actor,” Alito agreed with the unanimous decision that the company can be so classified, but
warned that “When citizens cannot readily identify the source of legislation or regulation that affects their lives, Government officials can wield power without owning up to the consequences.”
While the result in Perez gives agencies expanded regulatory authority by allowing them to amend or withdraw
existing “interpretive rules” without notice and comment, the three conservatives in their concurrences argued that
judges should no longer defer to those interpretations, saying such deference allows sweeping substantive rule changes
without accountability.
“Because the agency (not Congress) drafts the substantive rules that are the object of those interpretations, giving
them deference allows the agency to control the extent of its notice-and-comment-free domain. To expand this domain,
the agency need only write substantive rules more broadly and vaguely, leaving plenty of gaps to be filled in later, using
interpretive rules unchecked by notice and comment. The [Administrative Procedure Act (APA)] does not remotely
contemplate this regime,” Scalia says in his Perez concurrence.
And arguments in the ACA challenge, King, et al., v. Burwell — which centers on the Obama administration’s
reading of statutory language on who qualifies for tax credits on insurance purchased on an “exchange” market —
Justice Anthony Kennedy said “it seems to me a drastic step for us to say that the Department of Internal Revenue and
its director can make this call.”
Scalia, Alito and Thomas said in their Perez concurrences that they support overturning so-called Auer deference,
ENVIRONMENTAL POLICY ALERT — www.InsideEPA.com — March 18, 2015
under which courts have long deferred to an agency’s reading of its own regulation, rather than enforcing a “best”
reading, unless the interpretation is “contrary to unambiguous statutory language . . . plainly erroneous or inconsistent
with the regulation, or that application of the regulation [is] arbitrary or capricious.”
The standard is named for the 1997 ruling in Auer v. Robbins that most clearly established it, but was first laid out
in the 1945 decision Bowles v. Seminole Rock & Sand Co. Scalia, Alito and Chief Justice John Roberts wrote in dissents
to the 2013 CWA case Decker v. Northwest Environmental Defense Center that they would consider overturning Auer,
and Alito and Thomas in Perez concurrences laid out legal arguments for doing so.
Roberts did not join any of the other conservatives’ opinions in the March 9 case, which observers say could signal
that while he is interested in reconsidering Auer, the chief justice has not yet decided whether the standard should
“It is notable in Perez that the Chief Justice joined the Court’s opinion,” which restates prior decisions establishing
deference to agencies’ readings of rules, attorney Seth Jaffe said in a blog post at Law And Environment.
“He signed on to the opinion of the court, and it relies on — or certainly does not call into question — agency
authority to interpret regulations. I’m skeptical that Roberts would turn away from a principle after signing on to an
opinion that states it,” Jaffe said in a March 10 interview with Inside EPA.
While he would still be likely to vote for review in a case testing Auer, Jaffe continued, Roberts appears unlikely to
vote with the conservatives to overturn the deference rulings. “On these issues, Alito, Scalia and Thomas are not on the
same page as Roberts and [Justice Anthony] Kennedy. They may agree on individual cases, but they have very different
philosophical positions.”
However, an attorney specializing in administrative law says Roberts’ silence on the issue in Perez is no reason to
assume that he would vote to uphold Auer in future litigation, and that Kennedy might also be persuaded.
“I don’t think it would be very hard to find a fifth justice to overturn” the Auer doctrine, the attorney says. — David
Lawmakers Cite EPA Rules In Push For ‘Moderate’ Regulatory Reform Bills
House and Senate lawmakers are citing what they see as burdens from EPA air, water and other rules as justifying
their push to advance “moderate” regulatory reform efforts, claiming they could win support from Democrats and other
opponents of past reform efforts by using the bills to create a more effective regulatory process.
But several House Democrats who have criticized such measures in the past are downplaying prospects for similar
efforts advancing now, fearing that the bills would largely be vehicles for Republicans and other critics of EPA to block
regulations they oppose. The Democrats warn that the legislation being pushed would largely focus on scrapping
existing rules deemed to create burdens and do little to advance new or more effective regulations.
Debate over regulatory review and reform has been ongoing for years, but legislative efforts to resolve the issue
have failed to gain traction due to disagreements among lawmakers.
The Obama administration has taken some steps to advance regulatory review, including the president’s Executive
Order 13563 requiring agencies to undertake retrospective reviews of their policies to reduce burdensome, unnecessary
or duplicative rules. EPA has pursued such reviews, most recently in a March 9 Federal Register notice that seeks
public comment on potential options for streamlining reporting requirements in its regulations.
Some lawmakers argue that various EPA policies justify the need for comprehensive legislation to update the
regulatory process. At a March 2 Progressive Policy Institute (PPI) event in Washington, DC, Rep. Krysten Sinema (DAZ) said bills to amend or strike existing rules deemed duplicative or unnecessary are garnering “broad bipartisan
support” in part because of what she and other legislators at the event described as regulatory overreach by EPA, and
added that the main bar to passing the bills may be scheduling a House floor vote.
“The challenge is just getting the bill on Mr. [House Speaker John] Boehner’s radar and getting it to move,” she
said during a panel discussion of regulatory reform bills with Rep. Ted Yoho (R-FL).
But Sinema told Inside EPA after the event that “I have no idea” whether Obama would veto such bills even if they
clear Congress with Democratic support.
Sinema and Yoho are co-sponsors of H.R. 484, which would create an expedited procedure for Congress to vacate
or amend through joint resolutions agency rules identified by the Government Accountability Office as “duplicative” in
its annual regulatory report. The bill was introduced Jan. 22 and referred to the House rules and government oversight
committees. Relevant documents are available on InsideEPA.com. See page 2 for details. (Doc. ID: 179522)
“For many folks on the left, their goal is to have a well-run regulatory system where there’s clarity and safety for
consumers, but the best way to get that is to have simple, clear regulations that are easily implemented and understood,
and to reduce the number so that people aren’t falling into these mistakes,” Sinema said at the PPI event.
In their remarks at the event, Sinema, Yoho and Sen. Angus King (I-ME) cited EPA rulemakings — including the
ENVIRONMENTAL POLICY ALERT — www.InsideEPA.com — March 18, 2015
final Clean Air Act mercury air toxics standard and the controversial proposed rule on which waters are “jurisdictional”
under the Clean Water Act (CWA) — as evidence of the need for regulatory reform.
“There needs to be a more subtle kind of economic analysis [of regulatory impacts], and I’ve said this to EPA,”
King said. He added later that “I think we’re going to have moderate reform but not extreme reform, because . . .
Democrats are willing to listen.”
Some agency critics are also calling on Congress to enact a “regulatory budget” that would limit the total compliance costs EPA and other agencies can require regulated entities to shoulder in a given year. Under a regulatory budget
an agency would have to loosen existing regulations in order to tighten others or enact new rules.
The House Judiciary Committee’s panel on regulatory reform held a March 2 hearing on three regulatory
review bills. At that hearing, full judiciary panel Chairman Rep. Robert Goodlatte (R-VA) singled out the CWA rule and
EPA’s proposal to tighten the ozone national ambient air quality standard — which Republicans have attacked as
unachievable and expensive — as underscoring the need for regulatory review.
And Sam Batkins, director of regulatory policy at the self-described “center-right” American Action Forum, who
was one of the witnesses at the hearing, pushed for Democratic support of the bills. “The goal is not to undo the regulatory state. The goal is to improve it.” And he touted potential savings for individuals and small business owners from
reduced compliance costs as “the equivalent of a progressive tax cut.”
But Democrats appeared to reject the argument that they should back the current push for regulatory review
legislation in order to help create a more effective regulatory regime.
For instance, regulatory reform subcommittee ranking member Rep. Hank Johnson (D-GA) called H.R. 1155 —
which would establish a panel to identify “unnecessarily burdensome” rules — “a one-way ratchet for prioritizing costs
over benefits” because it offers no mechanism for identifying regulations that need to be strengthened or otherwise
improved rather than being cut.
Along with H.R. 1155, the bills under consideration by the House Judiciary Committee are H.R. 348, which would
accelerate environmental reviews of permits, and H.R. 712, which would set new requirements for public participation
in settlements between citizen groups and agencies that would set deadlines for rulemaking — a practice Republicans
have termed “sue and settle” but which EPA and environmentalists have countered does not affect the content of rules.
Meanwhile, EPA in its recent Register notice on regulatory review seeks comment through April 8 on a host of
issues related to reporting mandates, including suggestions for which regulations that still rely on paper reporting can be
transitioned to electronic reports; which rules create redundant or overlapping reporting requirements; and whether any
regulations could move away from reporting altogether in favor of advance monitoring techniques. — David LaRoss
EPA ‘Tier 3’ Advocates Say Oil Sector’s Fears Over Rule Proven Unfounded
Proponents of EPA’s final “Tier 3” fuel air rule say current low gas prices combined with the oil sector’s decision
not to sue over the rule despite claims it would spur gas price spikes show industry’s attacks on the rule were unfounded, echoing what advocates say was a flawed “train wreck” campaign utilities waged against EPA air rules.
Petroleum industry officials counter that EPA only finalized the Tier 3 standards in April and the rule will not be
implemented until 2017, so its real world costs remain to be seen despite current gas prices. “Our study showed that Tier
3, like any regulatory requirement, increases business costs, but we cannot speculate on pump prices. Also, keep in mind
that Tier 3 hasn’t been implemented yet,” says an American Petroleum Institute (API) official.
While EPA was developing the Tier 3 rule — which sets limits on sulfur in fuel and revises vehicle emissions
standards — it prompted support from states seeking mobile source pollution cuts and environmentalists, who said it
would help states attain agency air standards while also helping to protect public health.
But it drew opposition from fuel sector groups who warned that compliance would impose massive costs, and that
these costs would be passed on to consumers through gas price increases.
For example, API initially touted a study saying the rule would cost refiners 12 to 25 cents per gallon more to
produce a gallon of gasoline, and that four to seven refineries would close rather than comply. The group then revised
the prediction in March 2012, based on less-aggressive assumptions, to a cost of 6 to 9 cents. API stressed at the time
that this was the extra predicted cost to refiners, not the direct extra cost incurred by consumers.
EPA in its regulatory impact analysis, published to support the April 28 final rule, said the fuel sulfur cut “is
expected to increase manufacturers’ costs of gasoline production by about 0.7 cents per gallon.
Despite harsh criticism from the oil sector that EPA’s cost-effectiveness analysis to justify the rule was seriously
ENVIRONMENTAL POLICY ALERT — www.InsideEPA.com — March 18, 2015
flawed, neither API nor the American Fuel & Petrochemical Manufacturers (AFPM) filed suit over the merits of the
final Tier 3 rule. The only litigation over the rule is from ethanol manufacturers concerned with specific provisions
regarding EPA test fuels policy that they say impedes uptake of more ethanol into the fuel supply.
The U.S. Court of Appeals for the District of Columbia Circuit will hear oral argument in Energy Future Coalition,
et al. v. EPA, et al. March 20, but the suit does not challenge the central fuel sulfur limits and emissions controls
established by Tier 3 — the standards that API and AFPM said would cause cost increases.
EPA’s Tier 3 rule has a compliance deadline of January 2017, when refiners will have to supply fuel with a reduced
sulfur content. Car makers will have to comply starting with model year 2017 vehicles. Reducing fuel sulfur content
from the current federal limit of 30 parts per million (ppm) to 10 ppm directly reduces sulfur dioxide emitted by cars,
but crucially also allows catalysts to function better and meet tougher limits on nitrogen oxides.
In addition to the petroleum industry not suing over the Tier 3 rule, the fuels sector has been relatively silent on the
regulation since its issuance. For example, it appears the most recent API press release on the rule was from March 3,
2014. In that statement, API Downstream Group Director Bob Greco said, “This rule’s biggest impact is to increase the
cost of delivering energy to Americans, making it a threat to consumers, jobs, and the economy,” and citing an analysis
by the consulting firm Baker & O’Brien that said the rule could impose $10 billion in capital costs.
At press time gas prices were also low, which some proponents of the Tier 3 rule argue help make that case that the
final regulation is not having the adverse impact on fuel prices that critics projected.
Since 2012, sources note, gas prices have fallen sharply for reasons unrelated to EPA fuel rules, including a rapid
expansion of unconventional oil drilling that API in television commercials touts as soon likely to make the country an
“energy superpower.” This makes the public less receptive to warnings about gas price rises, sources say.
The various factors — the lack of litigation, industry’s silence on the issue and low gas prices — combined
are prompting some supporters of the rule to say it was another example of industry claiming massive costs over an EPA
regulation in an attempt to block it, only to drop such campaigns after the rule’s issuance.
“I think the oil industry complaints were more rhetoric than reality. The fact that the oil industry hasn’t sued
suggests the EPA was right all along in saying Tier 3 would not significantly affect” gas prices, says a clean air advocate.
Several years ago, power companies retreated from using the once-widespread “train wreck” scenario to explain the
threat of EPA rules causing widespread power plant closures and electric grid instability, saying the term lost force as it
no longer reflected reality given EPA outreach to industry on the rules and a sectoral shift toward natural gas.
Reliability concerns with the rules remain, said a former utility regulator at the time, but they are “very localized,”
and focused on the impacts of the rules on a few strategic power plant retirements.
For Tier 3, a Northeastern state air quality expert adds, “I do think this is another example of industry fear-mongering that isn’t panning out, and I don’t think waiting for broader implementation is going to change this.” The source
notes “incidences of the same type of hyperbole when fuel sulfur content changed” with prior rules.
The source says “it’s pretty clear the scary costs aren’t going to happen just looking at the numbers — refining costs
are a relatively small part of the cost of a gallon of gasoline, averaging about 15% over 2000-2011.”
In addition, “there’s also the reality of low sulfur gasoline already being sold in California, the European Union,
and Japan with scant evidence of it sinking their economies,” according to the source. — Stuart Parker
Advanced Biofuels Sector Backs RFS Reform Push But Divisions Emerge
Advanced biofuels producers are joining calls for Congress to overhaul EPA’s renewable fuel standard (RFS),
giving a major boost to refiners and others who have long pushed for reforming the program — but divisions are
emerging in the policy goals that the various groups are urging lawmakers to include in any RFS reform legislation.
In a March 11 statement, the Advanced Biofuels Association (ABFA) says that the current RFS structure and fuel
production targets fail to adequately promote cellulosic fuel and other advanced biofuels and allow refiners to buy
compliance credits rather than purchase the fuels. That contrasts with oil groups who are pushing RFS reform largely to
scrap what they say is an implied corn ethanol “mandate” under the program’s renewable fuel goal.
Bills to either scrap or overhaul the RFS failed to gain traction in the divided 113th Congress and Rep. Ed
Whitfield (R-KY), chair of the House Energy & Commerce Committee’s power panel, recently said the failure to
advance such bills last year means they might also face difficulty moving in the 114th Congress.
But American Petroleum Institute (API) Downstream Group Director Bob Greco on a March 11 conference call
cited ABFA’s first-time backing of RFS reform as joining a “chorus” of critics of the program. Greco on the call said he
believed ABFA’s shift will change the “political calculus” in Congress on RFS reform.
Previously the advanced biofuels sector had resisted the calls for reform and instead pushed EPA to increase the
cellulosic targets in its RFS, which sets annual production goals for alternative fuels. The agency has repeatedly delayed
ENVIRONMENTAL POLICY ALERT — www.InsideEPA.com — March 18, 2015
issuing the annual targets, and also drawn criticism for targets that are either too ambitious or too low.
ABFA’s Michael McAdams said in March 11 remarks at the 2015 Advanced Bioeconomy Leadership Conference in
Washington, D.C. that there is rising frustration in his industry over what he said were obstacles preventing the program
from promoting cellulosic fuels in the same way it has benefited corn-based ethanol.
“After working with EPA since 2009 to attempt to get pathways [to generate cellulosic fuels] approved, feedstocks
approved, annual volume requirements released on time, only to frequently be told from the agency that they do not
have sufficient legal authority to get the job done, it has become clear that statutory changes need to be made to the
RFS,” McAdams said, adding that he believes Congress now needs to reform the program.
ABFA is calling on lawmakers to create a minimum value for renewable identification numbers (RINs) — credits
generated by the production of biofuels that are used by refiners to show RFS compliance — that would be indexed to
the price of oil, providing more support when oil prices are low and less when oil prices are high.
Also, Congress should make clear that the program extends beyond 2022 — it is currently authorized to this point
by law — “to provide sufficient time to develop this industry,” he said. Investors are leery of a potential end to the
program in 2022, ABFA says, making finance for new cellulosic production plants hard to obtain.
Refiners can buy a cellulosic biofuel waiver credit when there is insufficient production of cellulosic biofuel instead
of a RIN, an option that applies only to cellulosic biofuels. Industry sources note that there has been insufficient supply
of the cellulosic fuels in each year of the RFS program.
ABFA wants Congress to close what it calls this “loop hole that allows the oil industry to opt out from buying a
cellulosic gallon with its credit and in lieu buying a waiver credit.”
The RFS “should encourage production of all available advanced and cellulosic biofuels. But just as important, oil
companies must be required to purchase what is produced,” ABFA says.
But Growth Energy and the Renewable Fuels Association (RFA), representing the corn ethanol sector, on their own
March 11 conference call said that ABFM’s strategy is misplaced.
RFA President and CEO Bob Dineen said “we seriously question who AFBA is representing these days, by throwing more uncertainty into the process.” On the same call, Adam Monroe of Novozymes America questioned whether
AFBA speaks for even a majority of advanced biofuel makers.
Growth Energy’s CEO Tom Buis in a prepared statement said, “By opening up the RFS for legislative changes, you
are opening a can of worms that will only create further uncertainty for the industry, which is the last thing biofuel
producers of any kind need. This is a shortsighted proposal that would set the entire renewable fuels industry on the path
to a rollback of the RFS.”
The American Fuel and Petrochemical Manufacturers (AFPM), representing refiners, in a March 11 statement welcomed ABFA’s position that the RFS is flawed, but rejected the group’s proposed solutions. RINs “were never
meant to provide subsidies from one industry to another,” AFPM says. “Despite ABFA’s claims, the RFS does not end in
2022, it goes on in perpetuity,” and hence a “sunset date” is needed to end support for cellulosic fuels.
Further, the “so-called loop hole is in reality one of the few, and certainly and strongest, consumer protection
provisions in this broken law,” AFPM says, warning that without them, costs to consumers could soar. ABFA’s proposal
“adds to further uncertainty, unnecessary costs, and market distortion,” AFPM says.
An API spokesman tells Inside EPA that the group would consider any reform proposal, but API’s position would
depend on the details of any such plan. API says it is currently focused on ending what it calls an implied RFS corn
ethanol mandate, and wants cellulosic mandates reduced to reflect actual production. — Stuart Parker
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House GOP Seeks To Codify EPA’s Coal Ash Rule With
State Enforcement ......................................................... 3
Advocates Warn House Coal Ash Bill Would Weaken
EPA’s Disposal Rule ..................................................... 4
EPA Agrees To 2016 Deadline For Decision On RCRA
Corrosivity Standard ..................................................... 5
District Court Reverses Fox River Liability Following
7th Circuit Decision ...................................................... 6
Environmentalists Eye Impact Of Precedential New
Jersey NRD Deal .......................................................... 7
EPA PM2.5 SIP Rule Shows Effect Of Ruling Requiring
Stricter Air Controls ..................................................... 8
EPA’s Utility MACT Cost Review May Protect Rule
Under Potential Remand .............................................. 9
Reversing Position, EPA Says ‘Flexible’ Air Permitting
Will Not Avoid NSR ................................................... 11
Advocates Raise Doubts Over SO2 Data Underpinning
Major EPA Air Rules .................................................. 12
Utility Fights EPA Claims Of Air Law Violations In
Suit Testing NSR’s Scope ........................................... 13
EPA Rejects Claim Of Extended Compliance Period
Weakening CISWI Rule ............................................. 14
Truckers Plan Supreme Court Appeal Of Preemption
Suit Over State Air Rule ............................................. 14
EPA Puts Onus On Cities To Include Integrated Water
Plans In CWA Permits ................................................ 15
Senators’ Opposition To EPA FY16 Budget Cuts May
Spur Fight With House ............................................... 16
Coal Industry Urges Supreme Court To Reverse CWA
Permit ‘Shield’ Ruling ................................................ 17
Mining Industry Warns Of ‘Confusion’ From EPA’s
Draft Stormwater Permit ............................................ 18
Under Settlement, EPA Steps Up Oversight Of State’s
CWA ‘Areawide’ Plans ............................................... 19
Groups Warn Northwest Water Trading Guide Violates
CWA, EPA Policy ....................................................... 20
NAS Panel Weighs Potential Spill Response Rule
Changes For Oil Sands ............................................... 21
Asbestos Seen As TSCA Reform Test For EPA’s Power
To Ban Chemicals ....................................................... 23
Senators’ Bid To End TSCA Reform Stalemate Could
Create New Hurdles ................................................... 24
EPA Considering Rare Ban Under TSCA For PaintStripping Chemical ..................................................... 25
EAB Scraps Landmark TSCA Penalty But Rejects
Enforcement Time Limit ............................................ 26
Former EPA Official Questions IRIS’ Outdated
Pesticide Risk Assessments ........................................ 27
EPA Rejects State Push To Delay ESPS Implementation
Pending Lawsuits ........................................................ 28
EPA Considers ‘Fallback Options’ For Dropping CCS
From Power Plant NSPS ............................................ 29
Groups Begin To Outline Options For EPA To Drop
CCS From NSPS Plan ................................................ 30
EPA Advances Aircraft GHG Risk Finding For OMB
Pre-Publication Review .............................................. 32
In Novel ESPS Lawsuit, Final Briefs Keep Focus On
Procedural Questions .................................................. 33
EPA Launches Rulemaking To Rescind Portions Of
GHG Tailoring Rule ................................................... 34
High Court Focus On ‘Deference’ Presents New
Hurdles For Major EPA Rules .................................... 35
Lawmakers Cite EPA Rules In Push For ‘Moderate’
Regulatory Reform Bills ............................................. 36
EPA ‘Tier 3’ Advocates Say Oil Sector’s Fears Over
Rule Proven Unfounded ............................................. 37
Advanced Biofuels Sector Backs RFS Reform Push
But Divisions Emerge ................................................. 38
ENVIRONMENTAL POLICY ALERT — www.InsideEPA.com — March 18, 2015