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Vol. 35, No. 42 - October 17, 2014
Industry Expects EPA To Ease Or Drop Controversial Interim Targets In ESPS
Power industry sources say they expect EPA to ease or perhaps even eliminate the interim greenhouse gas (GHG)
targets that states must meet by 2020 under its rule for existing power plants, suggesting that this is one area where
agency officials are privately indicating a willingness to make a substantive change to the proposed regulation.
“We are not anticipating wholesale changes to the final rule, given the commitment by President Obama and EPA.
The one issue in play is the timing of the 2020 interim standard, which is more stringent than the final limit on a relative
scale,” one industry source says. “There is a lot of pushing [EPA] to just focus on 2030 and not the interim deadline.”
While environmentalists strongly oppose any easing or elimination of the interim targets, several top EPA officials
continued on page 8
States Raise Implementation Concerns Over Draft EPA Selenium Criteria
States are calling for clarity on how to implement EPA’s draft water quality criteria for selenium that relies partially
on fish-tissue concentrations for assessing adverse effects to aquatic life, suggesting that monitoring costs could strain
already tight state budgets, even as two states are pursuing studies that could address some of the concerns.
Many states generally support EPA’s efforts to set values for selenium based on levels of the pollutant in fish
tissues, rather than the water column, because it allows for greater consideration of site-specific factors, and vigorously
pressed EPA to update its decades-old criteria that industry struggled to meet in discharge permits.
But EPA’s May 14 draft criteria, which set both water concentrations and fish tissue limits but gives precedence to
continued on page 11
Corps Unveils Guide To Clarify ‘High Water Mark’ Core To CWA Decisions
The Army Corps of Engineers has unveiled guidance aimed at clarifying how regulators can assess the boundaries
of an “ordinary high water mark” (OHWM) parameter used in Clean Water Act (CWA) jurisdictional determinations,
although the guide’s impact on EPA’s and the Corps’ pending rule to define the scope of the water law remains unclear.
In response to the guidance — posted in recent weeks to the Corps’ website — the Waters Advocacy Coalition
(WAC) of various major industry groups says the documents “essentially ignore the regulatory definition” of OHWM
and represent a “clear change in regulatory practice” that will have a “substantial effect in how CWA jurisdiction is
interpreted.” Relevant documents are available on InsideEPA.com. See page 2 for details.
continued on page 13
Wastewater Industry Seeks EPA, CDC Answers On Risk From Ebola Virus
Wastewater industry officials are seeking a joint statement from EPA and the Centers for Disease Control and
Prevention (CDC) clarifying the degree to which wastewater workers near healthcare facilities treating patients with the
Ebola virus are at risk of infection, and what precautions are necessary for prevention.
Current information available from the CDC and the World Health Organization suggests that although Ebola is not
a foodborne, waterborne or airborne illness, it is transmitted through direct contact with “infected bodily fluids” such as
blood, vomit and feces. It is believed that the virus can survive in water, outside of the host, though sources differ on
how long it can live outside the host.
continued on page 15
Inside
AIR: Court Poised To Hear Suit Over Bid For Giant Ozone ‘Nonattainment’ Area .............................. page 3
WASTE: 7th Circuit Vacates Novel Superfund Cleanup Order Enforcement Approach ...................... page 5
CLIMATE: Dual Regulation Makes Modified Source GHG Rule Unlawful, Industry Warns ................ page 9
WATER: Water Utilities Eye EPA Integrated Planning Awards To Boost Future Funding ................. page 17
TOXICS: Environmentalists Threaten Suit Over EPA Pesticide Approval For GM Crops ................. page 20
EPA Inspector General Announces Formal Review Of Prior Staff Buyouts
EPA’s Inspector General (IG) is formally opening a review of the agency’s staff buyouts during 2013, including firsttime public assessments of what goals officials set for the staffing reductions and whether major offices were able to
reach their targets, as well as how EPA has restructured since implementation.
The IG’s office published an action initiation announcement for the study Oct. 8, signaling that inspectors will begin
meeting with agency officials in the coming weeks to lay groundwork for their investigation. The announcement is
available on InsideEPA.com. See page 2 for details.
While the IG review begins, EPA is in the midst of another buyout program, with union officials arguing that the
agency has failed to negotiate on how it will restructure the workforce after employees depart. Union representatives are
threatening an unfair labor practice complaint to force the negotiations (Inside EPA, Oct. 10).
According to the IG’s announcement, the review of the 2013 buyouts will seek to address four questions: “1. What
workforce restructuring goals were identified by program and regional offices? 2. How consistent were these goals across
the agency? 3. What progress have the offices made in executing their restructuring plans? 4. Did the major offices
achieve their goals in restructuring the organization?”
The IG’s memo says it will examine the use of both voluntary early retirement authority, which allows the agency to
lower age and service requirements for retirement, and voluntary separation incentive payment that allows lump-sum
payments for leaving EPA. It does not set a target for finalizing or publishing the study.
EPA Administrator Gina McCarthy has credited the controversial 2013 buyouts with giving the agency the ability to
eliminate its freeze on hiring new employees and giving program offices more flexibility on how to make new hires.
However, the agency has never disclosed how many employees accepted the offers.
With EPA currently in the midst of rolling out a new round of buyouts, union officials have said they need more
information on how many employees were targeted for cuts in 2013, and how the agency plans to restructure after the
new reductions, in order to adapt to reduced staffing levels.
For instance, sources say they believe EPA is targeting the current round of buyouts based on whether individual
regions and headquarters offices were able to meet targets for staff reductions in 2013, but they do not have access to the
2013 targets.
According to buyout proposals obtained by Inside EPA, the agency is aiming to begin phasing out employees in
January. Both the prior round of buyouts and the upcoming plan are part of the agency’s strategy to reduce its spending at
a time of dwindling federal funding.
The buyout investigation is among the first initiated under the IG’s new fiscal year 2015 agenda, which was also
released Oct. 8. Other studies planned for the coming year will scrutinize the quality of the agency’s oversight for major
air, water and waste programs, as well as more specific reviews targeting fuel standards, water infrastructure loans, and
others
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 Inside EPA. The following are some of the documents available from this issue of Inside EPA.
For a full list of documents, go to the latest issue of Inside EPA on InsideEPA.com. For more information about
InsideEPA.com, call 1-800-424-9068.
Documents available from this issue of Inside EPA:
„ 7th Circuit Vacates Novel CERCLA Enforcement Approach In Fox River Case
„ Corps Issues Guides For Key CWA Jurisdiction Metric
„ Environmentalists Appeal Pesticide ‘Mega’ Suit
„ EPA IG Announces Review Of 2013 Staff Buyouts
„ EPA IG’s FY15 Agenda Targets Agency Oversight On Major Programs
„ EPA Registers 2,4-D For Use With GM Crops
„ EPA Seeks To Block Suit Over Wet Weather ‘Blending’ Memo
„ Ethanol Producers File Opening Brief In EPA Tier 3 Rule Suit
„ Groups Oppose New EPA Approach To Pollinator Protection
„ Power Sector Climate Group Urges EPA To Ease 2020 ESPS Targets
„ States Raise Implementation Concerns Over Draft EPA Selenium Limits
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.
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INSIDE EPA - www.InsideEPA.com - October 17, 2014
Court Poised To Hear Suit Over Bid For Giant Ozone ‘Nonattainment’ Area
The U.S. Court of Appeals for the District of Columbia Circuit will hear oral arguments Oct. 21 in a consolidated suit
through which Delaware and Connecticut are seeking the first-time creation of a giant area designating several states as
out of attainment with EPA’s 2008 national ambient air quality standards (NAAQS) for ozone.
Nonattainment areas must impose strict pollution controls on industry, and face the ultimate sanction of losing federal
highway funds if they do not meet the NAAQS. In Mississippi Commission on Environmental Quality, et al., v. EPA,
Delaware and Connecticut are pressing EPA to designate a vast swath of the Eastern United States as out of attainment, in
order to force Clean Air Act requirements for those areas to reduce air pollution.
The two states, which historically have struggled with high ozone levels, are pursuing the idea as a way to address
interstate transport of ozone and its precursor pollutants, after two EPA emissions trading programs designed to solve the
problem of ozone-forming pollutants were struck down by the D.C. Circuit in prior rulings.
The court remanded the Bush-era Clean Air Interstate Rule (CAIR) trading program to EPA, and scrapped the
Obama EPA’s Cross-State Air Pollution Rule (CSAPR) that was designed to address the legal flaws in CAIR.
The Supreme Court reversed the CSAPR ruling, although a stay that the court put on the rule’s implementation
currently remains in effect. EPA has asked the court to lift the stay so that it can reinstate CSAPR.
CSAPR is designed to help states reduce their air pollution levels and attain EPA’s ozone NAAQS, but the pending
litigation faults the agency’s approach to designating areas as either meeting or exceeding the standards.
In Mississippi EPA is defending its traditional approach to designating areas based on whole or partial counties or
clusters of adjacent counties, saying it has discretion under the Clean Air Act to do so. The agency says its method is
derived from presumptive boundaries Congress set for initial ozone designations under the air law amendments of 1990,
which were based on metropolitan areas. When EPA sets the areas, it considers air quality in urban areas and their
surroundings, and also linkages between outlying areas and urban cores such as commuting patterns.
Environmentalists in the consolidated case, meanwhile, are suing EPA over what they say is the agency’s illegal
decision to use older air monitoring data, from 2009-2011, to designate areas, rather than newer data gathered from 20102012 that would have shown many more nonattainment areas.
Environmental groups say EPA intentionally avoided the newer data, even though it was available, in order to
minimize the number of nonattainment areas. The agency denies this, noting that many of the newer data were not yet
certified for use when it made its decisions on attainment areas.
Other states in the case, including Mississippi, Texas and Indiana, are suing EPA over what they argue are wrongfully
expansive nonattainment designations, including outlying areas of metropolitan centers that are in nonattainment such as
Wise County, TX, and Porter County, IN. Again, EPA argues it has discretion to determine the factors that tie such
outlying areas to nonattainment areas. — Stuart Parker
IG’s FY15 Plan Includes Scrutiny Of EPA’s Oversight For Major Programs
EPA’s Inspector General (IG) is floating a fiscal year 2015 agenda that includes planned scrutiny of the quality of the
agency’s oversight for major air, water and waste programs, as well as a host of other reviews ranging from EPA’s
implementation of rules to cut vehicle benzene emissions to its responses on pesticide regulation petitions.
The IG’s FY15 plan, released Oct. 8, details the office’s carryover work continued from the FY14 plan; its mandatory work
required by law and its discretionary work, through which the IG identifies agency activities or programs to assess. FY15
started Oct. 1 and ends next Sept. 30, and the agenda outlines the initial work that the IG will do during the fiscal year — yet
external circumstances could prompt it to take on new work. The plan is available on InsideEPA.com. See page 2 for details.
“Although this plan provides a framework for activities we intend to carry out in FY 2015, the [IG] is often required
to perform unanticipated work based on legislative mandates, congressional inquiries, hotline requests or
governmentwide reviews,” wrote EPA IG Arthur Elkins, Jr. in an introduction to the plan.
“This document describes how the [IG] will achieve its statutory mission of promoting economy, efficiency, effectiveness and integrity relating to the programs and operations of the EPA,” Elkins wrote. “This plan reflects the priority
work that the [IG] believes is necessary to keep the Administrator and Congress fully informed about problems and
deficiencies relating to the administration of agency programs and operations.”
As part of the plan, the IG will pursue at least two separate reviews of EPA’s effort to shift monitoring and compliance regimes to a computerized format to improve enforcement data.
One review will target the use of electronic reporting to enhance enforcement actions, with that review examining
whether the “e-reporting” regime is producing effective results. The inspection is set to begin in January, and it could be
critical as e-reporting is expected to be the keystone of the agency’s nascent “next generation” enforcement initiative,
which will rely more on compliance reports and less on site inspections than the current regime.
A separate investigation of the ongoing development of a system using electronic manifests to tracking hazardous
waste, is targeted for beginning in May of the coming year.
The IG’s Office of Program Evaluations — which addresses EPA programs and regulations directly and often
INSIDE EPA - www.InsideEPA.com - October 17, 2014
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produces reports with the most direct impact on the agency’s rules and policies — has new reviews across all of the
agency’s program areas ranging from air and waste to water and toxics.
For the water sector, the office will evaluate EPA’s oversight of the state revolving fund (SRF) programs, which use
revolving loans to support state and local governments’ water infrastructure projects.
In particular, the IG will be assessing whether states are adequately tracking the use of funds, and whether EPA
regions follow headquarters guidance documents in administering the loans, as well as the effectiveness of the Green
Reserve program, which uses SRF loans for conservation purposes.
EPA’s programs designed to protect drinking water from contamination, and to reduce the hazards from mercury
contamination in fish, are also up for evaluation, as is the effectiveness of the BEACH Act — which aims to monitor
contamination in waters used for public recreation, and which the Obama administration has sought to discontinue.
Reviews targeted at the agency’s Office of Air & Radiation include an evaluation of EPA’s enforcement actions
against facilities that experience pollution spikes as a result of startup, shutdown and malfunction (SSM) events. EPA in
prior years offered a defense against liabilities for violating Clean Air Act emissions limits if the pollution increases
occurred during SSM events, but a federal appeals court in 2008 scrapped the defense as unlawful.
EPA tried to craft an “affirmative defense” as a replacement for the SSM exemption, but the same appeals court also
scrapped that policy earlier this year, and the agency is moving to delete the defense from its rules.
According to the FY15 plan, the IG is also set to examine the effectiveness of compliance assurance activities for
both “major” and “synthetic minor” sources of air pollution, EPA’s implementation of fuel rules to cut vehicles’ benzene
emissions, and efforts to address workload imbalances in the air office’s risk management program.
New IG investigations of the waste office focus on EPA’s progress toward meeting the Resource Conservation and
Recovery Act’s mandate for minimum inspection frequency at hazardous waste sites.
Another waste office review seeks to confirm the agency’s ability to prove it has addressed “imminent and substantial
endangerment” threats at sites where time is a critical factor in the cleanup.
While active inspections of the Hurricane Sandy cleanup have concluded, the IG is separately readying a new review
of the long-term risks from the short-term disposal of debris from natural disasters.
The IG’s planned reviews for EPA’s toxics office include a broad review of the reported results of activities funded
through pollution prevention grants, as well as an investigation of the Office of Pesticide Programs’ review of insect data
submitted by the manufacturers of genetically engineered corn, and the agency’s responsiveness to public petitions that
seek regulatory or other action on pesticide issues.
The IG meanwhile lists the need for improved management oversight to combat fraud and abuse as a new priority in
its inventory of EPA “management challenges” — a possible response to the case of former EPA air official John Beale,
who defrauded the agency out of thousands of dollars in pay.
“Recent events and activities indicate a possible ‘culture of complacency’ among some supervisors at the EPA
regarding time and attendance controls, employee computer usage, and real property management. EPA managers must
emphasize and reemphasize the importance of compliance and ethical conduct throughout the agency and ensure it is
embraced at every level,” the IG says in the agenda.
The plan also signals that the IG will increase its focus on identifying issues that could be the subject of civil,
criminal or administrative penalties, as opposed to voluntary corrective action.
The office sets a target of 131 civil, criminal, administrative or fraud-protection actions to be taken as a result of its
work — up from a target of 90 in the FY14 plan — and predicts a 139 percent monetary return on investment from the
office, up from the 125 percent goal from FY14.
Those figures come as the office has revised downward the expected number of environmental and business recommendations and risks expected to be the subject of recommendations for corrective action. OIG is setting goals of 721
recommendations and 260 actions taken as a result of the office’s work, both of which are down from FY14 targets of 786
and 307, respectively. — David LaRoss
NAS Urges Use Of New Toxicity Tests In EPA Chemical Alternatives Analyses
The National Academy of Sciences (NAS) in a new report has outlined a new framework for EPA to use when
analyzing replacements for chemicals of concern, urging the agency to consider several elements missing from existing
frameworks, such as comparative exposures, new types of toxicity data and determining the scope of the analysis.
The committee that produced the report reviewed a dozen or so existing alternatives analysis frameworks, but
determined that none were “ideal,” and decided to design its own framework. The report explains, “The committee
identified several elements that were often missing from existing frameworks. For example, despite the known importance
of exposure, many frameworks downplay it and focus on inherent hazards of chemicals. This approach assumes that
chemical alternatives would result in similar exposure levels to people, animals, and the environment and is in contrast to
an approach that addresses both inherent hazard and exposure.”
The report continues, “Many frameworks also do not consider the decision-making process or decision rules used for
resolving trade-offs among different categories of toxicity and other factors (e.g., social impact), or the values that
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underlie such trade-offs. Also absent from several frameworks is the use of novel toxicity data streams, in silico computational models, and methods to estimate physicochemical information.”
The report, released Oct. 10, outlines what the committee considers “several important unique elements or advancements” that its alternatives analysis framework holds over existing frameworks. These include “a focus on scoping and
problem formulation; an increased emphasis on comparative exposure assessment; increased use of physicochemical
properties to assess human health and ecotoxicity hazards; a two-tiered approach to evaluating chemical alternatives that
includes health and ecotoxicity, followed by a consideration of broader impacts; and recognition of the need for research
and innovation.”
The scoping and problem formulation recommendation is similar to advice EPA received in NAS’ 2009 report,
“Science and Decisions: Advancing Risk Assessment,” where NAS urged EPA to perform such exercises to better define
risk assessments before undertaking them. Planning helps tailor the assessment and its level of complexity to the issue at
hand, that report argued. Similarly, NAS’ new report, “A Framework to Guide Selection of Chemical Alternatives,” urges
analysts to define the “goals, principles and decision rules,” that will govern alternatives analyses.
Another area the committee felt received short shrift in existing frameworks is consideration of comparative exposure assessments, and it urges improving that. The report “recommends that the potential for differential exposure (in the
absence of exposure-mitigating protection) between the chemical of concern and alternatives be explicitly considered
rather than assuming equivalent exposure.”
Near the end of the framework, the committee explains that if no appropriate alternatives are found, “research and
innovation” will be needed to address the chemical of concern. “Two types of innovation are important: the design of new
chemical alternatives and the identification of ways to meet the ultimate needs of industry and the consumer using
approaches other than direct chemical substitutions.”
Among the frameworks that the committee reviewed before crafting its own was the approach utilized by EPA’s
Design for the Environment (DfE) program. DfE is a non-regulatory program within EPA’s Office of Chemical Safety and
Pollution Prevention whose staff work with industry partners and other stakeholders to determine alternatives to chemicals of concern in their products. Environmentalists have long criticized DfE’s approach to alternatives analyses because
they believe the approach does not place sufficient weight on endocrine disrupting chemicals’ toxicity nor does it consider non-chemical or engineering approaches to replacing chemicals of concern.
The NAS committee, also, does not speak much to the idea of engineered or non-chemical alternatives, because
EPA’s task for the committee focused on chemical alternatives, the report explains. “Although changes to materials or
designs might also provide alternatives to chemicals of concern, the Statement of Task specifically directs that the
framework should address safer substitute chemicals, and thus the committee’s framework is focused on the case of
chemical substitution,” the report explains in a footnote.
When the committee members first convened in November 2013 some panelists questioned whether EPA, and the
committee, should consider engineering alternatives in analyses. Responding to their questions, EPA’s toxics chief, Jim
Jones, said any consideration of engineered solutions should not be the primary focus of an assessment. Engineered
solutions “may be a desirable element, but I don’t think it would be [that] you couldn’t have a good [alternative assessment] without it,” he said.
But the committee leaves some flexibility in its framework for what it calls de novo designs to address “cases where
alternatives assessment is not, by itself, sufficient to identify a viable option.” — Maria Hegstad
7th Circuit Vacates Novel Superfund Cleanup Order Enforcement Approach
A federal appeals court has vacated a novel permanent injunction intended to enforce a Superfund cleanup
order for sediment contamination in Wisconsin’s Fox River even though cleanup obligations had not been delineated, a strategy some attorneys believe would have made it easier for EPA to hold multiple parties responsible for
remediation work.
The U.S. Court of Appeals for the 7th Circuit’s Sept. 25 ruling in United States v. P.H. Glatfelter Company, et al.
finds the use of a permanent injunction in the case an “inappropriate mechanism to enforce an administrative order” under
section 106(b) of the Comprehensive Environmental Response, Compensation & Liability Act (CERCLA). If the injunction had been upheld, it would have set a precedent.
The decision is a “significant setback to the enforcement strategy of the [federal] government with respect to sites
like this,” one Superfund attorney familiar with the case says. The attorney says EPA had threatened similar injunctions at
other sediment sites, such as in the Passaic River sediment cleanup in New Jersey.
On a separate issue, the court also appeared to open the door to potentially applying divisibility of harm in the case.
The court allowed that a potentially responsible party (PRP) may be able to show divisibility of harm to apportion its
share of remediation costs for sediment contamination, reversing a lower court’s ruling that viewed the contamination and
resulting harm as “binary in nature.” The decision is available on InsideEPA.com. See page 2 for details.
The case involves the cleanup of contaminated sediment stemming from paper mill discharges of polychlorinated
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biphenyls (PCBs) into Wisconsin’s Lower Fox River.
One issue decided by the court was whether EPA can obtain a permanent injunction under CERCLA to enforce a
unilateral administrative order (UAO), especially when there is no allegation that a PRP has violated the UAO or before
cleanup obligations are delineated (Superfund Report, July 25). The permanent injunction required a multitude of PRPs at
the site to comply with the UAO, even though one of the PRPs had already committed to perform the cleanup.
The case centers on a 2007 cleanup order EPA issued under CERCLA section 106, requiring a combination of
dredging and capping of a portion of the site known as operable unit 4 (OU4), the court says. The litigants in the case,
NCR Corporation and P.H. Glatfelter Company, are PRPs because they or their predecessors discharged wastewater
containing PCBs from paper mills into the river for decades, the court says. Since the cleanup decision, the agency
revised its cost estimate for the work from $432 million to $701 million.
NCR argued it was not responsible for all of the cleanup, but a district court rejected its contribution claims and
required NCR to reimburse other PRPs for their response costs, at which time NCR stopped complying with EPA’s 2007
order.
The U.S. District Court for the Eastern District of Wisconsin followed in 2012 with a preliminary injunction against
NCR to complete the remediation work, which the 7th Circuit affirmed. Later the district court granted a request by EPA
for a declaratory judgment and to make the injunction permanent and enforceable against other PRPs at the site. The
district court rejected arguments by Glatfelter and other PRPs that there is no reason to order them to comply with the
UAO, given that NCR will be ordered to continue complying and NCR has the means to do so.
NCR and Glatfelter appealed, asking the 7th Circuit to vacate the declaratory judgment and permanent injunction.
The 7th Circuit in its Sept. 25 decision holds that the district court erred in considering NCR’s divisibility defense
and in its permanent injunction, but correctly resolved other issues before it.
On the injunction issue, the court lists at least three reasons for rejecting a permanent injunction. First, it notes the
differences between section 106(a) — which authorizes injunctions in emergency situations, weighing the “equities of the
case” — and section 106(b) — which authorizes EPA to enforce a UAO. It notes that equitable considerations “play no
part” in enforcing UAOs under section 106(b). But if courts were to conduct the traditional analysis used for injunctive
relief in deciding whether to enforce a UAO, “they would inject equitable considerations where they do not belong,” the
court says.
Second, entering an injunction that simply orders PRPs to comply with a complex cleanup order issued by EPA may
run afoul of Federal Rule of Civil Procedure 65(d)(1)(C), which requires injunctions to describe in detail actions required
or restrained. “Accordingly, permanent injunctive relief is incongruous with the nature and purpose of an action to
enforce an administrative cleanup order under CERCLA [section] 106(b).”
Third, the court says a permanent injunction is not needed as a means for enforcing a UAO, “as the statute already
provides for civil penalties of $25,000 per day that a PRP fails to comply with such an order ‘without sufficient cause.’”
The attorney familiar with the case says the ruling is “significant in that the government cannot convert a UAO into
an injunction.”
Alston & Bird LLP attorneys Jonathan Wells and Ronnie Gosselin emphasize this point in “client advisory” documents, saying, “Importantly, the Seventh Circuit’s holding in Glatfelter makes clear that CERCLA does not permit EPA to
make an end-run around the legal requirements for permanent injunctive relief.”
Another attorney following the case previously said that any appeals court decision affirming use of a permanent
injunction such as this “would be of immense value and precedent” and was likely to result in EPA seeking permanent
injunctions at other sites.
On the divisibility issue, the court found that if NCR could show the extent of its contribution of PCB
concentrations to the section of river being cleaned up under a Superfund order, then harm could “theoretically” be
apportioned.
The 7th Circuit says the evidence at trial shows the lower court oversimplified harm as binary. The appeals court says
that the district court was wrong to view remediation costs as an on/off switch, with PCB concentrations below 1.0 parts
per million — EPA’s maximum safety threshold — imposing no cleanup costs, and sediment with PCB levels above 1.0
ppm always imposing about the same level of remediation costs. The court adds that even EPA’s target surface-weighted
average concentration (SWAC) of 0.25 parts per million in sediment “does not amount to a boundary between harmfulness and geniality.” For instance, it points out that lower levels than that can pose a threat to human health and the
environment, and that “not all concentrations above EPA’s remedial thresholds are equally harmful; the risk of harm
increases with concentration even at high levels.”
The court concludes that “neither the PCB contamination in OU4 nor the associated remediation costs are binary in
nature. However, remediation costs are still a useful approximation of the degree of contamination, because both
remediation costs and the relevant measure of contamination (SWAC) are positively correlated with the concentration of
PCBs near the surface, even for concentrations that exceed the remedial action level of 1.0 ppm.”
As a result, the court says it believes “the harm would be theoretically capable of apportionment if NCR could show
the extent to which it contributed to PCB concentrations in OU4. And if NCR cleared that hurdle, we think a reasonable
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basis for apportionment could be found in the remediation costs necessitated by each party.”
The attorney familiar with the case says the 7th Circuit is giving NCR another crack at proving divisibility.
The ruling on divisibility sends the message that PRPs should take note and consider opportunities for limiting their
CERCLA liability through apportionment, one attorney, Robby Sanoff, recently wrote in his law firm’s blog. While many
courts have shied away from apportionment despite the Supreme Court’s 2009 ruling in Burlington Northern and Santa
Fe Railway Co. v. United States that liability under Superfund could be apportioned, the 7th Circuit “has now reversed
field, ruling that the trial court erred in failing to recognize the possibility that the harm might be shown to be divisible,”
Sanoff, with the firm Foley Hoag, says in the blog.
“In the end, the Seventh Circuit decision underscores that PRPs should not overlook the opportunity to limit their
CERCLA liability through apportionment,” Sanoff says. “It’s hard to imagine a multiparty Superfund site where expert
opinion cannot be found to offer a basis for dividing up the response costs in some mathematical way.”
Groundwater Sector Seeks Clarity From States, EPA On Aquifer Permitting
Groundwater industry officials are calling for states and EPA to provide what they see as much-needed clarity on
permitting requirements for aquifer storage and recovery (ASR) operations, saying that questions over which permits
ASR sites must obtain could be the “single most important challenge” to planning such operations.
In addition to EPA and state Safe Drinking Water Act (SDWA) permits, ASR operations often require water rights
permits from separate agencies, says the National Ground Water Association (NGWA) in a recent report covering best
management practices for ASR. NGWA represents the groundwater sector, and it says that confusion over the varying
permitting requirements could create burdensome delays in getting needed authorizations for projects to move forward.
Gaining a full understanding of which state and federal agencies require and issue permits — such as Clean Water
Act “Class V” underground injection permits and state “water rights” requirements — for ASR is a major challenge, says
the group’s report, “Best Suggested Practices for Aquifer Storage and Recovery.”
Adding to the confusion is that it is often difficult to determine the “type” of SDWA underground injection control
(UIC) permit required, the report says. While ASR is generally regulated under Class V EPA rules, a UIC category for
more than 20 different industrial sectors, including aquaculture, agriculture, energy, food processing and others, some
UIC programs may have additional requirements for ASR facility and construction, the group adds.
“However, some states which have not been delegated primacy for the Class V program (i.e., the regional U.S. EPA
administers the program) may also require a separate, additional “discharge” permit to construct and operate ASR
facilities, complicating the permitting process,” according to the report.
Additionally, states may require a water rights permit to allow the transfer of water rights normally associated with
ASR facilities, the report says, and those permits are often governed by a different state agency than the one responsible
for environmental permitting.
Moreover, though states generally have water rights authority, if a water withdrawal for an ASR project has potential
to impact endangered species and wetlands, there may be another layer of federal involvement, the report, which the
group announced earlier this month, says.
The report generally addresses a number of components of ASR operations, such as well design, drilling methods and
monitoring, while highlighting some of the existing challenges, including confusion over permitting authority and the
potential for some minor contamination to occur through ASR that could lead to enforcement actions under SDWA,
though the public health risks may be small.
The report reflects some of the struggles EPA and the states have had in figuring out a consistent approach to
managing ASR operations — a water management tool that many say is a crucial strategy for mitigating the impacts of
climate change. It involves injection of treated water into an aquifer for future retrieval and use, and the operations are
currently regulated as “Class V” UIC wells under the SDWA, which imposes certain siting and monitoring requirements.
Questions linger on how regulators should permit ASR projects, including Florida’s query over how to mitigate
risks of arsenic contamination without relying on consent orders — which the state and EPA appear to have worked out
by establishing the process of case-by-case permits with conditions to ensure consistency with SDWA.
During a Jan. 22 Ground Water Protection Council UIC conference held in New Orleans, EPA officials said the
agency is weighing a “policy statement” on how to permit ASR operations for uses such as irrigation and flow augmentation, building on the approach it took in Florida, Inside EPA reported.
It is unclear whether the agency has yet issued such a statement, but a groundwater source says that EPA had been
clear that while the arsenic concerns appeared to be relatively unique to Florida, similar issues that arose in other states
could be addressed using the same approach, which allowed projects to proceed under certain restrictions.
For example, EPA in a 2013 letter to Florida Department of Environmental Protection officials said that ASR
permitting conditions must prevent “any pathway for human consumption of waters that exceed the maximum contaminant level” for arsenic without relying solely on drinking water treatment to mitigate any adverse impacts.
In the NGWA report, researchers make some reference to the Florida issues, though those concerns had not yet been
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resolved at the time the report was being crafted, the source says.
The report says that from a federal policy perspective, current challenges to constructing and operating ASR facilities
in some areas arise from the potential endangerment of underground sources of drinking water by the operation of ASR,
and that a strict interpretation of the federal regulations could discourage ASR projects even though the risks may be
minimal. — Bridget DiCosmo
Industry Expects EPA To Ease ESPS Interim Goals . . . begins on page one
are suggesting that the agency recognizes the difficulty states and utlities have developing new programs that may be
needed by the 2020 deadline and are asking for input on how long and what incentives they may need.
Sarah Dunham, director of EPA’s Office of Atmospheric Programs, told the Maryland Clean Energy Summit in
College Park, MD, Oct. 14 that the agency is “hearing quite a bit about” the interim target, including that 2020 is “not
very far away, especially” to put in place renewable and efficiency programs.
“We recognize that people aren’t all going to hit the ground running and tomorrow have their energy efficiency
resource standards up and running and renewable portfolio standards if they don’t already have them,” she said, adding
that the agency “hopefully allowed for some flexibility in the timing over the course of a 10-year period.”
But she added that EPA still wants “perspective from folks that are working on these programs. How long does it
take? What do we need to do to provide incentives for these programs?”
Other officials have gone even further. Joe Goffman, EPA’s associate assistant administrator for climate, said last
month that the agency will have to revisit the issue “to the point of providing additional analysis that concludes we got it
more or less right, or if we can’t come to that conclusion, look at ways of changing that feature.”
EPA’s proposed existing source performance standards (ESPS) generally set interim emissions targets that states must
achieve by 2020 to demonstrate compliance, measures that EPA officials and others have said are intended to ease states’
abilities to achieve final targets in 2030.
The interim 2020 standards can also be met as an average declining emissions rate between 2020 and 2029, and are
designed as a way to keep states on track but also allow them to step up emission cuts in the later years if they miss the
mark in the early years.
“The interim goal was specifically set forth in the proposal to provide a glide-path for states to get to that ultimate
[2030] goal and we’re not hearing that people object to that in principle,” EPA’s acting air chief Janet McCabe told Inside
EPA/climate last month at the annual Environmental Council of the States (ECOS) meeting.
But McCabe told ECOS that while officials are willing to reconsider the 2020 targets, they continue to believe that
15 years lead time to achieve the 2030 goal “was pretty flexible.”
However, opponents are describing the targets as “front loaded” and impossible for many states to meet, particularly
where ESPS compliance strategies, or building blocks, for renewable energy and efficiency standards do not yet exist.
While McCabe suggested to ECOS continued support for a 2030 goal, the agency is also taking comment on
alternate goals it developed for each state with a final compliance deadline of 2025 and weaker state emission reduction
targets, “to reflect an expectation that less stringent goals could be achieved in less time.” EPA estimates that the alternate
goals would reduce the sector’s GHGs by 23 percent from 2005 levels by 2025 rather than 30 percent by 2030.
The alternate goals include several less-aggressive applications of the proposal’s building blocks: a 4 percent heatrate improvement at coal plants instead of 6 percent; a 65 percent capacity factor for existing gas plants instead of 70
percent; and a 1 percent annual improvement in end-use energy efficiency instead of 1.5 percent. There is no change in
the renewable power portion of state targets.
EPA says it used less-aggressive assumptions for the alternate goals because time is one function of setting the “best
system of emission reduction” as required by the Clean Air Act, but the agency also requests comment on whether the
alternate goals “may reflect an overly conservative approach” and should be strengthened.
Should EPA adopt the 2025 target, it would align with calls from the State Department, which favors a 2025 goal for
countries’ GHG mitigation commitments as part of the international climate talks slated to conclude at a United Nations
conference in Paris in 2015.
Todd Stern, the State Department’s special envoy for climate change, reiterated during an Oct. 14 speech at Yale
University that the department favors the 2025 target, arguing this will allow for the creation of an international system
which could require steeper cuts after 2025. “We think the first end date for [countries’ commitments] should be 2025
because we think it will lead to greater ambition down the road,” Stern said. “In particular, because we see both political
will and technology development increasing over time, we think the target we could put forward in 2030 five years from
now will be measurably higher than a 2030 target we could put forward now. So we don’t want to see low ambition
locked in for 2030.”
But Stern acknowledged that some countries are pushing for a 2030 deadline, and that the initial end date is an “open
issue.” Regardless, he said the goal of the UN agreement is to include “progressive updating of our targets every five
years” to create a “lasting framework that won’t have to be renegotiated over and over.”
While environmentalists oppose elimination of the 2020 interim target, David Doniger of the Natural Resources
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Defense Council suggested recently that EPA should either tighten the final 2030 standard or add a second interim
deadline in 2025, a move which would align EPA’s interim targets with the administration’s international negotiating
stance. He said the push to drop the interim goals “are all trial balloons for more time” and would send a bad message
ahead of the 2015 international climate negotiations that the United States is not serious about reducing emissions.
Regardless of the outcome of international talks, many domestic constituents are pushing EPA hard to ease or
eliminate the 2020 interim targets, with many states leading the charge. For example, Michigan’s Vince Hellwig and
Kentucky’s John Lyons told a Resources For the Future/Electric Power Research Institute event in Washington, D.C., Oct.
14 that the interim goal is more like a “regulatory cliff.”
Helwig said, “We’d prefer to see a glide path to that 2030 rate. It would give us more time and would let us as a state
lay out what we think that timeline should be and thereby we can plan for this. Old coal plants may be shut down by 2030
but not necessarily by 2020.”
Lyons added that the interim goal “doesn’t benefit anybody . . . Utilities want time to prepare. . . . We have challenges here.”
Arizona Department of Environmental Quality Director Henry Darwin made a similar case at a House hearing last
month, saying the state would rather have the ability to “describe how we’re going to meet the final 2030 goal, with
deadlines and with periodic review by EPA.”
But other groups are suggesting alternative approaches. The United Mineworkers of America plans to ask EPA to
replace the interim deadline with a less formal “midcourse review,” an approach the agency uses in its regional haze plans
that requires a demonstration of reasonable further progress rather than a mathematical averaging process tied to an
interim target.
And the Coalition for Innovative Climate Solutions (CISC), a group of “forward-thinking” power companies,
submitted Oct. 9 comments to the ESPS docket that asks the agency to eliminate the “enforceable, interim emission rate
goals that would begin in 2020” and instead allow states the discretion to develop individualized plans that establish
state-specific criteria and state-specific compliance paths to achieve the 2030 emissions goals. The comments are
available on InsideEPA.com. See page 2 for details.
CISC warns that there is no way to achieve the interim goals in many states “without near-term retirement of all
existing coal-fired generation.” CISC members include Ameren Corp., Entergy, Great River Energy, Portland General
Electric Company, PPL Corp., Public Service Company of New Mexico, Westar and others.
A Great River Energy spokeswoman tells InsideEPA/climate, “We know that EPA is listening to the concerns of CICS
and others about the interim goals.” The spokeswoman also points to an on-the-record conversation EPA Administrator
Gina McCarthy had with Resources For the Future where she “acknowledged that adjustments may be made to the
framework. We believe that EPA will take into account the CICS and other reasonable comments when it considers its
final rule.”
But environmentalists will push hard for EPA to retain the interim targets. One source says environmentalists
“strongly feel that the integrity of the whole program rests on the reductions of emissions over time, and the interim
targets are very important to that. . . . We strongly support ensuring that we are securing emission reductions as soon as it
is practical and feasible to do.” — Dawn Reeves with John Siciliano and Lee Logan
Dual Regulation Makes Modified Source GHG Rule Unlawful, Industry Warns
Industry groups and other opponents of EPA’s proposed rule governing greenhouse gases (GHGs) at modified power
plants — which the agency has intended as a legal backstop in the event its new source rule is vacated — say it is
unlawful because the agency is proposing that such facilities would be regulated as both new and existing sources.
The Clean Air Act “doesn’t appear to contemplate that a modified source can remain an existing one. They are
mutually exclusive [and] can’t be both at the same time,” says one industry source.
Industry and other critics are preparing to submit comments to EPA by the proposed rule’s Oct. 16 comment deadline
that will detail their assessment of the rule’s legality.
EPA issued the proposed rule for modified sources under section 111(b) of the air act, the same section of the law
under which the agency issued its controversial new source performance standard (NSPS). The agency issued the separate
plan for modified facilities in part because the NSPS requires new coal-fired power plants to install carbon capture and
sequestration (CCS) technology, a step the agency is avoiding for existing plants.
As a result, the modified source rule is generally viewed as imposing only modest requirements on facilities. For
example it requires a 2 percent emissions improvement based on a 10-year performance level — and that few sources
would ever even trigger the rule.
A 111(b) rule is considered a prerequisite for the subsequent rule EPA proposed for existing plants under section
111(d) because the air law requires the agency to first create the source category under 111(b) before it can regulate the
category under 111(d). Because of this requirement, the modified source rule could provide an important legal backstop
in the event the NSPS is vacated in response to wide-ranging charges from industry groups, lawmakers and others that
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EPA lacks authority to require installation of CCS.
EPA says in both the modified source proposal and the existing source performance standards (ESPS) that existing
plants that undergo modifications would still be regulated under the 111(d) requirements if the modification occurs after a
state has begun its ESPS compliance program. EPA contends it has discretion to make this determination because the
statute is silent.
“All existing sources that become modified or reconstructed sources and which are subject to a . . . section 111(d)
plan at the time of the modification or reconstruction, will remain in the [Clean Air Act (CAA)] section 111(d) plan and
remain subject to any applicable regulatory requirements in the plan, in addition to being subject to regulatory requirements under CAA section 111(b),” EPA’s June 18 proposed rule for modified sources says.
Environmentalists agree with the agency that there is no outright prohibition on the agency’s regulatory approach and
that EPA has discretion. In this case, it is crucial to have an existing source that undergoes a modification to remain an
existing source as well as a “modified source” because the way EPA set up the regulatory program means that existing
facilities’ emissions will count toward a state ESPS compliance plan.
But industry sources say that the statutory prohibition on simultaneously regulating the same facility under
both 111(b) and 111(d) is a legal hurdle EPA is unlikely to overcome when the suite of rules face legal challenge.
The Clean Air Act clearly distinguishes between new sources, and existing sources, a second industry source says.
“EPA says there is ambiguity in the statute about whether you can continue to regulate a modified source under 111(d). I
don’t see any ambiguity. That is because 111(a) defines a new source as a facility that constructs or modifies after a
111(b) standard has been proposed, and says everything else is an existing source.”
The source says the agency’s interest in keeping modified facilities under ESPS requirements is also to ensure that it
does not create a “perverse incentive” for existing plants to modify solely to escape regulation under the ESPS, which the
source adds is more stringent than both the NSPS or modified proposal in a majority of states.
That is because the NSPS seeks a coal standard of 1,100 pounds of carbon dioxide per megawatt hour (lbs/MWh)
and proposes a gas standard of 1,000 lbs/MWh. Thirty states have final 2030 ESPS goals that are less than 1,100 lbs/
MWh and 26 of those states’ goals are under 1,100 lbs, according to EPA’s data summary.
“The reason EPA has had to go out of its way to create this odd little rule where requiring sources to remain subject
to 111(d) even when they modify is because they’ve created an existing source rule that’s actually more stringent than
either the modified rule or in many instances the NSPS, the source says.”
It creates perverse incentives for sources to modify just to escape regulation under 111(d) so EPA has to pull them
back in by trying to treat modified sources as if they are existing, too.”
The source compares the 2 percent improvement requirement in the modified proposal to just the first building
block of EPA’s ESPS, which is a 6 percent heat-rate improvement at a coal plant. Add to that requirements to redispatch to existing natural gas, and increase use of renewables and demand-side efficiency “and you have a very
aggressive rule. If you look at the targets that EPA sets for the states [you can see most] have an even lower target
than you could get using CCS or [natural gas combined-cycle] so in many instances it is more stringent than the new
source standard.”
The modification incentive is something EPA seeks to address in the proposed ESPS, where it reaffirms that a
modified facility will remain subject to 111(d) “even after it undertakes a modification or reconstruction.”
EPA adds that its interpretation is that section 111(d) “is silent on whether requirements imposed under a CAA
section 111(d) plan continue for a source that ceases to be an existing source because it modifies or reconstructs.”
Specifically, EPA notes that the section “does not say whether, once the EPA has approved a state plan that establishes a
standard of performance for a given source, that standard is lifted if the source ceases to be an existing source. Similarly,
no other provisions of CAA section 111 address whether the imposition of a CAA section 111(b) standard on a modified
or reconstructed source ends the source’s obligation to meet any applicable CAA section 111(d) requirements.”
EPA says because the issue is not addressed in the statute, “EPA has authority to provide a reasonable interpretation”
under Supreme Court precedent. “The EPA’s interpretation is that under these circumstances, the source remains subject
to the CAA 111(d) plan.”
The agency says this is necessary, first to “assure the integrity” of the plans under which EPA expects states to
authorize rate- or mass-based trading programs for all electric utilities in the state. “Uncertainty about whether units
would remain in the program could be very disruptive to the operation of the program.”
And the second reason, according to EPA, is “to avoid creating incentives for sources to seek to avoid their obligations under a CAA section 111(d) plan by undertaking modifications. The EPA is concerned that owners or operators of
units might have incentives to modify purely because of potential discrepancies in the stringency of the two programs,
which would undermine the emission reduction goals of CAA section 111(d).”
EPA asks for comment on its interpretation and notes that this portion of the rule, like all the others, is “severable from the rest of this rulemaking, so that if the EPA revises this interpretation in the final rule or if the EPA adopts this
interpretation in the final rule but it is invalidated by a Court, there would be no effect on the rest of this rulemaking.”
The second industry source questions EPA’s claim of discretion and says the fact that the agency admits there could
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be an incentive for a source to move from the ESPS to the modified requirements shows that EPA “created an upside
down set of rules where existing is the most stringent but logically should be the least.”
A third industry source agrees that there is a “core legal argument” that the 111(b) and 111(d) standards are “mutually
exclusive.” EPA’s “different point of view” is because the entire section 111 rulemaking is “novel,” the source says, and
notes that EPA is “setting their calculations based on the universe of what existing sources look like today. If all of a
sudden you remove one of them you would upset the accounting between now and 2030.”
However, the first source is skeptical that there would be any incentive to modify, noting “there are a lot of considerations that go into a modification decision,” such as triggering new source review permitting requirements and other
costs. “I don’t know how realistic it is” that sources would modify just to escape regulation under the ESPS.
Environmentalists, meanwhile, intend to defend the proposal when they submit their comments. “The structure of
section 111 suggests that modifying sources should be subject to pollution control requirements above and beyond those
that apply to existing sources, and EPA’s proposal provides that they will be,” one source says.
A second environmentalist says that EPA has direction on whether to subject sources to both 111(b) and 111(d) and
“in this case it entirely makes sense, given the approach that EPA is taking, to continue to have those sources as part of”
the ESPS. — Dawn Reeves
States Raise Concerns Over Selenium Criteria . . . begins on page one
tissue elements when both data are available, is getting mixed reviews from states, with some saying the agency must
clarify a number of issues key to states’ implementing the criteria in their own water quality standards.
These issues include how states should select fish species for tissue measurement, how to apply the intermittent water
column exposure criteria if little daily sampling data is available, how to manage compliance and monitoring data for the
agency’s egg-ovary limits given the complexity of such tests and already constrained budget resources, and how to
include the fish-tissue values in discharge permits and impairment decisions.
But two states, West Virginia and Ohio, are collecting data that both states say could help inform the agency’s draft
criteria. And in the case of the West Virginia Department of Environmental Protection (DEP) study, the state’s findings
could aid in implementation of the agency’s draft national criteria by providing a “very accurate translator” for water
column values, one state source says. The study involves measuring fish tissue, including stomach content, to determine
the extent of selenium uptake; larval fish deformity evaluations to assess possible population threats; and chemical
analysis of selenium discharges.
DEP’s study is aimed at informing its own water quality limits for selenium, which it is required to submit for
legislative review by fall of 2015, though a state source says preliminary data may be ready for EPA review as early as the
start of 2015. “We’re aware of the value of the data we’re collecting” for informing the EPA national criteria, the source
says.
And Ohio is collecting data it says could indicate that the draft agency values are too weak. While the state does not
have a widespread selenium problem, according to June 12 comments from Ohio EPA, the state has collected data on
selenium water, sediment, and fish concentrations in the Ottawa River since 1986. Relevant documents are available on
InsideEPA.com. See page 2 for details.
“Based upon a review of our data, we feel that U.S. EPA’s proposed selenium criterion is very close to the toxic
threshold for selected target tissues and sensitive species,” Ohio EPA says, saying there appears to be little or no margin
of safety to guard against adverse effects, and adding that the state will make its data available to EPA to inform the
federal criteria.
Under the Clean Water Act (CWA), EPA adopts risk-based water quality criteria that set a safe concentration
level for contaminants in water to protect human health and aquatic life. States then craft their own enforceable water
quality standards and other regulatory limits based on the criteria, though regulators can, with EPA approval, modify the
criteria or adopt other measures using scientifically defensible methods.
EPA’s current selenium criteria, adopted in 1987, sets traditional water column concentration values of 5 micrograms
per liter (ug/L) for chronic exposures and 20 ug/L for acute exposures. While environmentalists charge the values are too
weak, industry groups have struggled to attain its limits in discharge permits based on the criteria. This had led to scores
of citizen suits over discharges from coal mining, coal ash ponds and other sources of the substance.
In the absence of revised national criteria, many states have pursued their own state-specific or site-specific values
for selenium based on fish tissue concentrations. For example, Kentucky recently set a chronic standard of 8 micrograms
per gram dry weight (ug/g/dw) for whole body fish tissue, or 19.3 ug/g/dw for egg or ovary tissue, but environmentalists
have sued over the approach, saying that fish tissue values are difficult to implement in permits and other regulatory
requirements.
In 2004, the Bush EPA agency proposed a similar approach, but it was eventually shelved due to criticisms from
environmentalists and the Fish & Wildlife Service (FWS).
EPA’s new draft criteria includes a 15.2 milligram per kilogram (mg/kg) concentration limit for fish eggs or ovaries
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— which would override any other standard in EPA’s draft and two other tissue-based limits, 8.1 mg/kg “whole body” of
a fish and 11.8 mg/kg for the muscle tissue, which would override the draft water column values of 1.3 micrograms per
liter (ug/L) over a 30-day average for standing waters and a 4.8 ug/L limit for flowing waters.
The approach aims to address environmentalist and FWS concerns about fish tissue-based approaches being difficult
to enforce by also supplying water column limits, but FWS has again raised concerns about the proposal, saying in
comments filed in July that EPA’s plan may not adequately protect listed fish and non-fish species.
And now some states are saying the approach is complex and may be difficult to implement.
For example, Idaho Department of Environmental Quality (DEQ) says in comments dated July 29 but not filed to the
docket until Sept. 30 that while EPA’s approach clearly represents the state of the science, the agency’s “attention to
implementation of this new criterion is lacking.” In noting the difficulties with conducting compliance monitoring and
assessment for an egg-ovary value, DEQ says that EPA’s “hierarchy” of alternate tissue-based limits “in the end is very
complex.”
“Although the hierarchy allows traditional water testing, this hierarchy is likely to create pressure for acquiring ‘acid
test’ egg-ovary data that is the most difficult and expensive to obtain,” the comments say. And given that some fish
species tend to be very mobile, the approach “leaves the door open to raise a number of biological and life history
questions that call into question association of fish selenium concentrations to site water quality that are not simply
answered or addressed in routine monitoring programs,” the comments say. “This complexity is likely to further strain
already reduced state monitoring budgets.”
DEQ in 2006 began considering an industry-crafted site-specific selenium criterion for certain waters in
southeast Idaho but says the effort remains stalled pending EPA review of related brown trout toxicity data. The state
notes that EPA’s water column exposure criterion may not be very useful, given that it is “highly unlikely that Idaho will
have sufficient daily selenium data to make use of it.”
The comments also point to a lack of an EPA-approved methodology for analyzing selenium in fish tissue, saying the
gap places an additional burden on states and industry.
“In general, EPA needs to do a better job describing how a fish tissue criterion is to be implemented in [National
Pollutant Discharge Elimination System] NPDES permits and [total maximum daily loads],” the comments say.
Similarly, West Virginia DEP in its June 16 comments asks EPA to include more information on implementation of
the final criteria, adding that guidance on including the criteria in NPDES permits and how to properly use it in CWA
section 303(d) impairment assessment will result in a “more streamlined approach when incorporating into state programs.”
And in June 13 comments on the draft criteria, the Michigan Department of Environmental Quality says EPA must
include more clarification on how regulators should select fish species for tissue-based criteria attainment measurement,
saying EPA’s draft recommendation that states target nonanadromous species — those that do not migrate from saltwater
to freshwater, or otherwise rely on ecological significance, are incomplete.
“There is no assurance that any resident species would be likely to have both “the highest exposure and sensitivity to
selenium,” Michigan says, adding that in the northern part of the state, brook trout are the dominant species but are
substantially less sensitive to selenium than brown trout and other native species. “Selecting a linchpin species might
result in protection of that species, but other species with higher bioaccumulation potential and/or sensitivity could still be
adversely affected,” the comments say.
Environmentalists Appeal Pesticide ‘Mega’ Suit While Pursuing Settlement
Environmentalists are appealing a federal district court ruling that rejected their years-long pesticide “mega” suit
trying to force EPA to review the effects of scores of registered pesticides on more than 100 endangered species, though
advocates say they continue to pursue a potential settlement with the agency to resolve the litigation.
The Center for Biological Diversity (CBD) and other groups filed an Oct. 10 notice of appeal with the U.S. Court of
Appeals for the 9th Circuit of the lower court’s decision. A CBD source says the appeal will largely focus on advocates’
claims that the district court judge in his ruling in CBD, et al. v. EPA, et al. was wrong to decide that the lower court
either lacked jurisdiction to hear the challenge, or that the bulk of the claims were time-barred or otherwise prohibited
under law. Relevant documents are available on InsideEPA.com. See page 2 for details.
In an Aug. 13 ruling, U.S. District Court for the Northern District of California Magistrate Judge Joseph Spero
found that advocates’ failure to consult claims were time-barred challenges to re-registration decisions on active ingredients, and that the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) requires challenges to EPA pesticide
registration decisions be filed in an appeals court within 60 days of a decision.
The decision blocks environmentalists’ push to require EPA to retroactively consult with federal wildlife
officials under the Endangered Species Act (ESA) on the risks dozens of registered pesticides may pose to listed
species or their habitats, and limits future challenges by requiring advocates to file challenges within 60 days of a
re-registration decision on an active ingredient, essentially requiring them to challenge each future decision on a
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case-by-case basis (Inside EPA, Aug. 15).
CBD’s appeal hopes to avoid any such precedent by having the 9th Circuit weigh in on whether Spero was correct to
find he could not hear the majority of the challenges, and potentially force him to review those claims.
Prior to filing their notice of appeal, advocates filed a motion in the district court — which Spero granted — seeking
entry of final judgment on environmentalists’ failure to consult claims so that advocates could move ahead with an
appeal.
The CBD source says the handful of claims surviving in the district court are on hold pending resolution of the 9th
Circuit appeal of the dismissed failure to consult claims.
In the Sept. 19 motion for final judgment, advocates outline three issues that could be raised on appeal, including
whether ESA’s citizen suit provision gives district courts jurisdiction over failure to consult claims, and whether EPA’s
continued control over registered pesticides constitutes an ongoing agency action that triggers the ESA’s duty to consult
with federal wildlife officials on pesticides’ risks to species.
Another question is whether “Plaintiffs challenges to the product reregistrations are actions ‘not following a hearing’
that are subject to jurisdiction in the district court under FIFRA,” according to the district court motion.
Still, the CBD source says environmentalists negotiated with EPA for nearly two years prior to Spero’s ruling,
and that advocates remain interested in settling the case to resolve the litigation. The appeals court has set an Oct. 17
deadline for filing papers for possible mediation, and petitioners’ opening brief is due Jan. 20.
A settlement could help resolve the years-long fight over species pesticide reviews. Section 7 of ESA generally
requires federal agencies to consult with the U.S. Fish and Wildlife Service and/or the National Marine Fisheries Services, collectively known as the services, to determine whether an agency action could cause jeopardy to an endangered
or threatened species and then take steps to mitigate or prevent those impacts. But the agencies’ staff have struggled to
meet the requirement in part because of competing statutory requirements of FIFRA and ESA.
In November 2013, federal officials announced new “interim approaches” for assessing pesticide risks to endangered
species that draw on advice from the National Academy of Sciences, which calls for integrating requirements of both ESA
and FIFRA. EPA and the services have said that given limited resources and a still-evolving process, they will implement
the new approaches during registration review of existing pesticides.
Environmentalists have been pushing in multiple lawsuits to force federal officials to consult on the potential risks of
pesticides to endangered species as required by the ESA. Since the announcement of the interim approaches, advocates
have settled other cases but hit procedural hurdles in the mega suit.
This summer, advocates settled a different suit Northwest Coalition for Alternatives to Pesticides (NCAP) et al.,
vs. EPA and CropLife America et al. with an agreement that sets deadlines for the first nationwide consultations
EPA and the services will perform under a new interim risk assessment framework that federal officials unveiled late
last year.
But in the mega suit, Spero has repeatedly called on advocates to better specify their arguments, and in his Aug. 13
ruling dismissed many of their claims, including claims alleging EPA failed to consult on pesticides risks. But he said a
handful of claims could proceed if advocates provide further justification. — Dave Reynolds
Corps Unveils Guide To Clarify Water ‘Mark’ . . . begins on page one
WAC in a Sept. 29 letter to EPA and the Corps cite the guidance documents as one of several policy position updates
issued since the CWA proposal’s issuance that warrant withdrawing the rule entirely.
However, one industry source counters that the guidance documents appear to be “entirely consistent” with existing
Corps regulatory definitions and could bring greater clarity to OHWM delineations because they provide additional detail
on how regulators can identify the primary indicators used in field practices.
OHWM is defined in existing Corps regulations as “that line on the shore established by the fluctuations of water and
indicated by physical characteristics such as clear, natural line impressed on the bank, shelving, changes in the character
of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the
characteristics of the surrounding areas.”
Under section 404 of the CWA, the OHWM is a legal metric used to define the lateral extent of federal reach in nontidal jurisdictional waters in the absence of adjacent wetlands, according to the guidance.
While OHWM does not by itself determine whether a water is or is not jurisdictional, it is generally used as a field
indicator for identifying streams and for delineating the lateral boundaries of waters that have been found to be jurisdictional. OHWM has historically been determined by best professional judgment, in which regulators look for certain
indicators, such as evidence of “flow,” and a distinguishable “bed and bank.”
But given the geological and hydrological differences across U.S. regions, there is significant variability in what
indicators may be effective for making OHWM findings, making it necessary for the Corps to work towards unifying
methodology across certain regions, sources have previously said.
The Corps is now aiming to offer some clarification on the use of the OHWM in jurisdictional findings with its two
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guidance documents, “A Review of Land and Stream Classifications in Support of Developing a National Ordinary High
Water Mark Classification,” and “Occurrence and Distribution of Ordinary High Water Mark Indicators in Non-Perennial
Streams in the Western Mountains, Valleys, and Coast Region of the United States.”
In the first document, the Corps reviews existing land and stream classifications and weighs several possible approaches to developing a national OHWM methodology, such as focusing on stream characteristics, which would include
flow duration and function, or geographic features such as topography and geology.
But the guidance finds that “A third and most likely option for a national OHWM classification is to include elements
of both geography and stream characteristics, thus allowing for sampling of a range of stream types or categories within
distinct geographic regions.”
The approach, which identifies nine potential stream types within each of the 10 geographic regions, is subject to
potential revision but highlights general methodology to be used in future OHWM decisions, the guidance says.
The second document examines the presence and location of OHWM indicators for 150 Western non-perennial
streams sampled, finding that three primary indicators: topographic break in slope, change in sediment characteristics and
change in vegetative characteristics, were “ubiquitous throughout” the Western region.
“This suggests the robust nature of these primary indicators and the active channel signature for delineating the
OHWM in non-perennial streams throughout the WMVC Region,” the guidance says, adding that the findings support a
more uniform approach to OHWM delineation in the region.
The guidance says regulators often struggle with assessing non-perennial mountain streams to determine what
constitutes “ordinary high water” and how to interpret the physical and biological indicators, and that despite the legal
importance of the OHWM metric, “limited research has been performed or guidance produced concerning” how to
identify it in rivers and streams.
EPA and the Corps’ proposed rule for determining how the CWA applies to smaller waters and isolated
wetlands could further boost the significance of the OHWM in some jurisdictional determinations, given that the proposal
would for the first time define “tributary” as a “water physically characterized by the presence of a bed and banks and
ordinary high water mark” and which contributes flow to jurisdictional waters.
The proposal would also make all tributaries jurisdictional by default, raising the definitional issue to particular
importance.
The agencies recently extended the Oct. 20 comment deadline for the proposal, which aims to end confusion about
the reach of the water law stemming from the 2006 Supreme Court ruling, Rapanos v. United States, to Nov. 14.
In Rapanos, Justice Anthony Kennedy ruled in a concurring opinion that waters that share a “significant nexus” to
navigable waters can be regulated under the water law. By contrast, the plurality opinion, written by Justice Antonin
Scalia, held that only “relatively permanent” water bodies that connect to traditional navigable waters and wetlands that
have a “continuous surface connection” to such relatively permanent water bodies, are jurisdictional.
But the proposed rule, which says waters sharing a connection that “significantly affects the chemical, physical, or
biological integrity” of a jurisdictional waterbody may also be protected under the CWA, has faced an onslaught of
criticism that it would unlawfully expand the water law.
In their recent letter to EPA Administrator Gina McCarthy and Secretary of the Army John McHugh, the WAC
coalition cites the OHWM guidance documents among a host of new agency statements the coalition says are making it
harder to comment on the rule and are in violation of the Administrative Procedure Act (APA).
WAC, which includes the American Petroleum Institute, National Cattlemen’s Beef Association, National Mining
Association, American Farm Bureau Federation and others, asks the agencies to withdraw the proposed rule. The coalition charges that the OHWM guidance documents “essentially ignore the regulatory definition” of OHWM and create a
new method for determining OHWM based on the delineation of an ‘active channel signature.’
The letter argues that the documents render other physical indicators explicitly referenced in Corps regulatory
language, including destruction of terrestrial vegetation, shelving, and soil changes, “superfluous” and that “This is a
clear change in regulatory practice and will have a substantial effect on how CWA jurisdiction is interpreted.”
The guidance documents define the “active channel” as a “unit of a stream system within which the local hydrologic
regime and geomorphic processes are effective in maintaining a linear topographic depression or conduit on the land
surface, typically characterized by the presence of a bed and banks.” The document also says that “The boundary of the
active channel is also the stream feature that most closely meets the above criteria for the OHWM.”
But the industry source says that the guidance documents simply aim to clarify the regulatory language, and do not
represent a divergent position, adding that the active channel signature is “exactly what the Corps has used to determine
OHWM” in field practice for years.
Further, the guidance documents provide additional clarification to the definitions of indicators of OHWM,
such as vegetative changes, that could help regulators in making jurisdictional determinations under the proposed
rule’s new “tributary” definition, particularly in the arid West where OHWM demarcations are often limited, the
source says. — Bridget DiCosmo
14
INSIDE EPA - www.InsideEPA.com - October 17, 2014
Groups Fault EPA Support Of State Pollinator Plans, Seeking Federal Action
Environmentalists and beekeepers are criticizing a new EPA plan to bolster state pollinator protection
programs, arguing the approach shows federal officials shifting responsibility for pesticide risks to bees to
state regulators, and allowing for a patchwork of standards that may rely on unrealistic mitigation measures to
protect pollinators.
EPA announced the approach with an Aug. 12 letter to the State FIFRA Issues Research and Evaluation Group
(SFIREG), saying the pollinator protection plans recently crafted by several states are consistent with EPA efforts to
reduce risks from acute exposures to pesticides, and with President Obama’s June 20 memo on pollinator protection.
Relevant documents are available on InsideEPA.com. See page 2 for details.
The plan comes as EPA and the U.S. Department of Agriculture (USDA) are leading the federal Pollinator Health
Task Force in crafting a national strategy to protect pollinators as part of the president’s memo on stemming pollinator
declines by improving their habitat, assessing how pesticides and other stressors contribute to their declines and acting
where appropriate. The task force is slated to craft a national strategy to better understand, prevent and recover pollinator
losses before the end of the year.
Several beekeeping sources and an environmentalist say EPA’s plan to partner with states on developing state
pollinator management plans shows the agency passing off to state regulators its Federal, Insecticide Fungicide and
Rodenticide Act (FIFRA) responsibility to prevent pesticides from posing unreasonable environmental effects. According
to EPA’s website, FIFRA provides EPA with the authority to oversee the sale and use of pesticides, but does not fully
preempt state, tribal or local law, so those governing bodies may also regulate pesticide use.
Still, beekeepers and environmentalists say EPA’s backing of state plans after announcing last year it was pursuing
federal labeling restrictions suggest federal officials are failing to take definitive action. The new approach, they say,
changes course and delays meaningful federal action. “No one is taking responsibility for this,” one beekeeping source
says.
A source with the Center for Food Safety says advocates need additional details to more fully evaluate EPA’s
plan, but that the approach appears to conflict with the agency’s recent promises to strengthen pesticide labels
nation-wide to protect bees. “What’s needed is for EPA to do something at the federal level so it’s uniform and
consistent,” the source says, adding a state-by-state approach “is not going to present any meaningful route forward.”
EPA and other agencies have been working to stem massive declines in bee populations seen since 2006 and have
named pesticides, namely neonicotinoids, as one of several factors. Other causes include pathogens, such as the varroa
mite, lack of genetic diversity and poor nutrition resulting from shrinking pollinator habitat. — Dave Reynolds
Wastewater Sector Seeks Answers On Ebola Risk . . . begins on page one
A statement from the Water Research Federation Oct. 13 quotes media reports suggesting that “researchers believe
that Ebola survives in water for only a matter of minutes” and that the virus is fragile when separated from the host, so
“bodily fluids flushed by an infected person would not contaminate the water supply.”
But a water industry source says it is unclear how long the virus can live outside the host, and that the industry wants
specific information about how long the virus can live “in a wastewater environment” — including assurances specifically
for wastewater treatment workers that treatment processes disinfect the virus in wastewater systems, as well as information about the proper protection equipment a sanitation worker would need when handling wastewater possibly exposed
to the virus.
The CDC says in its current guidance that “sanitary sewers may be used for the safe disposal of patient waste” and
that “sewage handling processes in the U.S. are designed to inactivate infectious agents.”
And an EPA spokesperson, in a statement to Inside EPA, echoed the CDC’s language, adding that “treatment plant
operators should be encouraged to follow normal practices to avoid exposure to infectious agents.” But the agency must
take cues on any further Ebola guidance from the CDC and Department of Health and Human Services (HHS), though the
agency “will provide technical assistance to HHS and CDC, as needed,” the spokesperson added.
But the industry source says several water industry groups have been pushing CDC for a “specific product” to guide
sanitation workers, especially whether protective equipment is needed.
The Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) has been
coordinating with the CDC and the waste and recycling industry to issue guidance and permitting for proper hazardous
waste handling — an arrangement the water industry source says would be “ideal” for EPA and CDC.
In an Oct. 13 press release, the National Waste & Recycling Association said that PHMSA issued a special
permit Oct. 3 “for the safe handling and transport of Ebola-contaminated waste generated in Dallas, Texas,” and has
prepared guidance for waste haulers on the “packaging, handling and transportation requirements of Ebola waste”
generally.
The water industry source says the lack of specific guidance for wastewater treatment workers “generates anxiety,
INSIDE EPA - www.InsideEPA.com - October 17, 2014
15
because they haven’t said anything, so that leads to a lot of speculation.”
“The stuff our guys wear is different [from health care workers], but it’s the same concept,” the source says. Wastewater treatment plant workers are not wearing full-body headsuits, “but if they need to be, they ought to know that,” the
source says. “None of the information [the CDC has issued] is focused on me as a water utility or employee. The statements are fine if you’re telling the hospital staff, ‘if it’s flushed down the toilet, that’s no problem’,” but it doesn’t address
safety issues at the treatment plant, the source says.
The source says some industry officials have had initial conversations with CDC staff, but those conversations
“raised more questions than answers” including the water industry asking CDC to speculate on “whether the virus can
survive in a sewer system for even a short period of time.”
The CDC, and a host of other federal and state officials, have been scrambling to understand and contain the virus
since a patient who had recently traveled from West Africa to the United States was diagnosed with Ebola in Dallas, TX,
Sept. 28. That patient, Thomas Eric Duncan, died of the virus Oct. 8. A nurse in Dallas was recently infected, marking the
second case in the United States.
And according to an Oct. 13 report in The New York Times, CDC is reconsidering its approach to decontamination
and equipment procedures for all health workers. — Amanda Palleschi
EPA Sends Proposed Ozone NAAQS Update For White House Review
EPA has sent its proposed update to the ozone national ambient air quality standard (NAAQS) for White House prepublication review, weeks after the agency’s staff and science advisors suggested a need to tighten the existing 75 parts
per billion (ppb) standard down to a range between 60 and 70 ppb in order to protect public health.
The White House Office of Management & Budget (OMB) received the proposal Oct. 8, according to its
website. Review is supposed to be limited to 90 days, but OMB can take much longer or much less depending on
the particular rule. But EPA must issue the proposed NAAQS update by Dec. 1 to comply with a court-ordered
deadline.
EPA is required to reassess its NAAQS every five years, although its review of the 2008 ozone standard of 75 ppb is
now overdue, prompting advocates to file a lawsuit that resulted in the December deadline.
In a final policy assessment (PA) released Aug. 29, agency staff called for tightening the standard to between 60
and 70 ppb, in order to comply with a Clean Air Act mandate that NAAQS be requisite to protect public health.
Staff based the conclusion solely on scientific data, as EPA cannot consider costs when setting NAAQS (Inside EPA,
Sept. 5).
In addition to calling for a stricter “primary” health-based standard, EPA staff also said there is a need to establish a
“secondary” standard to protect the environment in a range of levels from 17 to 7 parts per million-hours (ppm-hrs),
expressed in terms of the W126 index — a method for measuring summertime ozone in ppm-hrs.
EPA’s Clean Air Scientific Advisory Committee (CASAC) endorsed a primary limit in the 60-70 ppb range, and for
the secondary limit CASAC suggested a W126 level within the range of 7 ppm-hrs to 13 ppm-hrs.
Environmentalists and public health advocates argue that scientific evidence requires the agency to propose a
standard no less stringent than 60 ppb, above which adverse health effects are likely.
“Smog is linked to asthma attacks, other serious heart and lung diseases, and premature death. It is EPA’s bedrock
responsibility to issue a protective ozone air quality standard that will safeguard public health, including protecting the
children afflicted by smog across our nation,” said Environmental Defense Fund’s Elena Craft.
Republicans and industry counter that there is no scientific basis for tightening the existing 75 ppb limit. They warn
that a standard in the 60-70 ppb range endorsed by EPA staff and CASAC would impose massive costs by putting many
areas of the United States out of attainment with the NAAQS. Nonattainment status could require affected areas to
implement costly pollution controls on industrial sources of ozone-forming pollutants.
EPA, however, faces the legal bar on considering costs when setting NAAQS, although it can consider costs when it
crafts rules for how states should implement the standards.
CASAC separately has declined to take up an industry request to pursue a novel review of the costs of the NAAQS
process, but has said it will if EPA requests such a review.
If EPA proposes and finalizes a stricter ozone standard, litigation by industry is expected — but critics of ever-tighter
ambient air standards have repeatedly failed with such suits.
The U.S. Court of Appeals for the District of Columbia Circuit often defers to EPA’s scientific discretion in rejecting
challenges to the stringency of a NAAQS. And the Supreme Court has declined to hear appeals of such decisions, most
recently issuing an Oct. 6 order rejecting an appeal of a D.C. Circuit decision upholding the 2008 ozone standard (Inside
EPA, Oct. 10).
16
INSIDE EPA - www.InsideEPA.com - October 17, 2014
Water Utilities Eye EPA Integrated Planning Awards To Boost Future Funding
Wastewater industry officials say they are hoping EPA’s announcement that it will provide $335,000 in technical
assistance to aid five municipalities in integrating wastewater and stormwater permitting requirements will spur Congress
to provide additional appropriations to implement an agency policy that municipalities strongly support but have
struggled to implement.
“We would have liked to have seen more [money], but we’re pleased EPA dug deep into their existing resources and
found this money for this important initiative,” a wastewater industry source says. “In this environment, we’ll take
whatever we can get.”
The source says it is significant that EPA went ahead and awarded the money from existing funds appropriated for
technical assistance grants, and municipal wastewater utilities are “hoping this will incentivize Congress to provide” more
money for integrated planning in fiscal year 2015.
EPA announced Oct. 10 that it would provide the funding to five communities — Burlington, VT; Durham, NH;
Santa Maria, CA; Springfield, MO; and Onondaga County, NY — selected from a pool of 28 applicants that responded to
an EPA call in May for letters of interest in technical assistance.
In a statement, EPA said it chose those communities considering several factors, such as human health and
water quality challenges, innovative approaches, community and national impacts, and commitment to integrated
planning.
The agency says the five projects will provide examples of how communities can develop integrated plans to address
components of Clean Water Act (CWA) permits as well as provide useful information and transferable tools for other
communities interested in integrated planning.
EPA issued its integrated planning framework in June 2012 to provide regional offices and states with a guide on how
to help cities prioritize costly wastewater and stormwater infrastructure improvements that are needed to prevent combined sewer overflows (CSOs), sanitary sewer overflows and other pollution releases during heavy precipitation events.
The concept allows communities to sequence completing improvement projects so they can start with highest priority
projects first.
From the start, municipal officials urged Congress to provide funding to implement the framework, noting that while
EPA had raised the expectation during its development of the framework, there would be some funding set aside for its
implementation, at least on a pilot scale, budget constraints prevented the agency from doing so initially (Inside EPA, July
27, 2012).
Leaders of the Senate Environment and Public Works Committee and the House Transportation and Infrastructure
Committee (T&I) have backed funding for integrated planning pilots but have yet to get a provision in a final EPA
spending bill.
A major benefit of integrated planning is that it lets communities sequence their CWA wastewater and stormwater
projects based on priority rather than the historical focus of meeting each CWA requirement separately, EPA says in its
announcement.
The technical assistance grants “will help recipients meet Clean Water Act requirements for water management in a
cost effective and environmentally beneficial way,” EPA says, rather than the traditional approach “that may have
constrained communities from addressing the most serious water issues first.”
Many cities, including Baltimore, MD, Springfield, MO, Cincinnati, OH, Seattle, WA, Lima, OH, and Philadelphia, PA, have implemented or are developing integrated plans.
“Integrated planning provides the important flexibility that cities and towns need to address water challenges in an
efficient and effective manner,” EPA Administrator Gina McCarthy says in an Oct. 10 statement. “EPA is committed to
helping communities meet their requirements and goals for water projects that benefit public health, the environment and
the local economy.”
Wastewater industry groups have long championed integrated planning, urging appropriators, unsuccessfully, to
earmark $5 million in EPA’s fiscal year 2014 appropriations for pilot projects to test the agency’s integrated planning
framework.
For FY15, Reps. Robert Gibbs (R-OH) and Tim Bishop (D-NY), the chairman and ranking member of T&I’s water
resources and environment subcommittee, succeeded in getting House appropriators to include in EPA’s spending bill $2
million for pilot projects covering two to three publicly owned treatment works in each EPA region. But the Senate failed
to advance EPA appropriations for FY15, and the agency’s funding is coming from a continuing resolution based on
FY14 spending.
Gibbs and Bishop have explored ways to improve EPA’s integrated planning policy, but at a July 24 hearing
faced competing calls from municipal and utility officials who are pushing three different bills for how to address
the issue. — Amanda Palleschi
INSIDE EPA - www.InsideEPA.com - October 17, 2014
17
Ethanol Producers Ask D.C. Circuit To Scrap EPA’s Tier 3 ‘Test Fuel’ Policy
Ethanol producers in a suit over EPA’s Tier 3 fuel and vehicle air rule are asking a federal appeals court to scrap a
years-old policy the agency relied on in the rule for establishing new “test fuels” that determine vehicles’ compliance with
EPA regulations, arguing the policy makes it impossible for some alternative fuels to ever qualify.
In their Oct. 8 opening brief filed with the U.S. Court of Appeals for the District of Columbia Circuit, the producers
say that the Tier 3 rule the agency finalized in April makes even stricter the already tight restrictions that applied to new
test fuels used to certify engines. EPA first established the test fuels policy in 2002 and has modified it several times
since, but the ethanol groups say the D.C. Circuit should vacate a key provision of it. The brief is available on
InsideEPA.com. See page 2 for details.
EPA updated the policy in the Tier 3 rule to require that fuels be “readily available nationwide” before they can be
approved as alternative test fuels, yet fuel marketers are not allowed to sell new fuels under a 1977 law unless they are
“substantially similar” to existing test fuels, creating a “catch-22” situation, the ethanol producers say in their brief.
Previously, fuels needed to be “commercially available” to be approved as test fuels.
“EPA requires the impossible — it is economically infeasible, not to mention illegal, to market a fuel before it is
approved as a test fuel,” they say. EPA’s failure to address their earlier written comments warning of this dilemma violates
Administrative Procedure Act standards for reasoned decisionmaking, they say.
Further, “to the extent the agency gave any justification for its decision — it relied on the mistaken premise that other
alternative test fuels have been approved under the rule,” they argue, citing EPA’s response to comments filed on the
earlier proposed version of the Tier 3 regulation. The rule includes a stricter cap on the amount of sulfur allowed in
gasoline, among other requirements designed to cut emissions from fuels and vehicles.
EPA in its response to comments said it has approved alternative fuels such as natural gas under the existing regulatory regime, which allows industry to petition the agency to approve a new alternative test fuel.
But the producers in their brief in Energy Future Coalition, et al. v. EPA, et al. fault the response, saying it “does not
cite any such approval — and for good reason. EPA’s statement is incorrect: the agency has never actually approved
natural gas or any other test fuel” under the existing petition process.
The groups are seeking to market fuels with higher blends of ethanol than the 10 percent ethanol fuel (E10) now used
as the most common test fuel for the general gasoline supply, as these fuels have a higher octane rating and are necessary
to allow higher-performance engines that have better fuel economy (Inside EPA, July 4).
Such engines are required to meet corporate average fuel economy and vehicle greenhouse gas (GHG) standards set
jointly by EPA and the National Highway Traffic Safety Administration, the groups say.
EPA also uses an 85 percent ethanol blend (E85) as a test fuel for vehicles with “flex fuel” engines that can run on
either conventional gasoline or alternative fuels, but these vehicles are rare and ethanol makers would like to create a
market for ethanol blends in between E10 and E85, such as E30, for mass consumption.
The ethanol producers also say that EPA’s response to comments appears to confuse the alternative test fuels rule
with a separate rule setting specifications for “standard” gasoline.
The agency “conflates the alternative test fuel issue with the distinct matter of EPA’s specifications for standard
gasoline test fuel, construing comments about the former as though they pertained to the latter,” they say, and as a result
this confusion renders EPA’s response inappropriate, they argue.
The suit effectively uses the Tier 3 lawsuit — filed within the Clean Air Act-mandated 60-day window for suing
over final agency actions — as a vehicle for challenging the original 2002 test fuels policy.
Courts typically bar lawsuits that aim to undo rules if the challenges exceed the 60-day deadline, although they can
make exceptions if the more recent EPA action effectively “re-opens” a years-old rule to review.
In Energy Future Coalition, the producers say EPA re-opened the alternative test fuels rule to judicial challenge
because the agency’s proposed version of the Tier 3 rule explicitly invited comment on the 2002 policy’s application to
the Tier 3 regulation. EPA’s invitation to comment on the topic in the proposed version of the rule re-opened the testing
policy to judicial review under the D.C. Circuit’s “re-opener” doctrine, the ethanol groups say.
Further, the Tier 3 rule creates “after-arising grounds” for the court to re-examine the alternative test fuels rule
despite the window for litigating the policy closing years ago, the producers argue, because the Tier 3 rule explicitly
applied the rule to light-duty cars and trucks, effectively updating the policy’s reach.
The ethanol groups say that EPA’s errors in the Tier 3 rule on the testing fuels contradict the agency’s apparent
overall intent to increase fuel efficiency and drive down GHG emissions.
They ask the court to vacate the Tier 3 and alternative test rule language requiring that such fuels be “commercially
available” and “readily available nationwide,” and “remand with instructions to consider comments regarding the
alternative test fuel rule’s usage and inappropriateness requirements.” — Stuart Parker
18
INSIDE EPA - www.InsideEPA.com - October 17, 2014
EPA Says Industry Lacks Basis For Wastewater ‘Blending’ Policy Lawsuit
EPA is arguing that industry lacks a basis for challenging agency letters and other actions industry says show EPA’s
attempt to avoid applying nationwide an appellate decision that said the agency cannot bar “blending” of partially and
fully treated wastewater in wet weather events, with EPA saying the letters are not subject to judicial review.
In an Oct. 2 brief filed with the U.S. Court of Appeals for the District of Columbia Circuit, the agency says industry
can only sue over a decision by the agency to veto a specific state-issued Clean Water Act (CWA) permit, rather than
mounting a single challenge based on the letters that could apply nationwide. The brief is available on InsideEPA.com.
See page 2 for details.
“[T]here is no finality if the Agency ‘merely explains how [it] will enforce a statute or regulation — in other words,
how it will exercise its broad enforcement discretion or permitting discretion under some extant statute or rule,’” EPA
says in its motion to dismiss Coalition for Responsible Regulation (CRR) v. EPA.
CRR, a wastewater industry group, is seeking to force EPA to implement nationwide the 8th Circuit’s ruling in Iowa
League of Cities, where a three-judge panel held that the agency has no authority to use permit veto power to effectively
ban blending — in which a portion of peak wet-weather flows is channeled around secondary treatment units, treated
using other methods and blended with fully-treated wastewater before discharge (Inside EPA, Aug. 22).
CRR cites an April 2 letter from then-acting EPA water chief Nancy Stoner to Ken Kirk, executive director of the
National Association of Clean Water Agencies (NACWA), as highlighting EPA’s attempt to limit the scope of the 8th
Circuit ruling. Stoner told Kirk that EPA would consider whether to allow blending on a “case-by-case basis” outside of
the 8th Circuit, which industry claims is effectively an illegal rulemaking that seeks to override the appeals court.
EPA previously drew criticism for a policy memo that attempted to limit the scope of an adverse 6th Circuit ruling
seen as weakening its Clean Air Act “aggregation” permitting policy to only the states covered by that circuit. But the
D.C. Circuit subsequently struck down the memo, requiring the ruling to be applied nationally.
As a result, the agency recently announced it has started work on a proposed rule to amend its “regional consistency”
policy requiring uniform application of EPA requirements across all its regions that would exclude judicial rulings from
the consistency policy. The rulemaking, reported by Inside EPA, would allow EPA to limit the scope of adverse court
decisions on its rules to only those states within the court’s jurisdiction (Inside EPA, Oct. 3).
The CRR case therefore could pose a fresh challenge to the agency’s attempt to prevent applying nationwide the
decision of an appellate court. If the D.C. Circuit this time sides with EPA and rejects the suit, it could force industry to
litigate blending through individual permit challenges, undercutting industry’s push to establish the 2013 ruling as
definitive and raising the possibility of a circuit split on the issue.
A decision in the agency’s favor could also mitigate the precedent set by EPA’s loss in Iowa League, which also dealt
with the finality of agency memos regarding blending.
EPA argues in its Oct. 2 brief that Stoner’s letter to Kirk set out no specific orders to state or regional regulators, in
contrast to the memos that the 8th Circuit held were definitive mandates to permit writers.
Instead, the agency says, she only gave her interpretation of what the Iowa League decision requires of EPA, and left
any concrete decision on how it would proceed for a later time.
“EPA did not discuss its views in any level of detail relative to the detail it provided in its letters to Senator Grassley
in Iowa League. EPA did not, for example, discuss whether and to what extent the Agency may, as opposed to must, allow
aspects of the Iowa League decision on a case-by-case basis on matters arising outside the Eighth Circuit. EPA left these
questions for another day (and permit proceeding),” the brief says.
The brief reiterates claims from the memo that because the ruling did not overturn a national rule, EPA is under no
obligation to apply it outside the 8th Circuit — especially because the D.C. Circuit has already upheld EPA’s regulation
barring “bypasses,” which it is interpreting to include blending, in the 1987 case Natural Resources Defense Council v.
EPA. — David LaRoss
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INSIDE EPA - www.InsideEPA.com - October 17, 2014
19
Environmentalists Threaten Suit Over EPA Pesticide Approval For GM Crops
Environmentalists are threatening to sue over what they say is EPA’s “unbelievably foolish” decision to approve
the use of a decades-old herbicide on new genetically-modified (GM) crops and impose new weed resistance
management requirements to address concerns the new uses will lead to increased pesticide spraying and spur weed
resistance.
EPA Oct. 15 announced registration of Dow AgroSciences’ Enlist Duo, an herbicide containing 2,4-dichlorophenoxyacetic acid (2,4-D) and glyphosate, on new GM corn and soybean seeds the U.S. Department of Agriculture (USDA)
approved last month. Glyphosate is already commonly used on GM crops, though conventional growers have sought
additional pesticides that may be used with GM crops to combat weeds that are increasingly resistant to glyphosate.
Relevant documents are available on InsideEPA.com. See page 2 for details.
While registering the new herbicide product containing 2,4-D, EPA also imposed new requirements for weed
resistance management, an approach the agency says it will use for all future registrations of herbicide products designed
for use with GM crops. But environmentalists say the approach is inadequate.
The controversial registration of Enlist Duo comes after EPA received more than 400,000 comments, many of them
opposing the decision, and arguing that encouraging farmers to revert back to the decades-old 2,4-D shows GM crops
have failed to reduce use of the most toxic pesticides and have spurred increased weed resistance.
In an Oct. 15 statement, EPA says its decision to allow use of 2,4-D on GM corn and soybean seeds follows thorough
assessment of potential environmental and human health risks, including specific consideration of risks to children, and
that the registration decision meets the Food Quality Protection Act standard of reasonable certainty of no harm to human
health.
“EPA scientists used highly conservative and protective assumptions to evaluate human health and ecological risks
for the new uses of 2,4-D in Enlist Duo,” according to EPA’s statement. “The assessments confirm that these uses meet
the safety standards for pesticide registration and, as approved, will be protective of the public, agricultural workers, and
non-target species, including endangered species.”
EPA’s registration decision approves Enlist Duo for use in six Midwestern states — Illinois, Indiana, Iowa, Ohio,
South Dakota and Wisconsin — where the agency has concluded the herbicide will not pose risks to endangered species.
But EPA also announced on Oct. 15 that it is considering whether to expand the registration to 10 additional states,
including Arkansas, Kansas, Tennessee and Oklahoma. EPA is taking comment until Nov. 14 on whether to expand the
registration to additional states.
The public debate surrounding the registration of Enlist Duo pits conventional growers who are seeking
expanded use of herbicides designed for use with GM crops to all farms facing weed resistance, against environmental
and food safety groups who have asked EPA and USDA to impose a moratorium on new GM products until the agencies
strengthen their approvals processes to consider the growing use of herbicides that farmers are spraying to combat
increased weed resistance that has accompanied use of those products.
Dozens of House Democrats also opposed the registration in a July 31 letter to EPA Administrator Gina McCarthy
and USDA Secretary Thomas Vilsack, citing “grave concerns” and arguing EPA failed to adequately assess the human
health and environmental risks, and calling for better consideration of health risks ranging from inhalation and aggregate
exposures to 2,4-D, as well as stronger protections for children.
Environmentalists responding to EPA’s Oct. 15 registration, argue the herbicide’s approval will greatly increase
spraying of 2,4-D, a substance that poses risks for deadly cancers of the immune system and other health effects, and are
pledging to explore all options to stop the use of GM crops.
In an Oct. 15 statement, Andrew Kimbrell, executive director of the Center for Food Safety (CFS) says, “EPA has
turned its back on those it purports to protect — the American people and our environment,” adding that CFS “will
pursue all available legal options to stop the commercialization of these dangerous crops.”
The Center for Biological Diversity (CBD) says in a statement that EPA’s decision to register Enlist Duo in six states
would expose more than 20 endangered species to the herbicide, and that the decision continues EPA’s failure to consult
with federal wildlife officials under the Endangered Species Act on the potential risks to endangered species before
registering pesticides.
“To be clear, EPA’s conclusions about the ecological risk of Enlist Duo on endangered species are not credible,
because they do not have the expertise to assess the impacts of pesticides on wildlife,” the CBD statement says.
EPA says its risk assessments have shown the new uses of 2,4-D are safe, and that its registration decision includes
“first-time ever restrictions to manage the problem of resistant weeds.” — Dave Reynolds
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INSIDE EPA - www.InsideEPA.com - October 17, 2014