Yesterday, the United States Court of Appeals for the Fourth Circuit (“Fourth Circuit” or “the court”) vacated a federal district court’s order requiring EPA to account for the economic impacts of Clean Air Act (“CAA”) regulations. This decision stems from a suit filed by coal companies claiming that EPA had failed to perform a non-discretionary duty by completing continuous evaluations of job losses and plant closures resulting from CAA implementation or enforcement as required under Section 321 of the CAA. In a strongly worded opinion, the district court ordered EPA to come into compliance with the requirements of Section 321 by July 2017, an order that EPA subsequently appealed to the Fourth Circuit.
Yesterday a group of organizations with ties to the Shenandoah River sued the EPA claiming that EPA violated the Clean Water Act (CWA) by approving Virginia’s 2014 305(b)/303(d) Water Quality Assessment Integrated Report (Integrated Report) which includes a listing of Virginia’s water quality-impaired rivers. The groups claim that Virginia failed to evaluate data and information showing impairments to the North Fork, South Fork, and main stem of the Shenandoah River and their tributaries (collectively the Shenandoah River) due to algae blooms resulting from nutrient over enrichment, and as a result failed to add the Shenandoah River to the impaired waters list. The groups claim that EPA’s approval of Virginia’s Integrated Report violated the CWA because EPA relied on Virginia’s determination that it is too challenging to apply Virginia’s water quality standards to algal blooms, and therefore EPA failed to require that the Shenandoah River be listed as impaired by excessive algae and that as a result EPA also failed to promulgate a Total Maximum Daily Load (TMDL) for the pollutants causing the impairment in violation of its obligations under CWA § 303(d)(2). Continue Reading Suit against EPA Claims CWA Violations for Approving Virginia’s Water Quality Assessment Integrated Report
On May 23rd, the Trump administration released its full fiscal year 2018 budget proposal, continuing its call for significant funding cuts for many EPA programs. Consistent with the framework outlined in the administration’s “skinny” budget issued earlier in March, the proposal would cut EPA’s overall budget by 31.4 percent, reducing overall spending from $8 billion in 2017 to $5.7 billion for 2018. The plan would eliminate approximately 20 percent of the agency’s workforce, reducing the number of staff from over 15,000 to approximately 11,600, a reduction of approximately 3,800 jobs.
On April 24th, the U.S. Court of Appeals for the District of Columbia Circuit issued an order indefinitely delaying oral argument and holding in abeyance litigation over EPA’s 2015 Startup, Shutdown and Malfunction (SSM) Rule. The order comes in response to EPA’s request for a continuance to allow it to review the SSM Rule for possible modification or repeal. EPA must file status reports on its review of the SSM Rule at 90-day intervals beginning 90 days from the date of the order. Within 30 days of EPA informing the court of what action it has or will take with respect to the rule, parties to the litigation must file motions to govern future proceedings.
In the May 2017 issue of Natural Gas & Electricity, Partner Mack McGuffey offers a summary of the new direction the EPA will take under the appointment of its newest EPA administrator, Oklahoma Attorney General Scott Pruitt. A copy of the article can be obtained here: “Clearing the Air on EPA’s New Chief.” Natural Gas & Electricity 33/10 ©2017 Wiley Periodicals, Inc., a Wiley company.
Following up on its recent promise to evaluate all existing regulations and reduce regulatory burden, EPA held a public teleconference on April 24th to take ideas on reforming its air-related regulations. The call was scheduled for three hours, with each commenter limited to three minutes. The commenters essentially fell into two categories—environmental interest groups criticizing any attempts at what they view as a roll-back of important environmental protections, or businesses and industry groups citing specific regulations and guidance that should be reviewed and revised. For example, David Doniger of the Natural Resource Defense Council expressed support for EPA’s climate regulations and encouraged EPA to “do its job,” while Andrea Field of the Utility Air Regulatory Group sought specific review and reform of the CO2 standards for new power plants, the mandatory greenhouse gas reporting rule, the Cross-State Air Pollution (CSAPR) Update Rule, visibility regulations, and pre-construction permitting requirements. Other important rules mentioned by industry commenters included EPA’s methane standards for oil and gas production facilities, EPA’s national ambient air quality standards for ozone and particulate matter, the renewable fuels program, the maximum achievable control technology standards for industrial boilers, and EPA’s guidance on the use of dispersion modeling to assess air quality impacts. Written comments in response to EPA’s request are due May 15, 2017, although several commenters have already requested more time.
If you have any questions regarding the EPA teleconference, please contact Mack McGuffey at (404) 885-3698.
As previously reported, President Trump has issued an Executive Order calling on EPA and the U.S. Army Corps of Engineers (Corps) to formally review the “Clean Water Rule” also known as the Water of the United States (WOTUS) Rulemaking. On April 19, EPA laid outs its plans for revising the Clean Water Rule consistent with the Executive Order in a meeting with state and local officials. Continue Reading EPA Sets Out Plans For WOTUS Replacement
In an April 18th letter to petitioners who requested reconsideration of EPA’s Oil and Natural Gas Sector: Emission Standards for New, Reconstructed and Modified Sources Rule, EPA Administrator Scott Pruitt announced the agency’s intent to convene a proceeding for reconsideration of the rule’s fugitive emissions monitoring requirements. In its current form, the rule imposes limits on methane, volatile organic compounds and toxic air emissions from new, modified and reconstructed sources in the oil and natural gas industry. EPA also plans to issue a 90-day stay of the compliance date for the fugitive emissions monitoring requirements.
On April 18th, EPA filed motions in separate cases asking the D.C. Circuit Court of Appeals to delay pending litigation over two Clean Air Act (CAA) rules. In one case, EPA asked the court to delay oral argument, scheduled for May 18th, in the litigation challenging its supplemental findings regarding the cost of the Mercury and Air Toxics Standards (MATS) Rule, which regulates hazardous air pollutant emissions from coal- and oil-fired power plants. EPA argues that a continuance is appropriate because it intends to review the supplemental finding for possible modification or repeal, citing President Trump’s recent “Executive Order on Promoting Energy Independence and Economic Growth.”
On April 5, 2017, the EPA responded to a request from industry stakeholders saying it will reconsider the Obama-era Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category rule (“ELG Rule”) that set the first federal limits on how much toxic metal can be discharged with power plants’ wastewater. 80 Fed. Reg. 67838 (Nov. 3, 2015).