Monday, September 01, 2014

Lawmakers Pushing EPA-Crafted Bill To Stymie CWA Pesticide Permit

Clarification Appended

A bipartisan group of House lawmakers are planning to quickly move EPA-crafted legislation that would scuttle the agency's forthcoming Clean Water Act (CWA) general permit for the application of pesticides to U.S. waterways by placing the authority to regulate pesticides and their application explicitly under the Federal Insecticide, Fungicide, & Rodenticide Act (FIFRA).

But supporters only have a short time to pass the measure through both houses of Congress before EPA's pesticide general permit is set to take effect by court order April 9.

The legislative language -- which EPA crafted at the lawmakers' request but has not taken a position on -- was the subject of a Feb. 16 joint hearing between the House Committee on Agriculture's nutrition and horticulture panel and the House Transportation & Infrastructure Committee's (T&I) water resources and environment panel.

Rep. Jean Schmidt (R-OH), who chairs the agriculture committee panel, said in her opening statement that the bill aims to nullify a 2009 decision by the U.S. Court of Appeals for the 6th Circuit in National Cotton Council v. EPA, which held that the agency must permit chemical spraying activities on or near waters under the water law, rather than undermine the agency's authority in any other way.

In this particular case, Schmidt said the agency was forced to develop a burdensome rule against its will by an overreaching court ruling, and so the bill would simply reverse that ruling. "While there are many issues confronting this Congress in which our relationship with the EPA may unfortunately seem to be more adversarial, in this particular case we recognize and acknowledge that the EPA is as much a victim of an erroneous court order as are state and local governments and pesticide applicators," Schmidt said. "We are hopeful that the bipartisan spirit in which we address this issue will be a model for how we confront other issues."

EPA drafted the bill language by request of House lawmakers, but the agency has taken no official position on the bill. Steven Bradbury, director of EPA's Office of Pesticide Programs, supplied testimony during the hearing about how the agency regulates pesticides under FIFRA, but declined to answer questions about the agency's forthcoming general permit for pesticides, which is being crafted by the Office of Water. But Bradbury did say the FIFRA framework is capable of protecting waterways from environmental hazards posed by pesticides.

"The regulatory restrictions imposed by EPA under FIFRA directly control the amount of pesticide available for transport to surface waters," Bradbury said. "In sum, EPA uses its full regulatory authority under FIFRA to ensure that pesticides do not cause unreasonable adverse effects on human health or the environment, including our nation's water resources."

Andrew Fisk, president of the Association of State and Interstate Water Pollution Control Administrators (ASIWPCA), said in his testimony that the inclusion of pesticide sprayers in the universe of point source dischargers subject to clean water permits has the dual effects of subjecting sprayers and permitting authorities to the financial burden of complying with the permits or the liability of violating the CWA.

ASIWPCA has sought EPA's cooperation in asking the court to grant a six-month stay of the April 9 court-ordered deadline to allow states more time to issue their own general permits, but regardless of whether the stay is granted, Fisk suggested regulating pesticides under the CWA was unnecessary.

"No matter the duration, a stay does not address a fundamental question -- is this the appropriate way to manage pesticide applications in or near water going forward?" Fisk said. "Is this necessary when another federal statute already regulates these applications and provides states sufficient authority to regulate these discharges in consideration of local and site specific water quality issues?"

Regulated Point Sources

In its 2009 ruling in the Cotton Council case, the 6th Circuit ruled that the agency's longstanding exemption of pesticide sprayers from the National Pollutant Discharge Elimination System (NPDES) permitting process was arbitrary and ordered the agency to consider pesticide sprayers a point source subject to permitting requirements.

House Republicans vowed that the Cotton Council ruling would be among the items that they would seek to address in the 112th Congress, though it was among the few environmental rulings they have expressly sought to reverse.

But the committees' hearing on the issue -- and the fact that EPA drafted the bill's language -- indicate that opponents of the ruling are making a concerted and serious effort to get the bill passed before the April 9 deadline. While the legislative language has not been introduced as a bill, several lawmakers expressed support for the bill, including Schmidt, T&I water panel chairman Bob Gibbs (R-OH), ranking member on the Nutrition and horticulture panel Joe Baca (D-CA), and Agriculture Committee Chairman Frank Lucas (R-OK).

Rep. Tim Bishop (D-NY), ranking member of the T&I water panel, did not explicitly express opposition to the bill, but excoriated the leaders of the joint committee hearing for not allowing a more diverse array of opinions to be heard during the hearing. In addition to Bradbury's and Fisk's testimony, the panel heard from the National Association of State Departments of Agriculture, the Suffolk County, NY Division of Vector Control and the National Water Resources Association. -- John Heltman

Editor's Note: An earlier version of this story misidentified the National Association of State Departments of Agriculture.

Last Updated on Thursday, 14 July 2011 15:44

GOP Amendment Seeks To Stall Non-Mercury Limits In EPA Air Toxics Rules

Clarification Appended

House Science Committee Chairman Ralph Hall (R-TX) is suggesting a new approach for EPA to address air toxics from power plants and boilers, offering a rider to the fiscal year 2011 continuing resolution (CR) that urges EPA not to regulate hazardous air pollutants (HAPs) other than mercury from those sources until EPA and the National Academy of Sciences (NAS) conduct a "comprehensive review" of such rules' health and economic impacts.

Hall's amendment, which the House Parliamentarian ruled was out of order because it sought to legislate on an appropriations bill, comes as other Republicans are seeking to block EPA from issuing its boiler rule, which is due for release in the coming days. EPA is poised to propose its rule setting maximum achievable control technologies (MACT) standards for utilities next month.

Hall's amendment appears to be as a marker for future efforts that the lawmaker is planning to scrutinize EPA's regulatory process through oversight hearings, and potentially additional legislation. A House GOP aide says EPA would be free to propose and finalize its MACT rules, even if the amendment passes, but suggests that the completed EPA-NAS study could provide additional ammunition to opponents of those rules if it undercut EPA's justifications or showed the rules benefits did not outweigh their costs.

The amendment offered Feb. 15 is one of a number of riders GOP lawmakers are offering to the CR to restrict EPA's air, waste, water, climate and other rules. House GOP leaders have said they hope to complete debate on the CR by Feb. 17.

Other riders would bar EPA from regulating "articles" under chemicals law, prohibit EPA from issuing rules to cut greenhouse gases (GHGs) from stationary sources, and eliminate various environment-related government positions such as the White House energy and climate adviser slot held by Carol Browner, who is leaving the administration.

Environmentalists are warning about the restrictions that the riders would place on EPA, and some Democrats including Rep. Jared Polis (CO) have offered amendments to protect the agency's authority. Other Democratic riders aim to direct millions of dollars in agency funding, such as water grants for rural communities.

The CR currently funding the government expires March 4, and lawmakers at press time were debating the GOP's legislation to extend the resolution through the end of the fiscal year, which ends Sept. 30. Broadly, the resolution would cut EPA's budget by $3 billion from its FY10 level of around $10 billion.

Two-Year Contract

Hall's amendment to the CR would order EPA and NAS to enter into a contract to spend no more than two years performing "a comprehensive review of non-mercury hazardous air pollutants, or air toxics, emitted by electric generating units and industrial boilers, and related health and economic data (including impacts on job creation and energy price, supply, and reliability) associated with potential regulation of non-mercury" HAPs.

The rider -- not voted on at press time -- directs NAS to recommend "appropriate regulatory standards" and "establish appropriate health-based exposure standards" for non-mercury HAPs.

Until completion and review of the two-year study, EPA "is discouraged from issuing any regulatory determination" for non-mercury HAPs, including a maximum achievable control technology (MACT) standard for power plants or boilers. EPA is crafting a MACT to cut mercury emissions from power plants after a federal appeals court rejected the Bush EPA's mercury cap-and-trade emissions rule designed to avoid a HAP rule.

Hall's amendment appears to echo industry concerns with EPA's upcoming rules. The American Public Power Association (APPA) -- representing public utilities -- is slated to consider a resolution at a March 1 meeting of APPA's legislation and resolutions committee in Washington, D.C. that would urge EPA to limit the utility MACT to mercury emissions and not other HAPs. The Minnesota Municipal Utilities Association is sponsoring the resolution.

Some industry groups have also suggested that EPA may not be able to collect information from utilities on air toxics other than mercury because EPA has not formally determined that the sector is a significant source of such pollutants.

But EPA is seeking to downplay industry concerns about the rule. She told state utility regulators Feb. 14 that EPA would seek to provide flexibility.

And environmentalists are panning the suggestion that air toxics need additional study before they can be regulated. Natural Resources Defense Council Clean Air Director John Walke said during a Feb. 15 conference call that it was a "classic maneuver to study an issue to death" and predicted it was laying the groundwork for an amendment to prohibit EPA from issuing new air toxics rules either once the CR goes to conference or in future legislation. "This amendment . . . is directly aimed at subverting that process and [EPA's rulemakings]," he said.

Other GOP Amendments

Another GOP amendment to the CR would block EPA from exercising little-used authority under the Toxic Substances Control Act (TSCA) to regulate "articles" and other products containing industrial chemicals. Freshman Rep. Cory Gardner (R-CO) offered the amendment, prohibiting EPA from using funds to "propose, finalize, implement, or enforce any regulation that includes any article or substance" under TSCA.

The amendment comes as EPA is stepping up its efforts to regulate articles under TSCA, after legislation that would have explicitly granted the agency such authority failed in the last Congress. Industry sources have raised concerns that EPA's efforts could set a broad precedent expanding its regulatory reach.

Additionally, a Rep. John Carter (R-TX) amendment would eliminate various positions within the administration, including EPA's senior adviser for the Great Lakes Restoration Plan; the White House's assistant to the president for energy and climate change, the position held by Browner; and the Council on Environmental Quality's special adviser for green jobs. Carter's amendment does not eliminate the State Department's special envoy for climate change, who represents the United States in international climate treaty negotiations; an amendment offered Feb. 14 by Rep. Steve Scalise (R-LA) would have cut that position, currently held by Todd Stern.

Rep. Ted Poe (R-TX) offered an amendment furthering the bill's limits on EPA's GHG authority. As introduced, the CR would prevent stationary source limits on "emissions of greenhouse gases due to concerns regarding possible climate change." Poe's amendment would specify what GHGs EPA would not be able to regulate -- carbon dioxide, methane, nitrous oxide, sulfur hexafluoride, hydrofluorocarbons (HFCs), or perfluorocarbons (PFCs) – after Jan. 1, 2011, and does not limit regulations to concerns over climate change, potentially preempting additional limits on HFCs and PFCs related to their effect depleting the ozone layer.

Rep. Don Young (R-AK) also offered an amendment Feb. 15 to prevent EPA's Environmental Appeals Board (EAB) from reviewing any permit to sources drilling offshore or along the arctic coast. The amendment is the second from Young aimed at helping Shell proceed with stalled offshore oil exploration in Alaska; an amendment introduced Feb. 14 would exempt the Alaskan arctic from clean air act requirements.

An amendment offered Feb. 14 from Rep. Bob Goodlatte (R-VA) would block EPA from implementing its landmark pollution diet for the Chesapeake Bay watershed.

Democrats Offer Riders

Democratic amendments related to EPA include efforts to steer agency funding to specific projects or issues, and attempts to ensure that GOP riders blocking GHG rules would not harm other, more popular programs.

A rider from Rep. Peter Welch (D-VT) would require $15 million in EPA funding from Safe Drinking Water Act (SDWA) technical assistance grants go to small rural communities. And Rep. James Clyburn (D-SC) would devote 10 percent of state and tribal assistance grant (STAG) funds to "persistent poverty counties."

Rep. Bruce Braley (D-IA) offered a rider to amend the prohibition on EPA's climate regulations to clarify that it would not prohibit implementation or enforcement of the agency's renewable fuel program. -- Nick Juliano

Editor's Note: This story has been updated to reflect floor action on the amendment.

Last Updated on Wednesday, 16 February 2011 19:50

EPA Suggests Lengthy Implementation Plan For Stormwater Retrofits

FT. LAUDERDALE -- A top EPA official is suggesting that the agency may provide municipalities and other stormwater sources a lengthy implementation period in cases where EPA requires retrofits to existing facilities to comply with new permit and regulatory measures to limit stormwater flows.

Connie Bosma, who heads the municipal branch of EPA's Office of Water, told a conference of the National Association of Clean Water Agencies (NACWA) here Feb. 2 that she believes that the agency, if it decides to include retrofitting requirements in its forthcoming stormwater rule, would likely extend the implementation schedules in order to accommodate cost considerations.

"If we do include this requirement, I am guessing it's going to be a very long period of time that people get to implement . . . the plan," Bosma said.

But Bosma said that the agency considers the retrofit provision to be a vital part of its stormwater rule, because without it the agency would only be able to maintain current water quality rather than improve it. The other provisions the agency is considering for the rule -- such as expanding the jurisdiction of municipal separate storm sewer system (MS4) permits and including stormwater management requirements for new construction -- would help keep the overall amount of stormwater pollution stable, it would not have the effect of reducing runoff pollution, she said.

"If we establish and implement post-construction standards for new and redevelopment, we will not be -- and this is especially in urbanized areas -- we might keep the status quo in terms of water quality, but we won't be improving it," Bosma said. "So in order to improve water quality, we may need to establish retrofit programs to retrofit stormwater practices on sites."

While utilities and states have been conditionally receptive to the idea of expanding MS4 jurisdiction and establishing redevelopment requirements in the stormwater rule, they have long been hostile to the inclusion of retrofits, citing the considerable cost that would be associated with applying stormwater management controls to sites that are not undergoing any other manner of construction or redevelopment.

Nathan Gardner-Andrews, NACWA's general counsel, told the association's stormwater committee Feb. 1 that NACWA has voiced concerns to EPA about the retrofit provision, and said that utilities' preference would be that EPA not include retrofits in the stormwater rule at all.

If EPA does choose to include retrofit requirements, Gardner-Andrews said, EPA would have to require permitting authorities to demonstrate that retrofits would have a noticeable improvement on water quality, and if they did so, EPA would have to include additional funding assistance to permittees to implement the retrofits. Gardner-Andrews also said that development and implementation schedules would have to be very long-term in order to keep costs down to a level that water utilities can manage.

"If EPA decides to pursue the retrofit requirement, we've made it very clear with them that they need to provide significant, significant time frames for cities to develop and implement retrofits," Gardner-Andrews said. "We suggested that five years would be the minimum to develop a plan, and 30 years would be the be the minimum for implementation, understanding that that time period can significantly be lengthened to meet the circumstances of a permittee or municipality."

An EPA source says the scope of the implementation schedule that the agency is considering was somewhere between five and 20 years.

Bosma added during her presentation that the retrofit requirement would likely include other mitigating provisions as well, such as tailoring permit requirements to meet the circumstances of a given community. For example, a community that is experiencing a great deal of growth could have a requirement that focuses more on redevelopment projects rather than "true retrofits," or improving stormwater management for sites that are already complete. For communities that are not experiencing as much growth, the permits could focus more on retrofitting existing sites.

Bosma said the agency heard during its listening sessions on the rule last year that there is considerable concern from states, municipalities and permit holders about the cost implications that the stormwater rule could pose, and that the agency is looking for comments on ways to make the rule's cost burdens less intensive. But Bosma also said that when EPA did a survey of MS4 permits, they found that 41 percent of phase I and 20 percent of phase II permittees already have some form of retrofit program in place, and the agency intends to use those plans as a possible model for the EPA retrofit rule.

"I was a little bit surprsised at how high those numbers are, and what we're planning on doing is calling some of those to give more information about what their retrofit plan looks like," Bosma said. -- John Heltman

Activists Fear Delayed Policy Paper Could Push Back PM NAAQS Revision

Public health advocates are raising concerns that EPA's months-long delay in issuing a final policy review of its existing particulate matter (PM) national ambient air quality standards (NAAQS) could further delay a proposed rule to revise the PM standards that the agency now says it will likely not release until August at the earliest.

EPA last revised its PM standards in October 2006. The Clean Air Act requires the agency to update its NAAQS every five years. But without a court-ordered deadline compelling EPA to issue a revised standard by a certain date, observers fear the revision will be delayed beyond the 5-year deadline. Advocates argue that EPA must quickly tighten the PM NAAQS and further delay will result in continued exposure to PM levels they say are harmful to human health.

EPA declined to discuss the reasons behind the delay in issuing the final policy assessment or the proposed revision to the standards as a whole, but sources suggest EPA's massive workload -- including reviews to other air rules including an ozone NAAQS revision slated for final issuance in late July -- could be the reason behind the PM NAAQS delay.

EPA in its Spring 2010 regulatory agenda predicted having a proposed rule out by December 2010 and a final rule by August 2011. EPA in its Fall 2010 regulatory agenda issued in December then punted its projected date for a proposed rule to March 2011, also delaying issuance of a final rule until November 2011.

Now, according to EPA's "Rulemaking Gateway" website, the agency is not projected to have a proposal out until August this year. The website does not offer any projected date for EPA to issue a final regulation.

Even before EPA issues a proposed rule to revise the standard it needs to issue a final version of its policy paper underpinning the PM NAAQS review that outlines agency staff's recommended revisions to the standard. EPA has its Clean Air Scientific Advisory Committee (CASAC) review its policy papers before issuing a final version, which in turn the agency uses to help it craft a proposed rule on revising its PM standards.

CASAC reviewed the first draft policy assessment April 8-9 and the second draft July 26-27 last year. The existing NAAQS issued in 2006 tightened the 24-hour fine particulate matter (PM2.5) NAAQS to 35 micrograms per cubic meter (ug/m3) and retained an annual PM2.5 standard of 15 ug/m3. EPA in the same rule retained its existing 24-hour large particulate matter (PM10) standard of 150 ug/m3 while revoking an annual PM10 NAAQS.

The latest draft policy paper reviewed by CASAC suggests tightening the annual PM10 standard to between 65 and 85 ug/m3 and the annual PM2.5 standard to within a range of 11 and 13 ug/m3. Staff say if EPA sets the annual PM2.5 NAAQS at 11 ug/m3, it "could" also consider tightening the 24-hour PM2.5 standard to 30 ug/m3.

EPA's review of the standard will include its response to a February 2009 federal appeals court ruling remanding the Bush-era annual PM2.5 NAAQS to the agency, asking EPA to better justify its standard.

But the fact that EPA has still not issued a final policy assessment is prompting concern from activists that EPA will miss its five-year statutory deadline for issuing a proposed rule to revise the existing PM standards.

'Alternative Standards'

EPA Administrator Lisa Jackson sent an Oct. 7 letter to CASAC Chair Jonathan Samet saying the agency is working on finalizing the policy assessment, focusing on "further developing and refining our approach for evaluating the adequacy of the current suite of particulate-matter standards and in identifying potential alternative standards for consideration." Jackson said EPA planned "to issue a final policy assessment in October 2010" and at that time will "send a memorandum highlighting revisions in the analyses and the final document we made in response to your comments." But EPA has yet to issue the policy paper or send the memorandum to CASAC.

"It looks very much like [EPA] will miss" the five-year NAAQS review deadline says a public health source, noting that EPA delaying revisions to its various NAAQS "appears to be a problem that EPA has had recently."

For example, EPA has punted several times on issuing a final revision to the 2008 Bush EPA's ozone standard. After the agency missed its target goal of having the final rule out last year, it told a federal appeals court hearing litigation over the Bush-era rule that the agency should be able to issue a final revision by July 29. Environmentalists involved in that litigation are urging the court to impose a hard July 29 deadline for EPA to issue the final ozone standard.

A source with an environmental group says that "delays in the NAAQS process are an unhappy fact of life that has long plagued the process," adding that the most important issue will be for EPA to "get the PM2.5 standard right" by setting it at a level that will save lives and avoid greater incidences of related ailments. "We urge EPA to move ahead quickly since every day of delay means dirtier air for Americans," the source says.

The source rules out suing EPA to try and force a hard deadline for the PM review, as the review will include the agency's response to an existing suit and remand over the Bush-era annual PM2.5 standard, and that EPA is obligated to resolve what environmentalists saw and the court agreed were "legal deficiencies" with the Bush EPA's NAAQS.

In the meantime, the public health source emphasizes that the delay means that the current standard, which the scientific community has proposed is considered inadequate to protect public health, will remain in effect and in turn delay efforts to reduce PM exposure. NAAQS "drive everything else we do to clean up air pollution," the source says.

In a statement to Inside EPA, an agency spokeswoman says, "we are working to finalize the final policy assessment, which will discuss potential options for the Administrator to consider as EPA develops a proposed rule. . . . We're working to get that document issued as soon as we can. We will issue a proposed rule later this year."

While EPA declined to offer an explanation for the delay, several observers speculate that reason could be a heavy workload for EPA staff as it prepares NAAQS standards as well as several other high-profile efforts. "I suspect it's a matter of volume on their plate more than anything else," says one observer.

A top official with the American Public Health Association (APHA), a broad organization representing public health professionals, says it remains unclear what standard EPA might opt to set in its upcoming proposed PM NAAQS revision. The official notes many studies have shown that significant negative health effects result from PM exposure, but that EPA will have to figure out the level they want to regulate and what can be achieved.

"When you're thinking about how best to regulate particulate matter, I think they have to be real careful that they move in the direction that will truly improve health," the official says, going onto say that "the overwhelming issue" for APHA as EPA works toward releasing its proposed standard is following the recommendation of scientific knowledge on the matter. APHA will wait to see a proposal before issuing a formal statement, the source says. -- Bobby McMahon


OIG Finds EPA Failed To Properly Review Proposed Brownfield Cleanups

EPA has failed to follow federal requirements when reviewing due diligence reports intended to ensure the adequacy of cleanup investigations conducted under the brownfields assessment grants program, leaving in doubt the quality of the remediation done under the agreements, according to a new report from the Office of Inspector General (OIG).

OIG in its Feb. 14 report says the agency lacks "management controls" for oversight of the appropriate inquiry (AAI) reports that developers submit to EPA as one of the requirements to obtain brownfields cleanup grants.

OIG, therefore, recommends the Office of Solid Waste & Emergency Response (OSWER) establish accountability measures for AAI reports required for brownfields assessment grants, develop a plan to review the final reports to ensure compliance and establish criteria "for disallowing federal costs for noncompliant AAI reports produced under Brownfields Assessment grants and take action to disallow costs as appropriate."

EPA did not clearly agree or disagree with the OIG recommendations, according to the report. EPA took issue with OIG's characterization of AAI requirements but agreed that additional guidance on reviewing brownfields-related documents may be necessary and said it would work with OIG on the specifics.

EPA argued that because of the nature of the brownfields programs, AAI reports are reviewed by the state and tribal authorities, not the agency itself. But OIG says that if states and tribes are to be supervising AAI activities, "that is not a common understanding in the Brownfields Program."

However, OIG says this initial response to the recommendations was "incomplete." In particular, the report notes, "OSWER stated a 'willingness to work' with the OIG in addressing the recommendations but did not provide corrective action plans and milestone dates."

"In its 90-day response to this report, OSWER needs to agree or disagree with recommendations and provide appropriate corrective action plans and estimated or actual milestone completion dates," the report says.

OIG reviewed 35 AAI reports that were part of $2.14 million in brownfields grant funding in three regions. The reports are used to show that the property was evaluated for potential and present environmental contamination, part of the environmental due diligence that must be done at a site to obtain certain landowner liability protections under federal law. The 2002 brownfields law requires that a person who acquires a property after contamination occurred and seeks to avoid strict Superfund liability must exercise due diligence -- what EPA calls AAI -- to limit future contamination.

In its review of the AAI reports, OIG found that none of them contained all of the required elements needed for compliance with federal standards. According to the review, investigators found cases of AAI reports lacking signatures of the environmental professional conducting the assessments and statements on data gaps. In addition, all of the reports reviewed were missing a required statement that certified the qualifications of the environmental professional and a complete and accurate opinion section at the conclusion of the report.

"The discrepancies . . . encountered in the investigation fail to assure that the work performed was sufficient to identify environmental conditions at the site," according to the report. "These discrepancies introduce a risk that potential threats to human health and the environment may fail to be recognized."

Similar problems were found with AAI reports for brownfields grants issued under the American Reinvestment and Recovery Act.

The report faults agency project officers for relying on environmental professionals conducting the AAIs to self-certify compliance instead of actively reviewing the reports themselves, and the agency in general for lacking "management controls requiring EPA [project officers] to conduct oversight of AAI reports to assure they meet federal documentation standards."

OIG points out that EPA has options at its disposal for enforcing compliance, including temporarily withholding payments to grantees, terminating the grant, requiring a grantee to repay the funds received and other legal options.


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