Sidley Environmental Trends

Topics discussed this week include:

  • Maryland sues EPA to compel response to Clean Air Act 126 Petition.
  • C. Circuit denies request to invalidate EPA decision to stay landfill emissions rule.
  • EPA grants additional extensions for formaldehyde rule.
  • FERC issues supplemental EIS for Southeast Market Pipelines Project.
  • District Court affords deference to state interpretation of Clean Air Act.
  • EPA launches “Smart Sectors” program.
  • Safety commission orders rulemaking on flame retardants.
  • Court orders EPA to issue plans for fine particulate matter.

Maryland sues EPA to compel response to Clean Air Act 126 Petition. On Sept. 27, the state of Maryland filed suit against the U.S. Environmental Protection Agency (EPA) seeking an order compelling the agency to respond to the state’s Clean Air Act Section 126 petition. Maryland, Connecticut and Delaware all previously petitioned the EPA to regulate nitrogen oxide (NOx) emissions from upwind sources that the petitioners allege interfere with the attainment of National Ambient Air Quality Standards for ozone in their states. The petitions have targeted coal-fired power plants in states such as Indiana, Kentucky, Ohio, Pennsylvania and West Virginia. This follows a similar lawsuit filed by the state of Connecticut in May. Maryland alleges that plants in the upwind states are not operating their existing pollution controls enough to achieve necessary NOx emissions reduction. Presently, under the Cross-State Air Pollution Rule emissions trading program, power plants can comply with emissions requirements by buying NOx emissions allowances instead of operating their controls.

D.C. Circuit denies request to invalidate EPA decision to stay landfill emissions rule. The U.S. Court of Appeals for the District of Columbia Circuit denied the request of environmental nongovernmental organizations (NGOs) to invalidate the EPA’s decision to delay implementation of mandatory reductions for landfill methane emissions. The court instead ordered more briefing, including on whether the lawsuit is now moot because the 90-day delay ended in August. The NGOs had argued that the EPA’s delay suffered from the same flaws that led the court to vacate the EPA’s stay of new source performance standards for the oil and gas sector earlier this year. A rule finalized in July 2016 had required landfills to establish gas collection systems and conduct monitoring and included requirements for dumps nearing the end of their lives. EPA Administrator Scott Pruitt announced in May that he would delay compliance for 90 days because the agency planned to reconsider certain aspects of the rules as requested by industry groups.

EPA grants additional extensions for formaldehyde rule. On Sept. 25, the EPA granted industry more time to comply with a rule limiting formaldehyde emissions from wood products. The Formaldehyde Emission Standards for Composite Wood Products Act of 2010 established emission standards for formaldehyde from composite wood products and directed the EPA to finalize a rule on implementing and enforcing a number of provisions covering composite wood products, which the EPA published on Dec. 12, 2016. Since that time, the EPA has issued a number of changes and implementation date delays. In its Sept. 25 notice, among other steps, the EPA extended the manufactured-by deadline to comply with emission standards, recordkeeping and labeling provisions to Dec. 12, 2018, moved the deadline for compliance with import certification provisions to March 22, 2019, and changed the compliance date for provisions applicable to producers of laminated products to March 22, 2024.

FERC issues supplemental EIS for Southeast Market Pipelines Project. In August, a D.C. Circuit panel vacated the approval by the Federal Energy Regulatory Commission (FERC) of the Southeast Market Pipelines Project because FERC failed to consider sufficient information regarding the greenhouse gas (GHG) emissions expected to result from the Florida power plants likely to use the gas supplied by the pipelines. On Sept. 27, FERC addressed the court’s order by issuing a draft supplemental environmental impact statement (SEIS) that considers the GHG emissions and finds that the emissions would not have a significant environmental impact. Under the National Environmental Policy Act (NEPA), federal agencies must consider the “reasonably foreseeable” indirect effects of federal actions subject to NEPA’s requirements, and the D.C. Circuit had found that downstream GHG emissions from the pipeline fit this category. The court disagreed that NEPA did not require FERC to analyze downstream greenhouse gas emissions because the pipeline operators have no ability to control power plant emissions. FERC has now shown that the pipeline’s emissions represent between 3.7 and 9.7 percent of Florida’s total GHG emissions. FERC concluded that for this project, atmospheric modeling was not reasonable and analyzing regional effects was not possible. The comment period for the draft SEIS will be open through Nov. 20.

District Court affords deference to state interpretation of Clean Air Act. On Sept. 15, a federal district court judge issued a novel ruling extending to Utah the deference that courts have traditionally given to the U.S. EPA on its interpretations of the Clean Air Act. In Grand Canyon Trust v. Energy Fuels Resources, et al., the plaintiffs alleged the defendant’s disposal of uranium milling waste violated radon standards that the EPA set under the act despite the Utah Department of Air Quality’s determination that the facility was in compliance with applicable law. District Judge Clark Waddoups of the U.S. District Court for the District of Utah held that courts should give at least “some deference” to states tasked with implementing the Clean Air Act and other federal environmental laws, although the court acknowledged the issue is “not well settled” at the appellate level. The court deferred to how Utah construed regulations implementing limits on radon emissions from uranium mill tailing impoundments.

EPA launches “Smart Sectors” program. On Oct. 3, EPA Administrator Pruitt announced the launch of the agency’s Smart Sectors program, a partnership between the EPA and major industry sectors regulated by the agency, including aerospace; agriculture; automotive; cement and concrete; chemical manufacturing; construction; electronics and technology; iron and steel; oil and gas; ports and shipping; and utilities and power generation. Smart Sectors will designate points of contact within the EPA who are highly knowledgeable about specific industries. These individuals will act as liaisons with industry trade associations and companies, EPA program and regional offices, state and local governments, and other stakeholder groups. The liaisons will focus on building relationships and improving customer service to sectors, developing additional expertise in each industry’s operations and environmental performance and informing the planning of future policies and regulations. The EPA seeks to develop coordinated, cooperative and constructive problem solving aimed at demonstrating environmental progress while reducing regulatory burdens.

Safety commission orders rulemaking on flame retardants. On Sept. 20, the Consumer Product Safety Commission (CPSC) approved a petition asking the commission to convene a Chronic Hazard Advisory Panel and create a rule to restrict all non-polymeric organohalogen flame retardants from children’s products, furniture, mattresses and the casings of electronics and to warn consumers of the risks. The decision went against the recommendation of CPSC staff, who said the data on toxicity and exposure was not sufficient. The panel will provide scientific expertise to CPSC staff as it proceeds to develop the rules. The CPSC also directed staff to issue an interim guidance on the use of the retardants in certain consumer products while the panel completes its work. The flame retardant issue is particularly complicated because it involves both the hazard of fire and the chronic hazard of exposure to chemicals that inhibit fire.

Court orders EPA to issue plans for fine particulate matter. In a Sept. 18 ruling, the U.S. District Court for the Northern District of California has ordered the EPA to issue a final decision on whether several states have failed to comply with federal air quality standards for fine particulate matter. The Center for Biological Diversity and the Center for Environmental Health had sued the EPA last year, alleging it had failed to exercise its duty to require states to comply with these standards. States had faced a December 2015 deadline to issue the plans, but six states failed to comply. Under the court’s order, the EPA now has three months to make the formal finding that Pennsylvania, Washington, Illinois, Massachusetts and Rhode Island failed to submit State Implementation Plans and one year to make a decision on the plan for New Jersey. Once the EPA makes a finding of failure to submit, it has two years to issue a federal implementation plan instead, unless the state first submits, and the EPA then approves, a plan.