EPA Guidance Documents

 

Wheeler Touts 'Massive Step Forward' On Document Disclosure. According to E&E News, “EPA Administrator Andrew Wheeler today declared he accomplished ‘perhaps the biggest change in administrative procedures in a generation.’ Speaking in a webinar hosted by the Federalist Society, Wheeler said he finalized a rule that boosts public participation and discloses thousands of nonbinding guidance documents that conservative ideologues have long considered ‘regulatory dark matter.’ ‘This is a massive step forward for EPA bringing these legal documents into the light,’ he said in a press release issued after the webinar. Guidance documents, which are nonbinding, can be quickly issued by an administration; they often shape larger regulatory agendas. The rule, which originated from a Trump executive order last fall, sets out a process whereby individuals or companies can petition to modify or reinstate existing documents. The agency, which Wheeler said has 10,000 guidance documents, has posted all of them online in a searchable database. Wheeler said he rescinded about 10% of the documents, which are not publicly available, for ‘housekeeping’ and other purposes. Critics point out the Trump administration has increased the number of guidance documents that benefit industry.” [E&E News, 9/14/20 (=)]

 

EPA Issues Rule On Guidance Documents. According to Politico, “EPA finalized a rule on Monday governing how EPA issues guidance documents, a move that comes after years of industry complaints that the agency frequently used such guidance in lieu of formal regulation. ‘Over time my prediction is that we will probably end up issuing more regulations and fewer guidance documents as a result of this,’ EPA Administrator Andrew Wheeler said on a webinar hosted by the Federalist Society. Details: The final rule (Reg. 2010-AA13) requires any ‘significant’ guidance document be published in the Federal Register and open for public comment for at least 30 days. The agency resisted calls to expand the notice-and-comment requirements to all guidance, arguing that it would do so on a case-by-case basis and that taking public comment on all guidance could lead to delays. EPA in the past has sometimes taken public comment on draft guidance, but often did not make public announcements in the Federal Register. Only documents listed on the agency’s guidance portal will be considered active. The rule applies to any guidance document ‘intended to have future effect on the behavior of regulated parties, that sets forth a policy on a statutory, regulatory, or technical issue, or an interpretation of a statute or regulation.’ The rule exempts circumstance-specific guidance issued to a particular company or individual, along with internal agency guidance. EPA has 90 days to respond to petitions, with an optional 90-day extension; if it misses that deadlines, the petitioner could sue to force the agency to answer.” [Politico, 9/14/20 (=)]

 

Clean Water Act

 

EPA Seeks Farm Panel’s Input On Interagency Work To Reduce Waste. According to InsideEPA, “EPA is asking its reconstituted Farm, Ranch, and Rural Communities advisory committee (FRRCC) on how to bolster interagency partnerships that can encourage water reuse, cut nutrient pollution and discourage food waste, as well as seeking input on the future if its pesticides program. During a Sept. 10-11 meeting of the FRRCC -- its first since 2016 -- EPA presented the group with two sets of charge questions designed to inform how the agency works with farms on pollution reductions and adoption of new technology, and to help officials better communicate how it makes decisions on pesticide registrations and regulations. Speaking to the panel on Sept. 11, EPA Administrator Andrew Wheeler said he hopes to use its eventual recommendations ‘to reassure the American public of the scientific underpinnings that go into our decisions on whether or not to license or approve a pesticide,’ in addition to its joint work with other agencies that affects agriculture. ‘We need to figure out what pilot programs we’ve adopted throughout the years working with all of you work the best, and then implement those across the board across the country,’ he said. EPA named a new slate of FRRCC members on June 17 after allowing the panel to go almost four years without meeting. The panel is made up of representatives from industry, academia, citizen groups and state, local and tribal governments.” [InsideEPA, 9/14/20 (=)]

 

Federal District Court Judge Seeks Clarification In Salt Ponds CWA Case. According to InsideEPA, “A federal district court judge is seeking clarification of three issues raised during Sept. 3 oral argument in an unusual Clean Water Act (CWA) jurisdiction case, prompting EPA, environmentalists and California to reiterate their positions while comparing the site in question to two hypothetical situations. The additional questions from Judge William Alsup of the U.S. District Court for the Northern District of California in San Francisco Baykeeper, et al. v. EPA followed a spirited oral argument where Alsup complained several times that the attorneys had sidestepped his questions. Environmentalists and state officials claim the Trump administration reversed a proposed jurisdictional determination (JD) by EPA Region 9 officials and excluded 1,365 acres of salt ponds adjacent to San Francisco Bay from CWA jurisdiction. ‘To what extent did the decision maker or anyone advising the decision maker on the matter consider the Region 9 proposed decision? The government so far has evaded answering this. Please give a forthright answer,’ Alsup said. The Sept. 10 joint response from environmental groups and California says that while EPA is in the best position to explain the extent to which the regional JD was considered by the EPA administrator or employees advising him, ‘it is undisputed that the Region 9 JD was considered at least indirectly, and thus belongs in the administrative record here.’” [InsideEPA, 9/14/20 (=)]

 

NWPR & WOTUS

 

9th Circuit Judges Probe Knowledge, Vagueness In CWA Criminal Case. According to InsideEPA, “A three-judge panel of the U.S. Court of Appeals for the 9th Circuit focused questions at Sept. 14 oral argument on the level of knowledge necessary for someone to be criminally liable under the Clean Water Act (CWA) of discharging fill material without a permit and whether the vagueness of key terms in the act affects that knowledge. The case, United States v. Lucero, has drawn national attention for its potential to wade into the thorny issue of CWA jurisdiction, but the judges at oral argument appeared more interested in broad questions of criminal liability rather than which of two competing Supreme Court CWA jurisdiction tests should apply. The panel of appellate Judges Bridget Bade and Patrick Bumatay and Judge Rosemary Marquez, sitting by designation from the U.S. District Court for the District of Arizona, interjected frequently to ask clarifying questions of the attorneys representing James Lucero and the Justice Department (DOJ) but gave little indication of how they might rule. Lucero is appealing his 2019 conviction by a federal jury on three felony CWA counts, arguing in part that the regulatory definition of waters of the United States (WOTUS) ‘is too vague to give notice of the conduct that it proscribes and prevent arbitrary enforcement.’ And in a supplemental brief in June, Lucero’s attorneys argue that the Trump administration’s new WOTUS rule is the only legally valid regulation that applies to his conduct, and the 9th Circuit should remand the case to the trial court to apply the new rule.” [InsideEPA, 9/14/20 (=)]

 

Water Pollution

 

Drinking Water

 

Michigan Awarded Grant To Test Lead Within School, Child Care Facilities Drinking Water. According to WPBN-TV, “Michigan has been awarded a nearly $2 million grant to test for lead within drinking water at schools and child care centers across the state. The $1,871,000 is coming from the U.S. Environmental Protection Agency’s (EPA) Voluntary Lead Testing in Schools and Child Care grant program. ‘This award is due to the hard work that EGLE’s Drinking Water and Environmental Health Division’s newly formed Lead and Copper Unit have put in finding funding sources and new ways to further protect our most vulnerable populations,’ said division director Eric Oswald. The Michigan Department of Environment, Great Lakes, and Energy is prioritizing the funding toward the protection of children in areas where blood lead levels in the state are higher, where schools are unable to pay for testing and to enhance community, parent and teacher trust. Invitations have been sent to schools and child care facilities that meet the criteria of the program.” [WPBN-TV, 9/14/20 (=)]

 

PFAS

 

Senate Dems Look For PFAS In Approps. According to Politico, “According to Politico, ‘New Hampshire Sen. Jeanne Shaheen (D) led a letter signed by 21 Democratic senators Friday, urging the leaders of the Appropriations Committee’s Interior-EPA subpanel to include measures combating PFAS contamination in the upcoming funding bill for fiscal 2021. The senators call for dedicated resources to research, monitor and clean-up the toxic chemicals, including $2.5 million to support EPA’s regulatory work needed to designate the chemicals as hazardous under the Superfund law, and $2 million to study the relationship between PFAS and Covid-19. House Democrats included some similar PFAS provisions in the Interior-EPA appropriations measure that passed as part of a minibus, H.R. 7608 (116), over the summer.” [Politico, 9/15/20 (=)]

 

Wastewater

 

AP | Greens Consider Appeal After Judge Tosses Ga. Sewage Suit. According to E&E News, “An environmental group says it believes a federal judge was wrong to dismiss its lawsuit over raw sewage released in suburban Atlanta and says it’s considering whether it will appeal. Judge Steven Grimberg of the U.S. District Court for the Northern District of Georgia on Aug. 31 dismissed a lawsuit brought by the South River Watershed Alliance claiming DeKalb County wasn’t doing enough to clean up sewage dumping problems under a consent decree with federal and state officials. Grimberg said the alliance, which seeks to improve the health and recreational use of the river, didn’t have legal standing to sue under the federal Clean Water Act because it couldn’t prove that EPA and the Georgia Environmental Protection Division weren’t diligently prosecuting their 2010 case against DeKalb County. The agencies are currently negotiating possible changes to the consent decree. The South River Watershed Alliance argued in its lawsuit that the governments aren’t doing enough. The alliance points to continued sewage releases by DeKalb County, a lack of a deadline to complete repairs, and fines of $800,000 for more than 1,000 spills and inaccurate reporting, arguing it’s cheaper for the county to pay fines than fix the problem. The alliance also says the governments let DeKalb implement a different hydraulic model than the one specifically agreed to in the consent decree.” [E&E News, 9/14/20 (=)]

 

Western Water

 

Efforts To Sustain Verde River Get A Boost With $1.2 Million Grant. According to Arizona Republic, “When two conservation groups prepared a ‘report card’ assessing the health of the Verde River watershed, they gave it a C-plus. The groups will now receive $1.2 million to help boost that score, supporting their efforts to restore and protect the river. The Nature Conservancy and Friends of the Verde River announced the grant from the Nina Mason Pulliam Charitable Trust, saying the funds will be used for projects such as water-saving irrigation systems, a voluntary water ‘exchange’ geared toward helping the Verde, and work to reduce the amount of sediment that flows off the landscape into the river. The Verde River sustains a lush riparian corridor of cottonwoods and willows, an oasis that teems with birds and attracts people who paddle its currents and wade into its muddy shallows. The river also faces a range of pressures as water is diverted for farms growing crops such as alfalfa and corn, and as groundwater is pumped to supply growing communities in the Verde Valley. ‘It’s pretty healthy overall. But we know that that’s at risk. As we think about climate change, and this is our second year in a row without monsoons, what does that mean for the river?’ said Kim Schonek, Verde River program director for The Nature Conservancy. ‘We know that more people mean more groundwater pumping. And so, what are the things that we can do to mitigate for that?’” [Arizona Republic, 9/14/20 (+)]

 

Flooding

 

Should Climate Change Dictate Where You Buy A House? According to The Mortgage Reports, “It’s no longer possible to ignore the effects of climate change. With wildfires, hurricanes, and other disasters threatening homes — especially along the coasts — it’s an issue at the forefront for homeowners. But there’s still some uncertainty about home buying and climate change. Are weather patterns still a secondary consideration? Or is it time to pick up and move to a safer region altogether? Naturally, the answer will be different for everyone. But knowing the facts can help you make a more informed decision about where to buy. We looked into the most- and least-at-risk areas to buy a house in the era of climate change and asked real estate experts for their advice. Here’s what we learned.” [The Mortgage Reports, 9/14/20 (+)]

 

Misc. Waterways

 

Coast Guard Inspected Ship Before Line 5 Anchor Dragging. According to The Detroit News, “Less than three weeks before a barge’s 12,000-pound anchor was dragged across Line 5, the barge and its newly installed anchor brake system were inspected by the U.S. Coast Guard and the American Bureau of Shipping. Both inspections on March 12 and March 18, 2018, found the system to be satisfactory. But on April 1, 2018, the improper installment of the anchor brake pad, the unexplained disengagement of two backup brakes, a series of communication errors and icy, rough waters caused the starboard anchor to pay out over the Straits of Mackinac, where it was dragged over dual oil pipeline and severed three transmission cables, according to a U.S. Coast Guard report. In the Coast Guard report, released July 15, the investigating officer recommended the suspension and revocation of the mariner credentials of a crew member on board the Erie Trader barge and Clyde S. Vanenkevort tug. The officer also recommended that a letter of warning be issued to another crew member. ‘However, upon further review of the facts of the case, relevant federal regulation and Coast Guard policy, the Coast Guard decided to not pursue further action,’ said Cmdr. Michael Hjerstedt, chief of prevention for Sector Sault Ste. Marie. The severing of the American Transmission Co. cables beneath the Straits released about 800 gallons of dielectric fluid from the cables after the anchor gouged Enbridge’s Line 5 in the midst of a heated, years-long debate over the pipeline’s safety. The state has since decided to encase Line 5 in a tunnel beneath the Straits, but the continued operation of the pipeline remains a subject of litigation between the Canadian oil giant and the state of Michigan.” [The Detroit News, 9/13/20 (=)]

 

Wary Of Biden Win, Drillers Rush For Permits. According to E&E News, “At the Barclays CEO Energy-Power Conference earlier this month, EOG Resources Inc. CEO Bill Thomas said the oil and gas company — which operates in states like Wyoming, Texas and New Mexico — was increasing its drilling on federal land this year. But Thomas also assured investors on an earnings call last month that EOG has successfully navigated federal resource policies for years. ‘I’m very confident, even in the most draconian scenario that you can possibly print, that EOG is going to be fine,’ he said. But industry groups have long raised red flags on Democratic policy priorities, and those warnings have grown louder since Biden formally became the party’s presidential nominee last month. Last week, a report commissioned by the American Petroleum Institute said a leasing moratorium on federal land and waters would slam states like New Mexico, Louisiana and Wyoming, eliminating hundreds of thousands of jobs and driving up industry imports of crude oil (Energywire, Sept. 10). The analysis prompted the Albuquerque Journal editorial board to call on New Mexico Gov. Michelle Lujan Grisham (D) to respond.” [E&E News, 9/15/20 (=)]

 

Health Concerns Spur Bid To Widen Drilling Setbacks. According to E&E News, “Colorado oil and gas regulators are considering banning new drilling activities within 2,000 feet of residences, schools and child care facilities in what would be the largest setback requirement in any major oil- and gas-producing state. A majority of voting members on the Colorado Oil & Gas Conservation Commission (COGCC) expressed support for a 2,000-foot setback statewide during hearings last week. The state currently bars oil and gas wells within 200 feet of buildings statewide, within 500 feet of buildings in certain urban areas and within 1,000 feet of high-occupancy buildings such as schools. If approved, the 2,000-foot setback would be considerably larger than setback rules in comparable states. Of the five states that produce the most oil and gas — Texas, North Dakota, New Mexico, Oklahoma and Colorado — none has statewide setbacks for oil and gas wells that exceed 500 feet, although some allow municipalities to set stricter rules. … The new setback is one of many regulatory changes that the COGCC is considering since the state passed a law last year to reshape the body and shift its focus to health and safety (Energywire, March 6, 2019). In addition to widening the setback requirement, the COGCC is reviewing proposals to reduce noise from drilling activities, regulate dust and odors, and give more weight to the potential impacts of drilling on wildlife and water resources (Energywire, Aug. 24). While oil and gas industry groups said they support some of the proposed regulatory changes, they were swift to criticize the setback proposal. API Colorado, a state branch of the American Petroleum Institute, said the commissioners have not considered the economic impacts of a 2,000-foot setback and characterized the proposal as politically motivated.” [E&E News, 9/15/20 (=)]

 

AP | State Checking Reports Of Stinky Lakes After Hurricane Laura. According to E&E News, “Decaying plants pushed in by Hurricane Laura are the likely cause of stinky, bad water in two southwestern lakes, and a fish kill in one lake adds to the stench, state officials say. ‘Its not dangerous. It just smells bad. It’s a real nuisance in some spots,’ Department of Environmental Quality press secretary Greg Langley said Friday. Water quality teams sent by Secretary Chuck Carr Brown were checking Lake Charles and Prien Lake on Friday, he said. And the Department of Wildlife and Fisheries checked the fish kill in Lake Charles. Earlier DEQ assessments found that the storm surge Aug. 27 pushed in both dead plants and salt water, which killed some of the plants growing there. As they decay, oxygen levels go down. That in turn killed fish. ‘Biologists found species such as Gulf menhaden, mullet, catfish, carp, Atlantic croaker, red drum, black drum, and others were present,’ said Wildlife and Fisheries Secretary Jack Montoucet. Brown said, ‘The current situation will follow its natural course and dissipate as the tides flow in and out.’ He said scientists will try to figure out how long that’s likely to take. Brown said assessment teams are still working to locate any petroleum spills or leaks in the storm zone. People shouldn’t assume that any sheen or dark material on water is from oil, he said. Department environmental scientist David Greenwood said, ‘When that vegetative material decays, it releases substances that can look exactly like an oil sheen. But it’s not.’ He said scientists in the field use a ‘stick test’ to tell the difference: ‘You drag a stick through it, breaking it into pieces. If the pieces don’t come back together immediately, then it’s not oil.’” [E&E News, 9/14/20 (=)]

 

 

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