CHALLENGE TO PORT CLEAN UP PLAN MAY REVIVE NOVEL PM RCRA SUIT

An industry effort seeking a court injunction against the Los Angeles and Long Beach ports for enacting a cleanup program for trucks and equipment serving the ports, if successful, may revive a dormant claim under the Resource Conservation & Recovery Act (RCRA) that particulate matter (PM) emissions constitute hazardous waste under the federal air act. The American Trucking Associations (ATA) July 28 filed a complaint in the U.S. District Court for the Central District of California against the cities of...

WATER REGULATORS BACK LEGISLATIVE PROPOSAL ON CWA JURISDICTION

PROVIDENCE, RI -- Water regulators from several states are backing a legislative proposal to clarify the scope of Clean Water Act (CWA), in an effort, they say, to restore the focus of the CWA after the Supreme Court's fractured 2006 Rapanos decision. The Water Resources Control Board is currently drafting a wetlands-protection policy and closely watching state and national developments involving CWA and Rapanos . At the annual meeting of the Association of State & Interstate Water Pollution Control Administrators...

LAWSUIT SEEKS TO ENFORCE 1994 ARB PLEDGE TO CUT DIESEL EMISSIONS

Environmental justice activists have filed a lawsuit against the air board charging it failed to honor commitments in a 1994 air quality plan to cut diesel emissions from trucks, which would have cleaned up the fleet sooner than pending efforts. The suit comes as the board is set to adopt by the end of this year a rule targeting smog-forming emissions from highway diesel trucks. But activists are seeking more diesel rules and say the suit could force the board...

FEDERAL RULINGS MAY BOLSTER VAPOR INTRUSION SUITS AGAINST INDUSTRY

Two recent federal court rulings may bolster efforts by government regulators and environmentalists to file suit under the Resource Conservation & Recovery Act (RCRA) to hold companies responsible for chemical vapors from decades-old waste sites that can contaminate indoor air, according to a legal observer following the issue. The U.S. District Court for the Southern District of Illinois in a July 28 ruling found that chemical vapors at issue in United States v. Apex Oil Company Inc . could cause...

FIRST-TIME RULING PARTIALLY UPHOLDS STATE ANTIDEGRADATION PROGRAM

A federal appellate court is backing EPA and state arguments that Kentucky's approach to determining which waterbodies merit increased protection against pollution is consistent with the Clean Water Act (CWA) in a just-issued ruling that marks the first time a federal appeals court has addressed so-called antidegradation regulations. But the court has also partially accepted environmentalists' arguments that EPA erred in approving Kentucky's categorical exemption of six types of pollution discharges that would normally be subject to antidegradation reviews --...

ACTIVISTS WEIGH HIGH COURT PETITION ON TITLE V PERMITTING CIRCUIT SPLIT

Environmental groups are weighing whether to ask the Supreme Court to resolve a circuit court split over whether facilities' Title V clean air operating permits must include compliance schedules amid pending enforcement actions against the facilities, following a just-issued circuit court ruling that rejected a 2005 circuit ruling holding such permits much include compliance plans. On Sept. 2, the U.S. Court of Appeals for the 11th Circuit issued a first-time ruling siding with EPA and industry that Clean Air Act...

HURRICANE GUSTAV TESTS EPA'S DISASTER RESPONSE AMID GAO CONCERNS

Hurricane Gustav is posing a key test for the adequacy of EPA's disaster response strategy, just days after the Government Accountability Office (GAO) issued a report that finds the agency has yet to implement several recommendations to improve its strategy following its criticized response to Hurricane Katrina. Environmentalists and other critics of EPA's disaster response planning say they will closely watch how the federal government reacts to Gustav and other storms that are expected to follow the hurricane. Three years...

AGENCY SPURS DEVELOPMENT OF LOCAL, LONG-TERM CLIMATE CHANGE MODELS

EPA is seeking to spur development of long-term models that can predict how climate change could affect local air quality in order to aid air quality planners in accounting for such changes, according to a recently announced $5 million research grant competition. The research will fill a gap in existing climate change models, says a source with EPA's National Center for Environmental Research (NCER), which is managing the grant competition. "In general, the current modeling tools used in air quality...

APPELLATE RULING REQUIRES STRICT ENVIRONMENTAL REVIEWS FOR GM CROPS

A federal appellate court ruling could force EPA and other agencies to conduct stricter reviews of the environmental impact of genetically modified (GM) crops, a move that could hamper GM planting at a time when industry and other officials are pointing to the technology as a way to bolster world food supply. The U.S. Court of Appeals for the 9th Circuit ruled Sept. 2 to uphold a lower court ruling barring all domestic planting of a GM alfalfa seed engineered...

DC CIRCUIT CASES TO POSE CRUCIAL TESTS FOR ENVIRONMENTALISTS, EPA

The U.S. Court of Appeals for the District of Columbia Circuit is slated to hear a number of cases this fall that are expected to pose a key test of environmentalists' ability to win standing to challenge EPA rules, as well as the extent that EPA is obligated to follow the guidance of its independent advisors in setting health-protective national ambient air quality standards (NAAQS). The fall session of the DC Circuit's calendar, which begins Sept. 4, comes as the...

EPA UNLIKELY TO FINISH KEY TOXICS REPORTING RULE BEFORE NEXT ADMINISTRATION

EPA is unlikely to issue before the next administration a rule codifying a controversial agency memo changing toxic reporting requirements for finished wood products, following a recent federal district court order that temporarily bars EPA from enforcing the changes laid out in the memo unless the agency promulgates a rule to adopt the changes and seeks public comment, sources say. At issue is an October 2007 agency memo requiring industry to issue Toxic Release Inventory (TRI) reports for emissions of...

TEXAS INDUSTRY TRIES TO FORCE SIP APPROVAL AMID ENFORCEMENT FOCUS

Texas industry groups in a just-filed lawsuit are seeking to force EPA's long-delayed approval of a state implementation plan (SIP) that includes a contentious "flexible" air permit rule, amid their ongoing concerns that EPA is preparing to sharpen its enforcement focus on facilities that might deviate from stringent Clean Air Act requirements under the unapproved Texas plan. Industry is also warning that if EPA successfully prosecutes Texas facilities for following state air rules rather than federal ones, that would set...

EPA GRAPPLES WITH RISK-BASED APPROACH FOR ADDRESSING BIOSOLIDS

EPA is seeking to determine whether it can move forward with a new, risk-based approach for addressing biosolids, an approach favored by the wastewater industry which is seeking to move away from the agency's current technology-based standards. The agency is "trying to evaluate if there is enough critical mass to use [risk-based standards] for rulemaking," according to an EPA source, who says models for determining risks posed by pathogens in the solids raise questions about how to develop rules. Agency...

EPA FINDS LARGE GAPS IN RESEARCH ON CLIMATE'S EFFECT ON ALLERGENS

EPA has identified large research gaps in how global warming may affect allergic diseases and is offering almost $2 million in grants to study the subject, following the release of an agency review of scientific literature on links between climate change and levels of airborne substances like pollen, mold, and indoor allergens. Sources involved in the peer review of the agency document say that the review highlights the "limited data" available about the connection between disease, climate change and the...

DOJ ASKS SUPREME COURT TO CLARIFY WATER ACT JURISDICTION TESTS

The Department of Justice (DOJ) for the first time is asking the Supreme Court to clarify how lower courts should interpret the high court's fractured 2006 Rapanos ruling, citing a clear split among circuit courts and alleging significant challenges to Clean Water Act (CWA) enforcement, especially in criminal cases, due to a key appellate ruling. The request marks a major change in position for DOJ, which has opposed seven previous attempts by industry and individuals seeking high court review of...

EPA, ARMY REACH TENTATIVE COMPROMISE OVER KEY CLEANUP CRITERIA DISPUTE

EPA Region II and the Army appear poised to end a significant dispute over criteria for deciding when state and federal drinking water and other relevant standards apply to a site cleanup under Superfund, by proposing to uphold EPA's groundwater cleanup policy and avoid setting a national precedent, an EPA source says. The dispute over the Army's Picatinny Arsenal in northern New Jersey highlights long-running differences between EPA and the military over the interpretation of site cleanup laws and regulations...

EPA TO BROADEN STATE RECOMMENDATIONS FOR PM2.5 NONATTAINMENT AREAS

EPA's just-proposed rule to designate areas that are out of attainment with the fine particulate matter (PM2.5) ambient air quality standard broadens or adds to many of the nonattainment areas recommended by states, teeing up likely disputes among states and the agency over the final designations. State and local air regulators largely attribute the discrepancy to a lack of monitors in some areas and differences in methodology for estimating attainment with the standard. The proposed nonattainment designations apply to areas...

ENVIRONMENTAL REVIEW AT KEY CLEANUP SITE PROMPTS STATE, ACTIVIST CONCERNS

State and local officials, along with national environmental groups, are raising concerns that the Department of Energy's (DOE) proposed scope of an environmental impact statement (EIS) for a key cleanup site in California may conflict with state's delegated authorities under the federal Resource Conservation & Recovery Act (RCRA) to determine appropriate contamination remedies and cleanup standards for the site. The Santa Susana lab site, located in Ventura County north of Los Angeles, housed a nuclear weapons production facility but experienced...

OFFICIALS URGE STATES TO USE EPA DATA IN INFRASTRUCTURE STIMULUS PUSH

PROVIDENCE, RI -- State and EPA officials are urging state water regulators to look to EPA data as a way to provide information to Congress about ready-to-go infrastructure projects that could be included in a second stimulus package focused on drinking water and wastewater infrastructure funding. House Majority Leader Nancy Pelosi (D-CA) has long been considering a second stimulus package, with the majority leader telling a Regional Plan Association meeting April 18, "with the economy slowing down and job losses...

ACTIVISTS SPLIT OVER SUPPORT OF GHG OFFSETS FOR PLANT CLOSURES

Environmental groups are split over whether to support voluntary but enforceable agreements with industry to offset increases in greenhouse gas (GHG) from proposed coal-fired power plants by closing older, higher-emitting plants. The growing split comes as the utility industry is increasingly agreeing to offset GHG increases from new coal-fired plants in order to reduce activist and public opposition to the new facilities. Shutting down older plants that emit greater amounts of GHGs also provides industry an alternative method for reducing...

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