Sunny With a Chance of Rain: Latest Updates on the Environmental Protection Agency

“You win some, you lose some,” might be the motto these days at the Environmental Protection Agency, which has recently seen a legal win in Texas, a loss in the DC District Court, and an unfortunate data breach exposing the personal financial information of nearly 8,000 employees:

“The Washington Business Journal published a report of a breach at the Environmental Protection Agency which exposed the Social Security numbers and banking information of nearly 8,000 individuals, most current employees of the EPA… Compromised information reportedly included SSN, bank routing numbers and home addresses.” (Data breaches du jour….. by Mintz Levin)

Here’s a roundup of advisories on these and other, recent EPA-related developments:

Judge Sides With Coal Industry Against EPA (Dinsmore & Shohl LLP):

“In a long awaited ruling, District of Columbia U.S. District Court Judge Reggie Walton ruled yesterday that the Environmental Protection Agency’s Final Guidance, relied upon by EPA to block Clean Water Act permits for virtually all new or expanded surface coal mining in Kentucky and West Virginia, was illegal and that EPA had exceeded its authority under the Clean Water Act and Surface Mining Control and Reclamation Act. Walton also ruled that the Final Guidance infringed upon the authority given by Congress to states to adopt their own water quality standards and police their own state waters.” Read on>>

EPA Loses Another Battle in the War Over Guidance: Judge Walton Rejects EPA’s Final Guidance On Mountaintop Removal Permits under the CWA (Foley Hoag LLP):

“The decision is not a surprise to anyone who has been following the case… Judge Walton telegraphed his views when he stated that even EPA’s Interim Guidance ‘qualified as final agency action because … it is … being applied in a binding manner.’ … EPA obviously understood the message from Judge Walton’s prior decision and other cases, such as Appalachian Power, holding that guidance which functions as regulation will be treated as such by the court.” Read on>>

EPA Wins Another CAA Case: No Affirmative Defense For Excess Emissions During Planned Maintenance (Foley Hoag LLP):

“Score a victory for EPA in its long-running set of disputes with the State of Texas and generation facilities in Texas. Yesterday, in Luminant Generation Co. v. United States Environmental Protection Agency, the 5th Circuit Court of Appeals affirmed EPA’s decision to partially approval and partially reject the Texas SIP, essentially rejecting both environmentalist and industry challenges to EPA’s determination regarding excess emissions during startup, shutdown, and malfunction/maintenance.” Read on>>

D.C. Circuit Court Issues Important Ruling on Greenhouse Gas Regulatory Program (Spilman Thomas & Battle, PLLC):

“In what has been described as a ‘sweeping victory’ for the U.S. Environmental Protection Agency, the United States Court of Appeals for the District of Columbia Circuit issued a decision on June 26, 2012 in lawsuits that challenged various aspects of the Agency’s regulatory scheme for greenhouse gases.” Read on>>

D.C. Circuit Rejects Challenge to EPA’s GHG Rules (Lewis and Roca LLP):

“The lawsuits were brought by a collection of states and industry groups arguing that EPA’s Endangerment Finding, Tailpipe Rule, and Timing and Tailoring Rules are not supported by the Clean Air Act (CAA) and are otherwise arbitrary and capricious. In a per curiam opinion, the three judge panel unanimously rejected each of the petitioners’ challenges…” Read on>>

Judge Gold Issues Another Historic Everglades Order This Week: EPA Proposal Moves Forward (Rosa Eckstein Schechter):

“United States District Judge Alan Gold makes news this month (again) with another Everglades Order: you’ll recall that he issued a pretty big ruling last fall with his decision to put the federal government and not the State of Florida in the role of issuing pollution permits that impact the Everglades… This week, Judge Alan Gold in a rather short and sweet order (it’s only three pages long) okayed the $880 million dollar phosphorus clean up plan proposed by the EPA (Environmental Protection Agency).” Read on>>

Not a Good Start for Challenges to EPA NAAQS Revisions: The District of Columbia Court of Appeals Affirms EPA’s New NOx NAAQS (Foley Hoag LLP):

“Yesterday, in American Petroleum Institute v. EPA, the D.C. Circuit Court of Appeals affirmed EPA’s revisions to the National Ambient Air Quality Standard for NOx. The revisions adopted, for the first time, an hourly NAAQS for NOx, in addition to the annual standard.” Read on>>

Two Wins in a Week for EPA on NAAQS: The DC Circuit Upholds EPA’s New SO2 Standard (Foley Hoag LLP):

“Today, the DC Circuit upheld EPA’s revised SO2 standard. The tenor of today’s decision, written by David Sentelle, another Reagan appointee (the NOx decision was written by Douglas Ginsburg), is fairly similar to that in the NOx decision.” Read on>>

EPA Requires Additional Hazardous-Chemical Reporting Data for Natural-Gas Operations Regulated under EPCRA (K&L Gates LLP):

“The U.S. Environmental Protection Agency (EPA) recently issued a final rule that changes the type of information owners or operators of facilities must submit as part of their hazardous-chemical reporting obligations under the Emergency Planning and Community Right-to-Know Act (EPCRA). Under EPCRA, natural-gas operators may be required to report the presence of hazardous chemicals (such as hydraulic fracturing fluids) at an operation. In the past, natural-gas operators have been penalized for failing to adhere to these reporting requirements.” Read on>>

CLEAN AIR ACT — EPA Issues No Action Assurance Regarding Area Source Boiler Rule (Pierce Atwood LLP):

“On July 18, 2012, EPA issued an extension of the March 13, 2012 No Action Assurance regarding the Area Source Boiler Rule initial tune-up and notification deadlines. The July 18 EPA memorandum extends the deadline of the March 13, 2012, No Action Assurance from October 1, 2012 to December 31, 2012, or the effective date of a final rule addressing the reconsideration of the Area Source Boiler Rule, whichever occurs earlier.” Read on>>

How Good Are You At Reading Tea Leaves? EPA Intends To Reconsider Parts of the Mercury Rule (Foley Hoag LLP):

“… EPA announced that it was reconsidering part of the Utility MACT rule. As part of the reconsideration, EPA will stay the effectiveness of the new source emission standards in the rule for three months.” Read on>>

More Tea Leaves to Read: EPA Announces an Eleven-Month Delay in Its Cooling Water Intake Structure Rule (Foley Hoag LLP):

“… EPA announced that it was delaying for 11 months final promulgation of its cooling water intake structure rule for existing facilities under the Clean Water Act. Reaction was predictable. Reed Super, plaintiffs’ attorney was ‘disappointed,’ but clearly resigned. Senator Inhofe characterized the delay as: ‘President Obama’s decision to punt on yet another job-killing EPA regulation before the election.’” Read on>>

House Appropriations Committee Votes to Cut EPA Budget by 17 Percent, Limit Regulatory Authority (King & Spalding):

“… the $28 billion bill, drafted by Representative Mike Simpson (R-ID), the chairman of the appropriations subcommittee with jurisdiction in this area, includes a 17 percent cut in funding for the EPA and, according to a Committee press release, ‘also includes legislative provisions that will address the overreach of federal agencies, such as the EPA, that mandate overly burdensome regulatory hurdles that hinder job creation and inhibit the ability of American businesses to grow and thrive.’” Read on>>

A Thoughtful Discussion By Policy Makers of a Difficult Issue? How Refreshing! (Foley Hoag LLP):

“… EPA’s recent proposed rule regarding backup generators would allow additional operations by such generators when used to assist in demand response. It’s a tricky issue, because diesel generators are not clean, and the aggregated emissions from a number of small, but uncontrolled diesel generators can be significant.” Read on>>

EPA Issues Updated Clean Air Act Standards for Petroleum Refinery Process Heaters and Flares (McAfee & Taft):

“On June 1, 2012, the EPA issued a final rule updating 2008 Clean Air Standards regarding process heaters and flares at petroleum refineries. The new standards will cut pollution from process heaters, which are used to heat process fluids. The process heaters will need to meet emission standards for nitrogen oxides.” Read on>>

Natural Gasoline Pipeline Spills Prompt DOJ to Lodge Consent Decree Against Owner, Operator (McAfee & Taft):

“[T]he Department of Justice, on behalf of the EPA, lodged a consent decree in U.S. District Court in Nebraska wherein it proposes to settle a number of alleged Clean Water Act violations in connection with three spills of natural gasoline from a pipeline owned by Mid-America Pipeline, LLC (MAPCO) and operated by Enterprise Pipeline.” Read on>>

Court Orders EPA to Hasten Issuance of Revised Particulate Standards Rule (McAfee & Taft):

“… the U.S. District Court for the District of Columbia ordered the EPA to sign a proposed rule setting air particulate standards by June 7, 2012. Further, the court held publication of the rule in the Federal Register must be expedited with the period for public comment set for nine weeks.” Read on>>

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