According to POLITICO, even Republicans in Congress are concerned that the EPA will not move forward with a rulemaking to regulate PFOS and PFOA.  It appears acting EPA Administrator Andrew Wheeler has already approved a decision, contained in the agency’s forthcoming chemical management plan, not to add the chemicals to the group of contaminants regulated under the Safe Drinking Water Act.  The decision follows controversy over the Trump administration’s suppression of a report from the Department of Health and Human Services which suggests that Perfluoroalkyl compounds, which include PFOS and PFOA, are more prevalent, and pose a greater risk to Americans’ health, than previously known.

The question now is whether Congress will take any action.  It has rare leverage at the moment, as Mr. Wheeler’s nomination to head the EPA as its permanent Administrator is in the hands of the Senate Environment and Public Works Committee.  A vote is scheduled for February 5th and, on a committee where the Republicans have only a one seat advantage, a defection by any one of them could potentially kill Mr. Wheeler’s prospects.  Senator Shelley Moore Capito of West Virginia has spoken out on the need to address Perfluoroalkyl contamination and may be the deciding vote.

Given the willingness of numerous elected Republicans to come out in favor of new federal regulations for PFOS and PFOA, some additional EPA action on the subject seems inevitable sooner or later.  And although EPA is likely to add PFOS and FPOA to the list of CERCLA hazardous substances, that will probably be viewed as inadequate by many, given how prevalent the chemicals are now understood to be.

But even if eventual federal regulation of PFOS and PFOA in drinking water were a certainty, further delay will likely have several significant effects.  Deferred  remediation expenditures is one obvious one.  Less straight forward, however, is the impact from parallel state action.  Some states already regulate the chemicals in groundwater and more will likely follow, particularly in the face of federal inaction.  If more of those regulatory regimes have time to be put into place and tested on a wide scale, they could indirectly shape federal regulation.  EPA may approach its regulatory role differently in a context where a contaminant is almost completely unregulated, compared to one where many states are effectively addressing a problem.  Furthermore, the Clean Drinking Water Act regulation must consider economic costs and benefits, and if states push ahead in this area they may spur the generation of substantial data on which the Agency can make that assessment.

We expect a lot more news and developments in this area and will be tracking it closely at Environmental Law Next.

Continuing on our discussion of the electronic manifest (e-Manifest) system, EPA Administrator, Scott Pruitt, signed the e-Manifest User Fee Final Rule on December 20, 2017.  EPA expects the final rule to be published in the Federal Register in the coming weeks.  The pre-publication version of the final rule is attached here.

Under the final rule, user fees are only being assessed on the hazardous waste and state-only regulated waste receiving facilities.  The “billable event” is the submission of the final manifest copy signed by the receiving facilities.  In assessing the user fee on the receiving facilities only, EPA stated that it was simplifying the billing process and assuming that the receiving facilities will pass on the fees through to the generators by service agreements.

The users will pay different fees depending on the type of manifest submitted.  Given that the user fee is based on cost recovery and that paper manifests are expected to cost more to process, paper manifest fees will be considerably higher than electronic manifests.  EPA is projecting that an electronic manifest will cost $4/manifest, while a mailed copy of a paper manifest will cost $20/manifest.  Image uploads are projected to cost $13/manifest and data file uploads $7/manifest.  These fees are estimates only, based on projections of project costs.  Final user fees will be forthcoming when EPA has a final budget and contracts in place for the system.  EPA will also be publishing revised user fee schedules at two-year intervals.  Based on these estimated numbers, there is a significant incentive for receiving facilities to submit manifests electronically.

The final rule is effective June 30, 2018, which coincides with the launch of the e-Manifest system.  EPA will begin collecting fees on that date.   Receiving facilities will receive an invoice each month and will be directed to the Department of Treasury’s Pay.gov website to submit electronic payments.

We will continue to follow and provide updates from EPA on the e-Manifest system.

 

 

 

Several environmental organizations have petitioned the D.C. Circuit Court of Appeals and moved to block EPA from implementing a 90-day administrative stay of the New Source Performance Standards covering methane emissions from oil and gas infrastructure.  A group of states, plus the District of Columbia and the City of Chicago, have since moved to intervene in favor of petitioners.  Industry groups and conservative leaning states have lined up to support the agency’s action.  The rule, which focuses on detecting and repairing methane leaks, would have required oil and gas well owners and operators to complete initial monitoring by June 3, 2017.

Petitioners ague that EPA lacks the authority to issue a stay of finalized regulations under the Clean Air Act other than pursuant to 42 U.S.C. § 7607(d)(7)(B), which requires identification of an objection of central relevance to the rule that could not have been raised during the initial public comment period.  The groups claim that these conditions are not satisfied, as all the issues relied on by EPA were extensively deliberated during the public comment period, or at least could have been, and in any event are not centrally relevant.  For example, petitioners attack EPA’s claim that its rationale for including low producing well sites in the leak detection and repair program was not presented to the public, noting that EPA explicitly sought comment on this issue in its 2015 proposal.

Petitioners also contend that the stay is overboard and that the EPA’s failure to narrowly tailor it to the specific issues under reconsideration, or balance the equities involved, is arbitrary and capricious.

In response, EPA submits that 42 U.S.C. § 7607(d)(7)(B) establishes only when the agency must reconsider a rule, but that it has inherent authority to reconsider its decisions.  Its argument runs into a bit of trouble because the authority for the three month stay EPA initiated appears to be tied to a reconsideration pursuant to 42 U.S.C. § 7607(d)(7)(B).  Only secondarily does it defend its decision on the grounds that the conditions required by that section are satisfied.

This legal fight is part of a larger battle between the EPA and the environmental community over the rule.  On June 13, 2017, the EPA proposed an additional 2-year stay of portions of the regulations.  In particular, the agency has proposed to stay the fugitive emissions requirements, the well site pneumatic pump standards, and the requirements for certification of closed vent system by professional engineers.  Even if petitioners are successful before the D.C. Circuit, they will still have an uphill battle to maintain the rules indefinitely.  They do not dispute that the agency can initiate a separate rulemaking and likely permanently eliminate as much of the rule as it would like.

On May 18th, the D.C. Circuit Court of Appeals granted the EPA’s request to stay challenges to the New Source Performance Standards regulating methane emissions from oil and gas infrastructure, pending review of the rule in accordance with President Trump’s Energy Independence Executive Order.  EPA announced in April that it intended to reconsider the rule and was staying a future compliance date.

Since it was issued last year, the rule has been challenged by various oil and gas industry groups on the grounds that the EPA does not have the authority to regulate methane from oil and gas infrastructure. The challengers have signed on to the EPA’s motion to put the cases on hold pending a review of the current rules.

The President’s executive order specifically directed the EPA to review and reconsider the methane rules for new oil and gas infrastructure, and if appropriate, suspend, revise or rescind them. In its motion to put the cases on hold, the EPA argued that its review of the rules could impact the disputes awaiting resolution in the Court.

Various environmental groups, as well as several states, intervened in the dispute opposing the EPA’s motion, asserting that the EPA had not offered any concrete timeline for the review, rendering the hold indefinite.  The court rejected this argument, but did order the EPA to file status reports regarding its review every 60 days.

The precise fate of the rule is still uncertain, but it is likely it will be greatly rolled back, if not eliminated entirely.  EPA administrator Scott Pruitt has a long history fighting against precisely this kind of regulation of the oil and gas industry.  After President Trump’s decision to pull American out of the Paris Agreement, it is difficult to imagine the EPA leaving anything more than the bare minimum of the rule in effect.