Legislative Update: EPA Sends Final Definition of Waters of the US, Senators Introduce Bill Focused on Plastic Pellet Dumping

EPA Sends Revised WOTUS Rule to OMB

The Environmental Protection Agency (EPA) has submitted a final definition of “waters of the United States” (WOTUS) to the White House Office of Management and Budget (OMB). This move paves the way for upcoming stakeholder meetings sharing their perspectives and arguments regarding how the Supreme Court’s Sackett v. EPA decision should impact the rule. The EPA aims to issue a new WOTUS definition by September 1, and officials have indicated their intention to “surgically” amend the previously issued rule to accommodate the Sackett decision.

The OMB’s website confirms the receipt of the final WOTUS rule, labeled as a “final action,” bypassing the typical notice and comment process. This expedited approach is attributed to the limited timeframe for enacting the rule and the agency’s assertion that it has “good cause” to skip the proposal step under the Administrative Procedure Act (APA). EPA water chief Radhika Fox told the House Transportation and Infrastructure’s Subcommittee on Water Resources and Environment during a July 13 hearing that the existing regulatory framework under WOTUS does not align with the Sackett decision. Despite the absence of a comment period, the EPA plans to engage with stakeholders through implementation discussions after issuing the final rule.

During the review process, various groups, including environmentalists, industry representatives, and lawmakers, are expected to raise questions and concerns regarding the scope and impact of the eventual rule. There have been debates about the pace of implementation in response to the Sackett decision and how much the revised rule will narrow the reach of the Clean Water Act. While the significant nexus standard will be eliminated, the EPA acknowledges that other provisions, such as the definition of adjacency, will also need to be addressed based on the Supreme Court’s clear statements in the Sackett decision.

In other WOTUS news, the US District Court for the Southern District of Texas on July 10 issued an order staying a case brought by Texas and Idaho that seeks to dismiss the Biden administration’s definition for WOTUS  under the Clean Water Act in light of the Supreme Court’s Sackett v. EPA ruling. The stay will remain until the EPA  and US Army Corps of Engineers unveil their revised rule.

Senators Introduce Bill to Eliminate Plastic Pellet Dumping

U.S. Senate Majority Whip Dick Durbin (D-IL), Jeff Merkley (D-OR), and Ben Cardin (D-MD) have reintroduced the Plastic Pellet Free Waters Act (S. 2337). The bill would mandate the EPA to ban the release of plastic pellets and other pre-production plastics into water bodies from facilities involved in their production, usage, packaging, or transportation. The rule would apply to all permits issued by the EPA and state-delegated programs for wastewater, stormwater, and other sources, as well as standards of performance applicable to point sources.

The Senators stated that plastic pellets are a major source of plastic pollution in waterways and are ingestion by marine life, including fish, has led to ecological harm and poses a risk to human health. Rep. Mike Levin (D-CA) will introduce companion legislation in the House.

SACC Report Finds “Many Shortcomings” in Draft TSCA CRA

The EPA’s Science Advisory Committee on Chemicals (SACC) has released a peer-review report criticizing the agency’s draft principles for cumulative risk assessment (CRA). The report states that the document is “confusing,” its purpose is “unclear,” and it lacks compliance with the 2016 Toxic Substances Control Act (TSCA) reform law. The SACC report highlights inadequacies in defining potentially exposed or susceptible subpopulations (PESS) and fenceline communities, as required by the Lautenberg Act. The report also criticizes the EPA for its inadequate discussion of exposure assessment principles, lack of transparency, and shortcomings in addressing computational tools and data relevance. The SACC recommends changes to the principles document, including clearer purpose, explicit rules and concepts for CRA, addressing chemical classes to prevent substitution, and clarifying when CRA will be used.

House Cuts Interior-EPA Spending Bill

The House Appropriations Committee passed its FY 24 Interior-Environment spending bill on July 19 in a vote of 33-27.  House Republicans aim to significantly reduce funding for energy and environmental agencies that the Biden administration and Democrats had previously supported. The proposed bill would cut $13.4 billion or 35 percent from the current funding levels, approving $25.4 billion in nondefense discretionary spending for FY2024. Although the GOP’s chances of passing such deep cuts are slim due to Democrats’ control of the Senate, the bill signals a shift away from the trend of increasing funding for these agencies. Republicans argue that the bill reduces wasteful spending, limits job-killing regulations by the EPA, and prioritizes essential programs.

The bill seeks to “rein in” EPA by rescinding almost $7.8 billion from the $27 billion Greenhouse Gas Reduction Fund created by the Inflation Reduction Act and $1.4 billion in the climate law’s funding for environmental and climate justice programs. The legislation repeals the Biden administration’s WOTUS regulation, prohibits funding for EPA regulatory overreach regarding ozone emissions and steam electric power plants, and agencies suing the Social Cost of Carbon in cost-benefit analyses.  Furthermore, it provides protections for oil and gas, including increasing oil and gas leasing in Central Gulf of Mexico, Alaska, and requires quarterly onshore oil and gas lease sales.

Republicans also propose $995.6 million for the Clean Water and the Drinking Water state revolving funds, $1.77 billion below both the 2023 and White House request levels, according to Democrats. $880.5 million would be set for 767 earmarked projects.

STB Expected to Announce Decision on Reciprocal Switching in August

The U.S. Surface Transportation Board (STB) is anticipated to announce next month whether rail customers will be permitted to use alternate carriers due to poor service from their current carrier. The STB has been evaluating a proposal since July 2016 that would enable captive shippers to switch to alternative railroads in certain circumstances, aiming to provide competitive rail service. The ruling is expected in August, and the proposal considers factors such as the efficiency of the new route, access to new markets, traffic volume, impact on investment and quality of service, and employee welfare. Shippers would not be required to demonstrate anticompetitive conduct as per existing regulations. In addition to reciprocal switching, the STB is also set to make a decision in September on proposed changes to emergency service rules to expedite responses to shipper problems.

Meanwhile, the Senate Commerce, Science and Transportation Chair Maria Cantwell (D-WA) met with Majority Leader Chuck in Congress. Schumer(D-NY) discussed advancing the chamber’s rail safety bill (S. 576) to the floor last week.  It’s not clear if lawmakers will have time to consider it before the August recess, but Sen. J.D. Vance (R-OH), lead Republican on the bill, says that he’s secured enough votes from his party to overcome a 60-vote threshold to fast track the bill.

Comments Close for EPA Proposal 

Over 75 companies, including the Vinyl Institute’s HON Working Group—a coalition of the American Chemistry Council, the VI, and tire and petroleum associations—have posted comments on the EPA’s proposed stricter rules for fenceline emissions at approximately 200 large chemicals and plastics resin plants. The proposal, announced on April 6, aims to reduce discharges for around 80 chemicals and introduce fenceline emission monitoring for six key chemicals, including benzene, 1,3-butadiene, and vinyl chloride, which are key components of plastics.

The proposal has garnered criticism from industry groups who say it is far-reaching and overly complex.  The shared their concerns that it could lead to facility shutdowns and disruptions to crucial supply chains. Furthermore, the proposal has the potential to significantly impact an industry that employs over 300,000 workers at over 2,000 vinyl processors and contributes over $50 billion to the U.S. economy.  The coalition has expressed support for certain proposals by the EPA to enhance exemptions under the Clean Air Act (CAA) for emissions occurring during non-routine operations such as plant startup, shutdown, and malfunctions. They have also provided technical input to assist in the development of these proposals, but also highlighted areas they thought that EPA may be overstepping its authority.

The EPA’s proposal to update emissions standards for resin plants and strengthen flaring rules in chemical plants is a result of a federal court consent decree in 2022. The consent decree was reached to settle lawsuits brought by environmental groups. The legal context of the consent decree is expected to play a significant role in the rulemaking process. Industry groups have raised concerns about the EPA’s legal standing in certain areas and have requested that the agency await the outcome of another federal court case in Washington, D.C., before making assessments on exposure levels of ethylene oxide, which they consider flawed.

Uhlmann One Step Closer to Being Confirmed

The Senate has cleared the way for the confirmation vote of David Uhlmann as head of the EPA’s Office of Enforcement & Compliance Assurance (OECA). The Senate cloture vote to end the debate received a majority of 51-44, with the final vote for Uhlmann’s nomination scheduled for Thursday.  Republican Senators Susan Collins (R-ME) and Lisa Murkowski (R-AK) crossed the aisle to support Uhlmann.  As promised, Sen Joe Manchin (D-WV) voted against moving forward with Uhlmann’s nomination; Manchin had pledged to oppose Biden’s EPA nominees over the agency’s proposed power plant rules to cut GHG emissions.  Uhlmann, a former University of Michigan law professor, has been serving as OECA’s principal deputy administrator and previously headed the Department of Justice’s environmental crimes section. The agency’s criminal enforcement division remains understaffed, falling below the Congress-set minimum quota for agents since 1990.