Legislative Update: Senate Returns as the Debt Ceiling Debate Continues to Loom

Both the House and Senate return and a deal on the debt ceiling remains the top topic of conversation on Capitol Hill. The U.S. reached its $31.4 trillion borrowing limit last week, but the White House and House Republicans remain at an impasse. The House GOP wants a deal that includes spending cuts, but the White House says meeting the country’s spending commitments should be non-negotiable. President Joe Biden and House Speaker Kevin McCarthy have agreed to meet to discuss the issue after the White House said it was open to dialogue with McCarthy on the borrowing cap. A date has yet to be announced. In the meantime, the Treasury Department says its remaining cash and the use of “extraordinary measures” will buy time until at least early June.

House Republicans are reportedly in preliminary talks considering an attempt to buy time for further negotiations on the debt ceiling by passing one or more short-term suspensions of the statutory debt ceiling this summer, possibly coinciding with the end of the fiscal year on Sept. 30.

House Democrats began filling their committees’ assignments this week after Republicans announced their own picks last week.  With Republicans now in control of the House, Rep. Adrian Smith (R-NE) will chair the Ways & Means Trade subcommittee with Rep. Earl Blumenauer (D-OR) as the Ranking Member. The full roster of the Trade Subcommittee can be found here. The Subcommittee on Select Revenue Measures will be chaired by Rep. Mike Kelly (R-PA), with Rep. John Larson (D-CT) as the Ranking Member.  The full roster for the subcommittee can be found here.

House Energy and Commerce Committee Chair Cathy McMorris Rodgers (R-WA) announced the committee’s Republican leadership and subcommittee membership for the 118th Congress, which named Rep. Jeff Duncan (R-SC) as the chair for the Subcommittee on Energy, Climate, and Grid Security and Rep. Bill Johnson (R-OH) as the chair of the renamed Subcommittee on Environment, Manufacturing, and Critical Minerals.  To see the roster for the subcommittee, click here.  Also, Rep. Morgan Griffith (R-VA) will serve as chairman of the Subcommittee on Oversight & Investigations, which could play an important role in the oversight of various Biden administration actions in EPA.  Rep. Frank Pallone (D-NJ) remains the top Democrat of the committee which will now have 23 Democrats, but have yet to name the Subcommittee ranking members.  The roster of both Republicans and Democrats for the full committee can be found here.

House Appropriations Committee Chairwoman Kay Granger (R-TX) also announced some shifts in the committee’s chairmanships.  Rep. Chuck Fleischmann (R-TN) will replace Rep. Mike Simpson (R-ID) as chair of the Energy and Water Development Subcommittee, while Simpson will become chair the Interior and Environment Subcommittee. The House Appropriations Committee’s 27 Democrats will include everyone who was on the panel in the last Congress that returned after the midterm elections, plus Steny Hoyer (D-MD).

In the Senate, Majority Leader Charles E. Schumer (D-NY) and Minority Leader Mitch McConnell, (R-KY) are still negotiating the committee ratios so it remains too early to say when committee assignments will be finalized.

EPA Tentatively Denies Petition to Discard PVC as Hazardous Waste

In a big initial win for the PVC industry, EPA published a notice in the Federal Register on Jan. 12 proposing to reject a rulemaking petition from the Center for Biological Diversity calling for an expansion of hazardous waste regulations for polyvinyl chloride (PVC).  The agency said there is not “sufficient evidence to suggest that listing discarded PVC as a hazardous waste would have a meaningful impact, if any, on reducing exposure to phthalates.”

“The Petition does not present evidence that discarded PVC presents a substantial present or potential hazard to human health or the environment when solid waste is improperly treated, stored, transported or disposed of, or otherwise managed.” The Agency also cited that “the EPA has higher priorities for limited available resources.”

The tentative decision is open for public comment until Feb. 13. EPA is under a court-ordered deadline to take final action by July 2024.  The VI will submit comments. If you would like to submit comments to the Agency, please contact Kevin Koonce.

WOTUS Rule

As expected, a broad coalition of industry groups and Texas state representatives have sued to block the Biden administration’s final rule defining which “Waters of the United States” (WOTUS) are covered by the Clean Water Act (CWA). In separate lawsuits, they claim the rule violates the Constitution, the CWA, and the Administrative Procedure Act (APA). The administration published a pre-publication version of the rule on Dec. 30, noting that it will take effect 60 days after formal publication, which occurred on Jan. 18. The EPA has been heavily criticized for its decision to prematurely release the rule before the Supreme Court has ruled on the Sackett v. EPA case, which will decide when wetlands “adjacent” to jurisdictional waters are subject to the law. The Congressional Western Caucus had asked EPA not to proceed with promulgating the rule before the SCOTUS decides the case.

Texas accuses the agencies of failing to provide adequate notice of how the terms interstate waters, impoundments, tributaries, adjacent wetlands, relatively permanent, seasonally, significant nexus, similarly situated, and significant impact is defined and interpreted. “Accordingly, the Final Rule fails to give fair notice of what conduct is forbidden under the CWA and grants impermissible ad hoc discretion to the Federal Agencies, guaranteeing arbitrary enforcement,” Texas’ complaint says. Both complaints also allege a number of constitutional claims and other violations.

EPA plans to propose a second WOTUS rule in November, after the Supreme Court rules, and finalize it in July 2024, according to the Fall 2022 Unified Agenda, which was released on Jan. 4. However, there remains skepticism about how another rulemaking can provide clarity.

EPA Nominees

The Biden administration announced on Jan. 23 that it is renominating Joe Goffman to lead EPA’s air office and David Uhlmann to head the enforcement office after senators failed to vote on the nominees during the last Congress. The White House did not renominate Carlton Waterhouse, its nominee to lead the waste office, who announced his decision to resign from the agency.   The nominees last year faced multiple holds from some GOP senators, including Sen. Cynthia Lummis (R-WY), who is concerned about a clash between Wyoming and EPA over a coal-fired power plant regional haze rule, and Sen. Bill Cassidy (R-LA), who is protesting EPA’s carbon capture and sequestration policies.  Goffman’s nomination, stalled in committee, where Republicans opposed the nominee for, among other things, his role in developing the Obama administration’s Clean Power Plan that drew rebuke in the West Virginia v. EPA Supreme Court case.

 ACC Challenges Congress and EPA to “Fix TSCA” by September

The American Chemistry Council (ACC) in a new policy paper released on Jan. 17 is calling on the new Congress and EPA to improve the Toxic Substances Control Act (TSCA) program within nine months.  The ACC has presented a nine-point agenda that reiterates some past arguments and key priorities they have pushed since last year while adding a few new proposals.  The ACC continues to emphasize that EPA is overstepping its authority and failing to implement key elements of the revised law.   The agenda includes proposals such as the EPA better justifying its proposed hike in TSCA user fees, fixing flaws in the new chemicals review program and reversing the Biden administration’s “whole chemical” approach to risk determinations on existing chemicals.

The ACC’s “9 in 9 Challenge” is nine actions for Congress and the EPA to implement over the next nine months to get TSCA back on the road to success. In its policy paper, the ACC says that 2023 presents an opportunity for Congress and the EPA to review and renew efforts to improve the implementation of the TSCA program.

The trade group is also calling for the EPA to develop clear and concise guidelines for justifying its chemical testing orders, improve the objectivity of its peer reviews, and for Congress to increase its oversight of the program. The trade group is linking this request to the EPA’s calls for a greatly increased toxic budget, pushing lawmakers to require EPA “to identify the deficiencies in the TSCA program and develop a transparent and comprehensive path forward with quantitative metrics and goals to achieve TSCA’s statutory requirements before Congress increases the program budget.”

The ACC notes that the reformed law directs the EPA to submit a report on the fiscal accountability of the TSCA program to the Senate environment committee and the House Energy and Commerce Committee by the end of the third quarter of 2023.