Updates from U.S. Environmental Protection Agency (EPA) Region V Meeting

October 30, 2014 by
On October 15th, 2014, officials from U.S. EPA Region V and the Indiana Department of Environmental Management (IDEM) met with industry, association and other interested parties to discuss the priorities and focus for each agency in 2015.  The following information summarizes what was discussed at this meeting in the areas of Enforcement, Compliance, Air and Water.
Enforcement.  Most of the EPA's enforcement priorities will remain the same, heading into 2015. The primary concerns for Region V include combined sewer overflow compliance and reducing air pollution from coal-fired utilities and toxic air pollutant sources (see a full copy of the priorities for 2014-2016 here).  From a state perspective, the enforcement priorities for IDEM will continue to focus generally on parties that blatantly disregard their regulatory obligations.  IDEM will continue to address violations through non-enforcement means, such as violation letters, reserving formal enforcement for more egregious non-compliance concerns. 
Compliance.  At the meeting, each agency was offered an opportunity to discuss compliance priorities.  Solid and hazardous waste issues will continue to be a focus, with rules expected to be finalized soon from the EPA concerning 1) coal combustion residual waste (comments accepted through November 19, 2014), 2) coal ash waste (with efforts being made to meet the December 19, 2014 deadline) and 3) pharmaceutical waste (final rule should be published in December).  Always ready to tackle present day issues, IDEM has been reviewing medical waste treatment facilities' potential treatment of Ebola waste, should any cases arise in the State.  IDEM is also reviewing issues related to biomass and other alternative uses for waste streams as they relate to the definition of solid waste processing permit requirements.  Superfund clean ups continue to occur, although both agencies acknowledged funding challenges for many of these that are remaining since most are orphan sites.  It was clear from the floor time used by each respective agency that the main issues on the minds of regulators and regulated community alike are air and water.
Air.  The two main air topics that received the most discussion were the attainment designations for particulate matter, proposed ozone standards and the proposed rule for carbon emission reductions.  EPA stood by its determination that there are areas within the State that are non-attainment for particulate matter and sulfur dioxide.  IDEM continues to disagree with EPA on certain matters. IDEM made it no secret that it believes areas designated by EPA as non-attainment for particulate matter are in fact in attainment, and IDEM hopes data, that should be available in December, will demonstrate this fact.   The EPA is still working on a proposed ozone standard, which it hopes to have in place by December, with the goal of finalizing the new standard in 2015 and making attainment designations by 2017.  IDEM also voiced concerns over the ozone standard U.S. EPA is considering as being far too stringent to be reasonably met. 
Carbon emission reductions continue to be a sensitive topic for the agencies and again a source of some contention.  IDEM disagrees on the manner in which U.S. EPA is attempting to regulate carbon emissions from existing coal-fired utilities in the proposed Clean Power Plan rule.  Not to be dissuaded, EPA was confident, that in spite of already receiving over a million comments to the proposed rule, and having extended the comment period through December 1, 2014 to allow for additional comments, a final rule would be issued by June 1, 2015.   EPA continues to issue notices regarding the rule, such as the one issued October 28, 2014 seeking additional input on issues, such as emission reduction compliance trajectories created by the interim goal for 2020 to 2029, certain aspects of the building block methodology, and the way state-specific carbon dioxide (CO2) goals are calculated.  See the full notice. Stay tuned to see how this develops.
Water.  In terms of water, there is a degree of conflict over agency positions here as well.  While EPA was complimentary on IDEM's ability to reduce the NPDES permit backlogs that had plagued the agency years ago, EPA and IDEM continue to work to address deficiencies EPA identified in IDEM's general NPDES permit program.  IDEM is working on a process for the development of general NPDES permits that will allow for renewal options, has provided a draft to EPA and various interest groups, and is awaiting feedback before final development.  And while EPA promised to elaborate on its position concerning the proposed "waters of the United States" rule, the topic was not addressed at the meeting in any greater detail.  This is yet another area, however, where IDEM and EPA have differing opinions as to how effective the proposed rule will be in clearing up regulatory ambiguity as to what is and is not a “waters” of the United States.  The general consensus from IDEM and the regulated community is that the proposed rule, as currently drafted, does little to clarify what is a "significant nexus" as it relates to defining what waters should be regulated.  The public comment period for this rule has also been extended through November 14, 2014.  This issue has also received a great deal of attention and comment over the past several years, and it is still uncertain whether the final rule will provide clarity to these murky water regulations.
It remains clear that the regulatory framework for environmental matters will continue to evolve and opportunities exist to make your voice heard through the public comment process.  Ice Miller LLP's environmental practice group can help you navigate the changing regulatory tides and the impact they may have on your business. 
Jennifer Andres is an attorney at Ice Miller LLP, concentrating her practice in the areas of environmental and corporate law. Her environmental practice consists of assisting clients with regulatory matters at the state and federal level regarding compliance and enforcement matters, permitting issues and remedial activities. Please contact Jennifer at Jennifer.Andres@icemiller.com

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