28 ELR 10721 | Environmental Law Reporter | copyright © 1998 | All rights reserved

The U.S. Environmental Protection Agency: Fiscal Year 1998 in Review

Rachel L. Schowalter

Editors' Summary: Every year, EPA faces the burdensome task of issuing hundreds of rules and regulations. From air and water quality issues to hazardous and solid waste management, from environmental justice to the protection of natural resources, no aspect of environmental law goes untouched by EPA. Given the highly regulated nature of environmental law and policy, the Agency's actions are often controversial. The fiscal year that ended September 30, 1998, was no different. This Comment reviews the most significant rules, proposed rules, and guidance documents the Agency issued during fiscal year 1998. Looking at EPA's major accomplishments over the past year helps identify some of the work the Agency must focus on in fiscal year 1999 and in the years to come.

Rachel Schowalter is an Associate Editor of ELR — The Environmental Law Reporter. She received a J.D. from the University of Maryland School of Law in 1997 and received her undergraduate degree in journalism and mass communications from the University of Colorado, Boulder, in 1992.

[28 ELR 10721]

Every year, the U.S. Environmental Protection Agency (EPA) is faced with the difficult task of issuing hundreds of rules and regulations. Some of these actions are mandated by deadlines set by statute. Others are required pursuant to court order. And many are controversial in light of differing industry, state, and environmental issues. The fiscal year that ended September 30, 1998, was no different.

While there were numerous actions from which to choose, many worthy of articles all their own, this Comment addresses the most significant1 rules, proposed rules, and guidance documents that EPA issued during fiscal year 1998. Looking at EPA's accomplishments over the past year should provide a useful backdrop for focusing on what the Agency must tackle during fiscal year 1999 and in the years to come.

Actions Responding to the Revised Ozone and Particulate Matter National Ambient Air Quality Standards

EPA spent much of fiscal year 1998 issuing rules and guidance to implement the new standards for ozone and particulate matter (PM), which were revised in July 1997 under the Clean Air Act (CAA).2 For ozone, the national ambient air [28 ELR 10722] quality standards (NAAQS) was revised by adding an 8-hour averaging period, and the level of the standard was changed from 0.12 parts per million (ppm) to 0.08 ppm.3 For the PM NAAQS, EPA added a new 24-hour and an annual NAAQS for PM 2.5 microns in diameter or less (PM[2.5]).4 EPA also revised the form for the preexisting 24-hour NAAQS for PM 10 microns in diameter or less (PM[10]), but maintained the level for the PM[10] standard.5

The Nitrogen Oxide State Implementation Plan Call

In response to concerns that northeastern states would not attain the new ozone and PM NAAQS, EPA issued a strategy designed to decrease the transport of ozone across state boundaries in the eastern half of the United States by reducing emissions of nitrogen oxide (NOx).6 NOx is a precursor to ozone formation and smog, and smog is one of the most pervasive air pollutants in the United States. It aggravates asthma, reduces lung capacity, and makes plants and crops more susceptible to pests and disease.7 In addition to decreasing smog, cutting NOx emissions helps reduce problems with acid rain, contaminated water bodies, airborne particles, regional haze, and global warming.8

The rule, referred to as the NOx SIP call because it calls on each state to amend its state implementation plan (SIP), requires 22 states in the eastern half of the United States and the District of Columbia to submit SIP measures ensuring that emission reductions are achieved to mitigate transport of ozone pollution and NOx emissions across state boundaries.9 The plan builds on recommendations from the Ozone Transport Assessment Group (OTAG), which is a group of 37 eastern states that used computer modeling to determine that NOx emissions from southern and midwestern states were contributing to ozone problems in the northeastern and mid-Atlantic region.10 The rule assigns a summertime NOx emissions limit or budget for each affected state,11 and EPA expects the rule to reduce total summertime NOx emissions by about 28 percent (1.2 million tons) beginning in the year 2003.12 This is roughly equivalent to getting 166 million cars off the road.13 The rule does not prescribe how states should reduce emissions to meet their NOx budget; however, utilities and large nonutility point sources would be one of the most likely targets.14 The affected states must submit their plans to EPA by September 1999; must implement controls to achieve the NOx budgets by May 1, 2003; and must demonstrate compliance with their budgets by September 2007.15 The rule requires NOx emissions in these areas to be cut by 1.6 million tons per ozone season. In order to provide flexibility to affected sources, the rule contains provisions to provide emission credits for utilities or other sources that demonstrate an inability to achieve the reductions in a timely fashion.16

The NOx SIP call also includes a voluntary model NOx budget trading program for electric utilities and large industrial boilers and turbines.17 This cap-and-trade program will allow states to achieve over 90 percent of the emissions reductions required by the rule.18 This program will be jointly administered by EPA and participating states. Facilities in states that adopt the cap-and-trade program and reduce NOx emissions in greater amounts than required will be able to sell their excess NOx emission allowances to those facilities in the program that cannot reduce emissions as quickly or cost effectively.19 Moreover, it provides temporary relief to those utilities and boilers that are unable to meet the reduction goals by 2003.20

This rule will certainly be subject to future challenges. Before the rule's approval, midwestern states and utilities, both affected by the rule, argued that the NOx SIP call would be too costly and could force utilities to switch from coal to natural gas-fired boilers.21 They claimed that this would lead to significant economic losses for coal suppliers. They also argued that the stringent requirements and short compliance time lines could force companies to pull their plants off-line to retrofit them with new controls, which could lead to power supply shortages.22 After the final rule was issued, critics argued that it was "virtually unchanged" from the proposal and that it still "threatens the reliability of electricity suppliers in the eastern part of the country."23 Other critics argued that the rule provides states with too little time to [28 ELR 10723] investigate and develop plans for cutting NOx emissions.24 And an analysis conducted by the Utility Air Regulatory Group (UARG) concluded that the Eastern Central Reliability Region, which includes 6 of the 22 states affected by the rule, would experience close to 500 hours of rolling blackouts during each year of pollution retrofits.25

Despite industry and state arguments that the rule is unnecessary and overly burdensome, several groups praised it.26 The Northeast States for Coordinated Air Use Management, a group of environment commissioners, determined that if only the then-existing NOx controls were implemented in midwestern states, northeastern states would have to pay an extra $ 1.4 to $ 3.9 billion to implement additional pollution control measures in order to offset ozone that is transported into the region.27 In addition, a national utility trade association argued that the rule's cap-and-trade program would create a competitive marketplace that should act as an antidote to any potential power reliability problems that EPA's NOx SIP call might trigger.28 And a northeastern utility said that the UARG analysis and claims by midwestern and southern governors that the rule would pose a significant threat to reliability were nothing more than a "smoke screen" to scare EPA and the public.29

CAA § 126 Petitions

In a related action, EPA issued a notice of proposed rule-making on September 24, 1998, announcing its proposed findings in response to eight CAA § 126 petitions that were filed with the Agency in August 1996.30 This action is also designed to reduce NOx emissions that travel across the eastern U.S. and contribute to regional ozone problems. The petitioning states31 requested EPA to establish emissions limitations and compliance schedules for groups of stationary sources that may also be subject to controls by states and the District of Columbia in response to EPA's NOx SIP call.32 CAA § 126 authorizes states to petition EPA to address air pollution transported from upwind states.

The NOx SIP call overlaps with the § 126 petition process. Under the proposal, if states affected by the NOx SIP call submit SIPs for EPA review, and EPA proposes to approve those plans, the Agency may delay taking any necessary final action on the § 126 petitions until May 1, 2000.33 However, if EPA does not propose to approve the plans, or does not grant final approval, the petitions determined to have technical merit will automatically be granted for sources covered by EPA's § 126 finding.34 Approval of the petition means that the affected sources must reduce those NOx emissions that significantly contribute to the interstate transport of ozone.35

A midwestern utilities organization attempted to block the § 126 petitions, but its suit was struck down.36 The court determined that the suit was not yet ripe for review, as the petitions had not yet been granted to any of the states.37 EPA is expected to issue a final decision on the petitions by April 30, 1999.38 However, the Agency proposed to defer issuing a final decision until after states have submitted their SIPs in response to the NOx SIP call.39 Regardless of the Agency's final decision, suits are likely to follow.

Guidance and Policy Documents

EPA released several guidance documents to aid implementation of the new PM and ozone standards. EPA's Guidance for Implementing the One-Hour Ozone and Pre-Existing PM[10] NAAQS was issued on December 12, 1997.40 It provides guidance for states to use in implementing the CAA requirements for ground-level ozone and PM during the transition period between implementation of the old and new standards. It identifies the sections of the CAA that govern implementation of the one-hour ozone and preexisting PM standards that continue to be applicable, it identifies the process for revoking applicability of those standards, and it identifies the details of specific CAA requirements for continued progress in reducing emissions. According to the guidance, the CAA provisions that govern implementation of the one-hour ozone standard will continue to apply to all areas subject to those standards until EPA determines that the areas' air quality meets the one-hour standard. At that time, the one-hour standard will be revoked. Similarly, the CAA provisions for implementing the preexisting PM standards will continue to apply in areas that do not meet the standard until the standard is revoked. Once the standards are revoked, the new ozone and PM standards will apply.

In April, the Agency issued guidance to states urging them to adopt strategies for mitigating the impact of the new air quality standards on small businesses.41 According to the guidance, EPA believes that there are a variety of ways [28 ELR 10724] states can mitigate the potential adverse effects small entities might experience due to the new standards. For example, EPA suggests that states could choose to exempt less polluting categories of small sources or apply less stringent requirements to small sources.42 States could also extend the effective date for control requirements for small sources as long as such extensions don't conflict with statutory and regulatory requirements.43 Applying the most cost effective control technologies first might also lessen burdens on small businesses, which tend to be the least cost effective to control, according to the guidance.44 The guidance further encourages the use of innovative approaches to air quality control, such as cap-and-trade programs, that could reduce control costs for small sources.45

The Agency issued its Early Planning Guidance for the Revised Ozone/PM/Regional Haze Implementation on May 5, 1998,46 and then reissued it on June 16, 1998,47 in order to reflect new legislation set forth in the Transportation Equity Act for the 21st Century.48 This guidance provides that states must submit recommendations for designations (attainment, nonattainment, and unclassifiable) for the revised ozone and PM standards. The guidance also explains the process EPA plans to follow for ensuring that general authority and infrastructure SIPs are adequate for the revised standards.49

In July, EPA adopted a new policy that would give states and localities more time to meet air quality standards for ozone if their nonattainment problems stem from emissions of ozone precursors transported from upwind sources.50 The policy provides flexibility in setting the target attainment date if the area's ability to meet the one-hour ground-level ozone standard is affected by transport of pollutants from an upwind area. However, it requires that areas adopt all measures necessary at the local level to reduce pollutants contributing to ground-level ozone. These measures must be included in an attainment plan submitted for EPA's approval. This policy applies to all "moderate" and "serious" nonattainment areas. The attainment dates for these areas are aligned with the deadlines placed on upwind states set forth in EPA's NOx SIP call.51

In August, EPA proposed its Implementation Guidance for the Revised Ozone and PM NAAQS and the Regional Haze Program.52 This guidance lays out a scheme for classifying areas that do not meet the ozone or PM standards. It also clarifies the requirement that states adopt reasonably available control measures in ozone and PM SIPs, it provides details on the SIP requirements for ozone transitional nonattainment areas and PM[10] nonattainment areas, and it provides initial guidance on the reasonable further progress requirement for ozone nonattainment areas designated as traditional. The final version of this implementation guidance is expected in December 1998.

Specifically, the guidance proposes to separate areas of the country that violate the new ozone rule into three categories: transitional, international transport areas, and traditional.53 Transitional areas are areas that currently meet the existing one-hour standard but are not expected to meet the new eight-hour standard once the attainment designations are made.54 Most of these areas are expected to fall in the 22-state region for which EPA developed its final rule designed to mitigate ozone transport. The implementation plan for transitional areas draws heavily from EPA's NOx SIP call, which was only in the proposed stages at the time of the guidance's issuance. EPA expects that the NOx SIP call will cause most states in the transitional areas to reach attainment. Thus, EPA proposed to allow these states to submit a single plan for meeting both the requirements of the SIP call and the new ozone standard. EPA anticipates that the attainment date for these areas will be no later than December 31, 2003.

The second category, international transport areas, are areas that fail to meet the standards because of emissions originating outside of U.S. boundaries.55 These areas must demonstrate that but for the international emissions, they would attain the eight-hour ozone standard. If the areas satisfy this requirement, they are deemed to have met CAA control technology requirements for ozone, which include the use of reasonably available control methods and reasonably available control technology. EPA anticipates an attainment date for these areas of no later than December 31, 2005.

The traditional nonattainment category covers the remaining areas.56 These areas will be required to submit their plans demonstrating attainment with the eight-hour ozone standard by July 2003. EPA expects that the attainment date [28 ELR 10725] for areas violating only the eight-hour standard will be December 31, 2005. For those areas that violate both the eight-hour and the one-hour standards, the attainment date is expected to be no later than December 31, 2008, or July 18, 2010, depending on the area's one-hour standard classification.

The guidance does not set forth a classification scheme for the new PM[25] standard because the Agency believes it is premature to do so until more air quality data becomes available.57 However, it does state that EPA will use the same classification scheme for the revised PM[10] standard as set in the CAA Amendments of 1990.58 All area designations will be made by July 2000, and all initial nonattainment areas will be classified as moderate. The attainment date for moderate areas will be no later than December 31, 2006. Moderate areas can be reclassified as serious, however, if EPA determines that they cannot practicably attain the air quality standard or if they fail to attain the standards. If an area becomes serious, it must submit a plan delineating the best available control measures as well as a plan demonstrating attainment. Areas classified as serious must reach attainment by December 31, 2010.

Agency Action Under the Safe Drinking Water Act Amendments of 1996

EPA also spent much of fiscal year 1998 implementing rules mandated by the Safe Drinking Water Act (SDWA) Amendments of 1996.59 In August, EPA issued a rule requiring water suppliers to send drinking water quality reports to their customers.60 These reports, commonly referred to as "consumer confidence reports," were the "centerpiece" of the right-to-know provisions in the SDWA Amendments.61

Under the rule, water systems serving more than 10,000 people must mail the reports to their customers on an annual basis. The first reports will be sent out between April and October 1999, and each July 1 thereafter. In addition, large water systems — those serving 100,000 or more people — must also post their reports on the Internet to make the information easily accessible. The rule will affect about 55,000 water systems serving approximately 240 million people.62

Although suppliers may provide additional information, the reports must identify the drinking water source, its susceptibility to contamination, the level of contaminants found in local drinking water, and the likely source of those contaminants.63 The reports must also include EPA's maximum contaminant level for any contaminant found in the water source for comparison purposes, they must identify the potential health effects of any detected contaminant that violates EPA's health standard, and they must provide the water system's compliance with other drinking water related rules.64 In addition, the reports must contain an educational statement for vulnerable populations about avoiding Cryptosporidium and must contain educational information on nitrate, arsenic, or lead in areas where these contaminants are detected above 50 percent of EPA's standard.65 Phone numbers for obtaining additional information must also be included in the reports.

The rule is generally supported by environmentalists and water suppliers alike, however, some environmental groups have claimed that the rule should have gone further.66 One organization claimed that "some leaky loopholes in the law could allow water companies to expose pregnant women, infants, seniors, and others to unacceptable risks of getting sick from a simple glass of water."67 The group noted that because water suppliers need only identify contaminants that are currently regulated or required to be monitored by EPA, consumers will not be informed about other contaminants, such as gasoline additives, industrial chemicals, and certain pesticides. In addition, the rule only requires public notification if the minimum federal standard for a contaminant is violated, as there is no requirement to disclose the potential adverse health effects of all contaminants found in the water.68

EPA also published the final drinking water contaminant candidate list, which includes 50 chemical and 10 microbiological contaminants and contaminant groups.69 The chemicals and contaminants constitute the Agency's priorities for developing future drinking water regulations and guidance. Contaminants on the list are those that occur or are anticipated to occur in public water systems, and they will be considered for a variety of regulatory options, including formal rulemakings, health advisories, guidance, and research. Of the listed contaminants, 20 were given "regulatory determination priorities" and 40 were given combinations of "research priorities" and "occurrence priorities."70 EPA must make regulatory determinations on at least five of the contaminants by 2001. Five more determinations will be made every five years thereafter. Contaminants listed in the regulatory category will be given determinations first.

EPA also revised the SDWA variances and exemptions regulations.71 The revision is intended to provide regulatory relief to all public water systems, especially small systems. Under the revision, variances may be granted to those systems that cannot comply with the national primary drinking standards. However, water systems may only receive a variance from the federal requirements if they install the best technology, treatment technique, or other means that EPA finds available. The rule also includes procedures and conditions under which EPA or a primacy state or tribe may issue [28 ELR 10726] small system variances to public water systems serving less than 10,000 persons. Exemptions allow a system with compelling circumstances an extension of time before the system must comply with the Act and are limited to a three-year extension period after the otherwise applicable compliance date. The new rule, however, provides for extensions up to a total of six years for small systems under certain circumstances.

In response to the SDWA Amendments' broadening of the "public water system" definition, EPA issued a guidance document explaining how the Agency will implement the new definition.72 Before the SDWA Amendments, the Act defined the term "public water system" to include only piped water systems. The amendments broadened the term to include systems providing water for human consumption that deliver this water by "constructed conveyances," such as irrigation canals. The guidance document, entitled Definition of a Public Water System in SDWA § 1401(4) as Amended by the 1996 SDWA Amendments, interprets the new statutory language and provides suggested implementation to EPA regions and states with primary enforcement responsibility.

EPA also issued Water Conservation Plan Guidelines, to encourage conservation by water systems, particularly small systems.73 The guidelines, which are voluntary, allow states to require water systems to submit a water conservation plan consistent with the guidelines as a condition of receiving a loan from a state drinking water loan fund. In addition, the Agency issued small system compliance technology lists that provide information to small water systems on alternative water treatments that they can use to provide safe drinking water.74 Furthermore, the Agency made available various guidance and supporting documents that pertain to small system compliance technology.75 And the Agency issued its Guidance on Implementing the Capacity Development Provisions ofthe SDWA Amendments of 1996.76 This guidance was created to help states implement strategies to assist their water systems in acquiring and maintaining the technical, managerial, and financial capacity they need to provide safe drinking water. EPA also issued two information documents related to capacity development, Information for States on Implementing the Capacity Development Provisions of the SDWA Amendments of 1996 and Information for the Public on Participating in Preparing State Capacity Development Strategies.77 Last, EPA and the Centers for Disease Control and Prevention agreed to conduct pilot waterborne disease occurrence studies and to develop a national estimate of waterborne disease occurrence as required under SDWA § 1458.78 The Agency issued a document discussing the studies, which includes descriptions of planned and ongoing epidemiological studies and discusses public involvement in developing an approval for estimating the national level of waterborne disease occurrence.

EPA's Environmental Justice Guidance

In the past, complaints filed with EPA under Title VI of the Civil Rights Act of 196479 typically concerned discrimination with respect to access to public water and sewerage systems or in employment practices.80 Since September 1993, however, almost all of the Title VI complaints filed with EPA addressed state or local permit decisions.81 Thus, EPA needed an updated guidance in order to "accommodate the increasing number of Title VI complaints that allege discrimination in the environmental permitting context."82 On February 5, 1998, EPA issued interim guidance addressing such environmental justice concerns.83 The document provides guidance to EPA's Office of Civil Rights when processing Title VI complaints that allege discriminatory effects resulting from the issuance of pollution control permits by state and local governmental agencies that receive EPA funding.84

Title VI prohibits recipients of federal financial assistance from discriminating on the basis of race, color, or national origin. When EPA grants funding to a state or local agency, all of the agency's programs must comply with EPA's Title VI regulations, including those programs and activities that are not EPA-funded, unless expressly exempted from Title VI by federal statute.85 And if EPA determines that a recipient's program is discriminatory and will not come into compliance voluntarily, the Agency must initiate procedures to suspend, deny, annul, or terminate the funding.86

The guidance provides the framework for following through on Title VI complaints. After EPA accepts a complaint, the Agency must conduct a factual investigation to determine whether the permit will create a disparate impact or add to an already existing disparate impact on minorities. The guidance sets forth five basic steps for determining whether a disparate impact exists: identifying the affected population; determining the racial and ethnic composition of the affected population; identifying what other permitted facilities should be included in the analysis and determining the racial or ethnic composition of the populations affected by those permits; conducting the disparate impact analysis; and determining the significance of the disparity by using arithmetic or statistical analyses.87

[28 ELR 10727]

Once the Agency makes an initial finding of disparate impact, the permitting agency will be notified and given the opportunity to rebut EPA's finding, propose steps it will take to mitigate the disparity, or demonstrate that it has "a substantial, legitimate interest that justifies the decision to proceed with the permit notwithstanding the disparate impact."88 Even where a substantial, legitimate justification is given, however, EPA will consider whether there is an alternative that would satisfy the state interest while eliminating or mitigating the discriminatory impact.89

Failing to respond to a notification could eventually lead to the denial, annulment, suspension, or termination of EPA assistance. The Agency may even refer the matter to the U.S. Department of Justice for litigation. Throughout the entire period, however, EPA encourages the use of informal resolution if practicable.

The guidance does not exempt permit modifications from this policy. However, the guidance provides that certain Title VI complaints — those based on modifications that reduce adverse impacts and improve the environmental operation of the facility, administrative modifications such as company name changes, or otherwise beneficial modifications that are neutral in terms of their impact on human health or the environment — are likely to be dismissed.90 Permit modifications that result in a net increase in pollution impacts, however, may provide a basis for an adverse disparate impact finding. Thus, EPA will not reject or dismiss complaints associated with these types of modifications without first examining the nature of the permit change. But the complaint must allege adverse impacts specifically associated with the modification.91 Permit renewals generally will be treated as if they were applications for new facility permits under the proposed guidance.92

Since its proposal, the guidance has been severely criticized by states and industry.93 The Environmental Council of the States (ECOS), an organization of environmental officials from 49 states, the District of Columbia, and two U.S. territories, asked EPA to withdraw the interim guidance.94 They argued that EPA's policy limits state authority over issuing permits, and it may complicate redevelopment of urban areas.95 In August, ECOS drafted an alternative to EPA's guidance, Draft Principles of Environmental Justice. It provides guidance to states for developing environmental justice programs while advising EPA how it should revise its policy.96 It seeks to ensure that state agencies participate in the decisionmaking process for environmental justice issues. It also asks that environmental department decisions be deemed administratively final once the permitting process is completed so that neither EPA nor private parties can force states to withdraw a permit once it is granted.97

Another major criticism of EPA's guidance is that the Agency failed to set up a standard method for determining whether a permit causes a disproportionate impact on minorities.98 In August, however, EPA described the methodology it plans to use for disproportionate impact analysis in a Federal Register notice.99 The Basic Relative Burden Analysis method and the Enhanced Relative Burden Analysis method determine the amount of air emissions people are exposed to in the area surrounding the facility. They can be used to find the average "burden" for all people within a particular subgroup, and compare those results with persons within other subgroups.100 The Enhanced method is more accurate, however, because it also accounts for wind and weather conditions.101 Another methodology proposed by EPA is the Cumulative Outdoor Air Toxics Concentration and Exposure Methodology. This tool analyzes outdoor concentrations over large areas of hazardous air pollutants from point and mobile sources and combinations of sources.102 The Science Advisory Board's Integrated Human Exposure Committee generally approved these three methods, but made several recommendations for their refinement.103

Added to these criticisms is the U.S. Supreme Court's decision in Chester Residents Concerned for Quality Living v. Seif.104 EPA's guidance allows individuals to "file a private right of action in court to enforce the nondiscrimination requirements in Title VI or EPA's implementing regulations without exhausting administrative remedies."105 Thus, the policy adopts the Third Circuit's decision set forth in Chester Residents106 as nationwide policy. The Supreme Court, however, vacated the Third Circuit decision as moot because the underlying permit had been revoked. As a result, whether a private right-of-action exists to challenge state-issued permits under the Civil Rights Act is untested in court. Although there is no direct connection between EPA's guidance and the Chester Residents case, the Court's decision does add to the pressure on EPA to revise the guidance [28 ELR 10728] by defining when and how a state or local environmental decision constitutes a discriminatory impact under Title VI.107 According to an EPA spokesperson, however, the ruling will have no impact on EPA's final version of the guidance.108 It remains to be seen how EPA will incorporate the other criticisms into the final guidance.

Land Disposal Restrictions

EPA's land disposal restrictions (LDR) program under the Resource Conservation and Recovery Act (RCRA)109 regulates the disposal of hazardous waste on land.110 A major part of this program is the establishment of treatment standards for hazardous wastes before they can be disposed of in hazardous waste units.111 The treatment standards require either that the waste be treated by a certain technology, or that it be treated by any technology as long as the concentration of hazardous constituents in the waste is below a particular level.112 The universal treatment standards (UTS) specify the concentration for hazardous constituents.113

On May 26, 1998, EPA issued its second Phase IV treatment standards for toxicity characteristic metal and mineral processing wastes.114 Under the rule, metal-bearing hazardous wastes that exhibit the toxicity characteristic due to high toxic metal content (D004 to D011 wastes) will have to meet more stringent treatment standards before being disposed of in the land.115 EPA based the standards on the best technologies available to treat these or similar wastes. The UTS for 12 constituent wastes was also revised to better reflect the entire universe of wastes that are subject to the treatment standards.116 Thus, listed and characteristic wastes may have to comply with new UTS levels.117

Under the rule, the nonwastewater form of metal hazardous wastes, except for arsenic, must be treated to more stringent UTS levels for the toxicity characteristic metal constituent as well as for all other underlying hazardous constituents in the waste levels that exceed their UTS levels when the waste is generated.118 The underlying hazardous constituents in the wastewater form of D004 to D011 hazardous wastes must also meet the UTS levels.119

The rule also established alternative LDR treatment standards for soils contaminated with hazardous waste or hazardous constituents.120 Contaminated soils will need to meet LDR treatment levels 10 times the UTS or achieve a 90 percent reduction in the levels of hazardous constituents present in the soil. If the soil exhibits the characteristic of ignitability, corrosivity, or reactivity, the characteristic must be removed before land disposal. For soils that exhibit a characteristic, particularly the toxicity characteristic, the alternative may be quite helpful.121 The normal standard requires all underlying hazardous constituents in characteristically hazardous soil to meet UTS levels, whereas the alternate standard requires treatment only of underlying hazardous constituents above 10 times the UTS, and they need only be reduced by 90 percent or 10 times the UTS.122 But for soil contaminated with listed hazardous waste, the alternative standard may actually be more stringent.123 The normal rule requires treatment only for constituents found in the listed hazardous waste, not for all underlying hazardous constituents. The alternative, however, requires all underlying hazardous constituents that are greater than 10 times their UTS levels when the soil is removed from the ground to be reduced by 90 percent or 10 times the UTS.

In addition, the rule establishes a risk-based variance process for contaminated soils that might not otherwise meet the soil treatment standards.124 Under the variance, a riskbased LDR treatment standard would be established for the particular contaminated soil that would be less stringent than the otherwise applicable technology-based standard. The variance standard must generally achieve protection that equates to a risk level of 10<-4> to 10<-6> for carcinogens and a no-effect level for noncarcinogens.

The Agency also modified its rules defining which secondary materials from mineral processing are considered to be wastes and potentially subject to the LDRs.125 Materials that are legitimately recycled and kept off the land before recycling are conditionally exempted. This action was taken because the Agency wanted to promote the safe recycling of mineral processing secondary materials by reducing the regulatory obstacles to recycling. The rule retains the toxicity characteristic leaching procedure as the testfor identifying the toxicity characteristic for mineral processing [28 ELR 10729] wastes. The rule also excluded from the definition of solid waste certain shredded circuit boards in recycling operations,126 as well as certain materials reused in wood preserving operations.127

Municipal Solid Waste Comprehensive Environmental Response, Compensation, and Liability Act Settlement Policy

On February 18, 1998, EPA issued a national settlement policy under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)128 for municipal co-disposal landfill sites that supplements its 1989 Interim Policy on CERCLA Settlements Involving Municipalities and Municipal Wastes.129 In issuing the policy, EPA sought to create a fair, consistent, and efficient Superfund settlement policy that would reduce transaction costs and encourage global settlements at national priority list (NPL) sites. Approximately 23 percent of NPL sites accept both municipal and industrial wastes containing hazardous substances.130

The policy provides that EPA will generally continue not to identify generators and transporters of municipal solid waste as potentially responsible parties at NPL sites. Should they wish to settle and receive protection from third-party lawsuits, however, EPA will apply a unit cost per ton of $ 5.30 to the amount of municipal solid waste contributed by the party. EPA will also apply its policy of settling with generators and transporters who contributed de micromis volumes of municipal solid waste for zero dollars. Further, EPA will settle with municipal owners and operators of waste disposal sites for between 20 to 30 percent of total site cleanup costs.

The policy also eases a requirement calling for the segregation of municipal and nonmunicipal waste.131 Under the policy's proposal, transporters had to demonstrate that their municipal waste was segregated from their nonmunicipal waste.132 The final policy does not include this requirement, but if the waste is not segregated, EPA still wants to know how much nonmunicipal waste is in the material.133

Industry groups filed suit against EPA seeking to strike down the Agency's guidance.134 They argue that the policy allows municipal solid waste generators and transporters to avoid CERCLA litigation for a predetermined fixed price that bears no realistic relationship to actual cleanup costs and that it makes the Superfund program "more unfair than it already is."135 EPA responded by arguing that the challenge is not ripe for review because the policy cannot be viewed as final agency action since it has not yet been applied to these groups.136

EPA's Pulp and Paper Cluster Rule

Under its Federal Water Pollution Control Act (FWPCA)137 and CAA authority, EPA issued a combined air and water cluster rule for the pulp and paper industry to protect human health and the environment by reducing toxic pollutant releases to the air and water.138 This action is noteworthy because it is the first time that the Agency issued an integrated, multimedia regulation to control the release of pollutants to air and water from one industry.139 According to EPA, it allows the industry to select the best combination of pollution prevention and control technologies that provide the greatest protection to human health and the environment.

The air emission standards require new and existing pulp and paper mills to meet air standards to reduce emissions of toxic air pollutants occurring at various points throughout the mills.140 Specifically, the rule requires mills to capture and treat toxic air pollutant emissions that occur during the cooking, washing, and bleaching stages of the pulp manufacturing process. Existing and new major sources within the pulp and paper production source category must control emissions using the maximum achievable control technology to control hazardous air pollutants. Pollutants covered by this rule include methanol, chlorinated compounds, formaldehyde, benzene, and xylene. It is expected to reduce baseline emissions of hazardous air pollutants by 65 percent, or 139,000 megagrams per year.

The water effluent limitations guidelines and standards require new and existing facilities in the bleached papergrade kraft and soda subcategory and the bleached paper-grade sulfite subcategory to meet standards to reduce discharges of toxic and nonconventional pollutants.141 EPA set effluent limits for toxic pollutants in the wastewater discharged during the bleaching process and in the final discharge from the mills. The limits are based on substituting chlorine dioxide for chlorine in the bleaching process. Mills in affected subcategories must also follow best management practices to prevent spills of black liquor into the wastewater sewers.

The cluster rule also includes new analytical methods for 12 chlorinated phenolic pollutants and for adsorbable organic halides.142 Samples of air emissions and water discharges [28 ELR 10730] from each mill must be tested using the laboratory methods included in the rule. The new methods are intended to enable more timely and accurate measurements of releases of these pollutants to the environment and will be used to ensure compliance with air and water permit limits.

Some of the air emission requirements will result in a reduction in both toxic air and wastewater pollutants. And some of the technologies used to satisfy water limits will reduce air emissions. As such, the cluster rule should achieve greater pollution prevention and process optimization than either regulation could have achieved alone.143

The Compliance Air Monitoring Rule

The compliance air monitoring (CAM) rule, which was issued on October 22, 1997, affects major sources of air pollution that are required to obtain CAA Title V permits.144 Signed by EPA Administrator Carol M. Browner one day before a court-ordered deadline for its completion,145 the rule defines what kind of operation and maintenance a facility must conduct to ensure that it is in compliance with its emission limits.

The rule requires companies to develop CAM plans that describe how certain kinds of equipment will be operated, it sets forth criteria that sources must follow in monitoring the operation and maintenance of their monitoring equipment, and it requires sources to develop operating parameters within which the equipment must function to ensure proper compliance with underlying emissions standards.146 It further requires sources to report excursions from these parameters. It applies only to major sources that use control equipment to meet emission limits. Most sources that are already subject to monitoring requirements in other CAA regulations are also exempt from the CAM rule. And sources subject to permit terms that require continuance compliance determinations are not covered by the rule.

As with most EPA rules, however, the rule was not without controversy. One of the major issues that surfaced during the rule's development concerned the Agency's implementation schedule.147 Because the rule requires the CAM plans to be incorporated into operating permits, state and industry officials argued that this would overwhelm state regulators. Thus, in the final rule, EPA eased the implementation schedule by delaying implementation until the operating permits come up for renewal.148

Although industry welcomed this change, it also argued that the implementation schedule will create confusion due to inconsistencies in the rule.149 The rule's preamble implies that companies could be required to comply with the CAM rule when updating pending permit applications because of new information, which would slow the issuance of Title V permits.150 To address this concern, EPA agreed to issue guidance clarifying the rule. According to an EPA letter sent to the Clean Air Implementation Project, the guidance will clarify that supplementary facts, corrected information, or additional information submitted after a permit application is deemed complete will not trigger the CAM rule.151 Companies will only have to comply with the CAA's periodic monitoring requirements until their permits are subject to renewal.152 Companies, however, will still be required to comply with the CAM rule when substantive changes are being made to their permit applications, such as the installation of major new emission units or major modifications to existing units.153

In addition, an environmental organization brought suit against EPA seeking to overturn the rule, arguing that EPA violated CAA mandates by requiring sources only to monitor the operation of the control equipment.154 The CAA requires sources to monitor and report their actual emissions. The group argues that the CAM rule fails to demonstrate a correlation between the operation of control equipment, which is required under the rule, and how much pollution a facility is actually releasing, as required under the Act.155

Mobile Sources

On January 7, 1998, EPA adopted regulations for a national low emission vehicle (LEV) program.156 This program was designed to reduce smog and other pollution from new vehicles. In order for this program to go into effect, however, auto manufacturers and northeastern states that are members of the Ozone Transport Commission had to voluntarily sign up for the program. On March 9, 1998, EPA announced that nine Ozone Transport Commission states and 23 auto manufacturers had opted into the voluntary clean car program, and the opt-ins had satisfied the criteria set forth by EPA in the national LEV regulations.157 Consequently, starting in the northeastern states in model year 1999 and nationally in model year 2001, new cars and light-duty trucks will meet tailpipe standards that are more stringent than EPA could have mandated before model year 2004 under the CAA.

EPA also proposed to revise the emissions compliance procedures for light-duty vehicles and light-duty trucks through a new compliance assurance program (CAP) known as "CAP 2000."158 If finalized, EPA predicts that CAP 2000 would streamline and simplify the current procedures for preproduction certification of new motor vehicles. It would provide the same environmental benefits of the current program while reducing the certification costs for manufacturers and giving manufacturers more control over production timing.

[28 ELR 10731]

Under the proposed program, EPA must certify that new passenger cars and trucks will satisfy air pollution emission standards before they are sold. Annual certification applications for a large volume manufacturer can typically amount to 13,000 pages and take 120,000 hours to complete, costing $ 8.4 million.159 EPA believes that CAP 2000 would reduce this burden by cutting the average application by approximately 7,000 pages, reducing time by 60,000 hours, and cutting costs by $ 4.2 million.160 If finalized, CAP 2000 would begin with model year 2001, and manufacturers would be allowed to voluntarily opt into the program starting with model year 2000. Manufacturers would have to test more than 2,000 customer-owned, in-use vehicles each year under the program, thereby providing a much larger database on actual performance. Testing would be required on vehicles when they are approximately one and four years old. If noncomplying vehicles are identified, the manufacturer must test more vehicles to determine if an emissions recall is necessary. EPA believes that shifting the certification focus from pre-production to actual in-use vehicles will allow it to direct more resources to investigating whether vehicles are actually in compliance. It also will provide manufacturers with data to design and produce vehicles with cleaner, more durable air emission control equipment.

EPA also issued regulations for the reformulated gasoline (RFG) program.161 This rule allows states to opt into the RFG program for any area currently or previously designated as an ozone nonattainment area under the national one-hour ozone standard. This action encompasses all non-attainment areas including marginal, moderate, serious, and severe ozone nonattainment areas, as well as those areas classified as transitional, sub-marginal, no data, or incomplete data areas. The rule expands the RFG program by allowing 80 additional regions to opt into the program.162

Consumer and Commercial Product Volatile Organic Compound Emissions

In September, EPA issued three new air rules intended to significantly reduce volatile organic compound (VOC) emissions from consumer and commercial product industries.163 VOCs contribute to the formation of ground-level ozone (smog) when they react with NOx in sunlight. Smog can damage lung tissue, cause respiratory illness, and harm crops. According to the Agency, consumer and commercial products contribute approximately 30 percent of all national VOC emissions annually.164 All three rules regulate VOC emissions by limiting the amount of VOCs that can be contained in the products covered by the regulations. The rules primarily affect manufacturers, although they may also impact importers and distributors of the products.

One rule regulates the auto refinishing coatings industry, which makes primers and topcoats used primarily by painters at body shops to refinish cars and trucks.165 The regulation, which will affect roughly five large coating manufacturers and importers and between 10 and 15 smaller manufacturers, should reduce VOC emissions by 31,900 tons annually — a 33 percent reduction from the 1995 baseline emissions estimates. The rule affects only the manufacturing process, not the process of applying auto refinishing coatings. The coatings that manufacturers sell to local body shops must be reformulated under the regulation so that the product will contain lower VOC content.

A second rule affects the architectural coatings industry.166 These coatings are used by consumers and contractors, and include exterior and interior house paints, highway and traffic paints, primers, industrial maintenance coatings, and wood and roof coatings. The rule, which will affect approximately 500 manufacturers and importers worldwide, should reduce VOC emissions by 113,500 tons per year, which is a 20 percent reduction from 1990 levels. The rule establishes a VOC content limit for 61 categories of architectural coatings. It also allows architectural coatings manufacturers to pay an "exceedance fee" instead of cutting VOC limits for certain coatings. The fee is based on the number of gallons of product that exceed VOC limits and the amount of VOCs in these products that exceeds the applicable VOC limit.

The third rule affects the household consumer products industry, and includes cleaning and personal care goods as well as many insecticides.167 This regulation will affect about 220 consumer product manufacturers and importers and will reduce VOC emissions by 90,000 tons annually. This represents a 20 percent reduction from 1990 levels. VOC content limits were established for 24 consumer product categories under this rule.

The Agency was under a court order to complete these three rules by August 15, 1998.168 They were signed on August 14th.169 Under a proposed settlement agreement that EPA entered into for its failure to issue rules to reduce VOC emissions from consumer and commercial products, EPA will issue rules or guidelines for wood refinishing coatings, aerospace coatings, and shipbuilding and ship repair coatings by December 1, 1998.170

NOx Limits for New Utility and Industrial Boilers

Also pursuant to a court-ordered deadline, EPA revised the new source performance standards for NOx emissions from new utility boilers and new industrial boilers on September [28 ELR 10732] 3, 1998.171 EPA expects the revised emission limits to reduce emissions by approximately 42 percent — 45,800 tons per year — from levels allowed under the current standards.172 The new standard will apply to all utility and industrial boilers built after July 9, 1997, which is the date the rule was first proposed.173 EPA estimates that 17 new utility boilers and 381 new industrial boilers will be constructed in the next 5 years.174

The revisions will reduce NOx emission limits for both utility and industrial boilers to reflect the performance of best demonstrated technology.175 They also change the form for new utility boilers to an output-based format to promote energy efficiency and pollution prevention.176 An output-based format links the emission limit to the amount of electricity generated rather than to the fuel used for combustion. Utility NOx emissions traditionally have been controlled on the basis of boiler input energy, which is linked to the amount of fuel used for combustion. Input-based limitations allow units with low operating efficiency to emit more NOx per megawatt of electricity produced than more efficient units.

The new emission limit for utility boilers is 1.6 pounds of NOx per megawatt hour of energy output.177 For existing utility boilers that would become subject to the standards due to a modification or reconstruction, EPA revised the NOx emission limit to be consistent with the requirement for new units, but expressed the emission limit in an equivalent input-based format, which is 0.15 pounds of NOx per million British thermal units (Btus).178 For new and existing industrial boilers subject to the standards, EPA lowered the standard to 0.20 pounds of NOx per million Btus.179 The old standard was 0.6 pounds of NOx per million Btus for most types of coal.180

Before its promulgation, the rule raised criticisms from the coal industry, which feared that the new standards would drive an entire portion of their industry out of business.181 Their central concern was with the new limit's potential impact on lignite coal, which contains high amounts of NOx. It accounts for about 8 to 10 percent of U.S.-produced coal.182 They argued that lignite will no longer be a fuel choice for the United States as a result of this more stringent standard.183 After the rule became final, one major industry group said that it is likely to sue, and other groups are likely to join suit.184

Draft Integrated Urban Air Toxics Strategy

EPA's draft integrated urban air toxics strategy is another action EPA has taken in response to a court order.185 A court set an August 31, 1998, deadline for the Agency to develop an urban air toxics strategy pursuant to CAA § 112(k). CAA § 112(k) requires the Agency to identify and regulate at least 30 air toxics that present the greatest threat to public health in the largest number of urban areas.186 The strategy is intended to reduce urban air toxics pollutants through 2006, seeking controls on 34 categories of small stationary emission sources and potentially placing new controls on mobile sources.187

EPA integrated mobile source and area source requirements into the proposal because it believes multiple sources of air toxics are contributing to elevated concentrations in urban areas and that the public is exposed to a complex mixture of pollutants. Cars and trucks, factories, gasoline stations, and dry cleaners are among the sources contributing to the air toxics in urban areas. And although these sources individually may not be large contributors to the air toxics problem, they can potentially pose significant threats when their effects are combined.188

Under the draft strategy, in 1999, after assessing emission reductions achieved since 1990, EPA would propose any additional regulations targeting air toxics emissions from cars, trucks, and other mobile sources and would finalize these rules in 2000.189 EPA would set 17 new standards by 2002 that would go into effect in 2005; 9 new standards in 2004 that would become effective in 2007; and 8 more standards in 2006 that would go into effect in 2009. The strategy also provides the Agency's schedule for further assessing public health risk from air toxics from mobile sources. EPA intends to issue a final strategy along with a report to Congress on the status of the air toxics strategy by June 1999.190

Due to an apparent oversight, however, EPA failed to include in the draft its preference that the controls be applied nationwide rather than just in urban areas.191 Some fear that if controls are not placed nationwide, businesses will have an incentive to move out of urban areas.192

Animal Feedlot Operations

Animal feedlot operations (AFOs) are agricultural facilities that confine feeding activities, thereby concentrating animal [28 ELR 10733] populations and waste. If not managed properly, animal waste can run off farms and pollute nearby water bodies. Such runoff has been linked to dangerous toxic microorganisms such as Pfiesteria piscicida. In 1994, there were about 450,000 AFOs. Roughly 6,600 of these operations fell into the category of concentrated AFOs (CAFOs), which confine larger numbers of animals and, therefore, pose a greater threat to the environment and public health.193 Of these facilities, less than one-quarter have FWPCA permits to control the amount of wastes that run off into waterways.194

In March, EPA released for public comment a draft strategy to minimize the public health and environmental impacts from AFOs.195 This action, which was the first under President Clinton's Clean Water Initiative to finish the job of cleaning the nation's rivers, lakes, and streams, calls for new water pollution control requirements and immediate inspections and increased enforcement for large AFOs to reduce animal waste runoff into waterways.196

The strategy calls for new national standards for allowable levels of pollution in runoff from poultry and swine facilities by December 2001 and from cattle and dairy operations by 2002. The strategy also proposes to issue permits to limit pollution from runoff for the largest CAFOs by 2002, and from all other large feeding operations and priority facilities in impaired watersheds by 2005.

The strategy is intended to improve compliance with and enforcement of existing regulations by working with states to inspect those facilities that present the greatest threats to the environment and public health within three years and all large feedlot operations within five years. It also focuses enforcement and permitting efforts on those watersheds most vulnerable to pollution from AFOs, and seeks to foster a dialogue with the regulated community and the public on how to better protect public health and the environment around these facilities and to encourage voluntary actions.

EPA believes that reductions in manure runoff will decrease the amount of nutrients entering water bodies and that reductions in leaching from amnure storage lagoons will protect groundwater resources from nitrate or pathogen contamination.197 The nation's drinking water systems will also see environmental benefits as a result of the strategy's protection of surface and groundwater, according to the Agency.198

EPA also issued a final enforcement strategy as part of this strategy in order to improve compliance.199 The plan calls for increased targeted CAFO inspections based on environmental risk. Specifically, states and EPA regions will inspect all high-priority CAFOs in three years and the remainder in five years. High-priority CAFOs are those facilities that are the subject of citizen or government tips and complaints, are located in priority watersheds as defined by various FWPCA provisions, are located in watersheds with a high density of CAFOs or other types of AFOs, are located near surface waters, or have the potential for large amounts of animal waste to reach surface water.200 The plan provides for increased compliance assistance, increased enforcement, the development of state-specific compliance and enforcement strategies, and a national enforcement initiative. It also provides for increased support to regions and states in the form of inspector training, targeting assistance, and development of enforcement tools.

In addition, EPA and the U.S. Department of Agriculture announced the availability of their joint strategy, Draft Unified National Strategy for Animal Feeding Operations, on September 16, 1998.201 This strategy proposes a variety of voluntary and regulatory approaches designed to help AFO owners and operators remain financially strong while reducing threats to public health and water quality.202 It directs states to require that all AFOs develop and implement comprehensive nutrient management plans by 2008. It also encourages industry leadership to provide education, financing, and advice for pollution control plans. Thedraft proposes to require large-scale AFOs to obtain FWPCA permits. The first phase of the permitting process would require coverage of large-scale operations, and the second phase would require permits that reflect revisions made to existing effluent guidelines.203

This strategy has received criticism from both environmentalists and the farm industry.204 Environmentalists claim that the strategy needs to be strengthened because it fails to order a moratorium on new and expanding operations while the agencies address the backlog of unpermitted facilities.205 The farm industry argues that it is overly cumbersome for farmers and the agencies responsible for the program's implementation. The industry favors a voluntary process to address the waste problem.206 However, the strategy demonstrates that the federal agencies are recognizing the fact that factory farms have serious impacts on our environment.

The Waste Isolation Pilot Plant

The U.S. Department of Energy's (DOE's) Waste Isolation Pilot Plant (WIPP) is located 2,150 feet below the earth's surface in a natural bedded salt formation. It occupies 16 square miles in southeastern New Mexico, 26 miles east of the city of Carlsbad. On May 13, 1998, EPA certified that [28 ELR 10734] the WIPP would comply with the applicable radioactive waste disposal regulations.207 Shortly after EPA's certification, Secretary of Energy Frederico Pena notified Congress that WIPP was ready to begin disposal of transuranic waste.208 Transuranic waste from 23 locations in 16 states eventually will be shipped to the site.209 "Transuranic" refers to radioactive waste consisting primarily of sludges, tools, rags, glassware, and protective clothing that is contaminated with radioactive elements from weapons production. Some transuranic waste is mixed with hazardous chemicals as well.

Although EPA's certification constituted final approval for the DOE to begin permanent disposal of defense-related radioactive waste under the WIPP Land Withdrawal Act of 1992,210 the certification was conditional.211 The DOE must seal WIPP waste storage panels with a strong concrete barrier that can help reduce potential releases in case of intrusion. Before WIPP receives any waste shipments from a waste generator site, the DOE must demonstrate to EPA that it can accurately assess or confirm the contents of waste containers stored or assembled at the site, and that it can properly implement its quality assurance programs confirming that waste characterization activities are done properly at the site. In addition, the DOE must submit a revised schedule showing that markers and other measures used to warn future generations about the location and contents of the disposal system will be implemented as soon as possible after WIPP's closure. Moreover, EPA only certified WIPP's acceptance of radioactive waste. The DOE must still obtain a hazardous waste permit from New Mexico before accepting disposal of mixed waste.212

WIPP is subject to much controversy. Approximately 35,000 shipments of transuranic waste will be sent to it over a 30-year period by trucks as soon as the plant is operating. Much of this transportation will take place in or near populated areas. In addition to fears concerning radioactive exposure due to transportation, other possible exposures may result due to air drilling near WIPP, which could cause the release of radiation from the repository that exceeds EPA limits.213 Nevertheless, WIPP will most likely begin accepting waste in early 1999.

Wetlands Jurisdiction

In December 1997, the Fourth Circuit held that the U.S. Army Corps of Engineers exceeded its authority in claiming jurisdiction over most isolated wetlands.214 The court held that the Corps' regulation defining waters of the United States to include those waters whose degradation "could affect" interstate commerce exceeded its statutory authority under the FWPCA as limited by the U.S. Constitution's Commerce Clause. It determined that the Corps must show a substantial connection between an isolated wetland and interstate commerce, instead of a mere potential connection, in order to assert jurisdiction over the wetland.

In response to the Fourth Circuit decision, the Corps and EPA issued a joint guidance document addressing federal jurisdiction over isolated wetlands in the Fourth Circuit states.215 The guidance states that the agencies will continue to assert jurisdiction over isolated wetlands when they can establish an "actual link between the water body and interstate orforeign commerce" and when they can demonstrate that the "use, degradation or destruction of isolated waters with such a link would have a substantial effect on interstate or foreign commerce," either individually or in the aggregate.216 A connection between the wetland and interstate commerce exists, according to the guidance, if the wetland is used for recreation by interstate or foreign travelers or for taking fish or shellfish that can be sold in interstate commerce.217 A wetland that is used by businesses operating in interstate commerce, by migratory birds, or by listed endangered or threatened species also subjects the wetland to federal jurisdiction.218 In all other areas not affected by the court's ruling, the agencies will continue to rely on the regulation. However, should other circuits follow the Fourth Circuit's trend, EPA and the Corps will have to rethink their policy or try to reinstate their jurisdiction by appealing to the Supreme Court.

Conclusion

Looking at EPA's major accomplishments over the past year helps us to identify some of the work the Agency must focus on in fiscal year 1999. The Agency will certainly continue to work on its implementation of the revised ozone and PM standards. Likewise, it will have to fine tune its environmental justice guidance as well as other guidance documents, such as its clarification of the CAM rule. In addition, EPA will most likely have to defend itself when some of these rules are challenged by state, industry, and environmental representatives. Most importantly, however, EPA's efforts during fiscal year 1998 will continue to shape environmental regulations and policy in the years to come.

1. Although significance may be relative, and practitioners understandably consider rules that affect their practice areas to be significant, space limitations require that this Comment focus on the rules of greatest concern to the larger segments of ELR's readership. For description of other EPA action as well as action by other agencies, see In The Federal Agencies in the Recent Developments section of each issue of ELR News & Analysis.

2. 42 U.S.C. §§ 7401-7671q, ELR STAT. CAA §§ 101-618. The revised ozone and PM standards were published at 62 Fed. Reg. 38856 (July 18, 1997); id. at 38652. EPA also proposed a regional haze rule in July 1997 that addresses visual impairment problems of our nation's parks and wilderness areas. Id. at 41138 (July 31, 1997). It would require all 50 states to submit plans to EPA for improving visibility in 156 national parks and wildernesses, which are known as Class I areas under the CAA. It would also require states to develop plans for meeting progress requirements designed to improve visibility by about 10 percent every 10 to 15 years. In light of EPA's proposed regional haze rule, many of the guidance documents issued pertaining to implementation of the ozone and PM standards also address regional haze concerns.

3. 62 Fed. Reg. at 38856.

4. Id. at 38652.

5. Id.

6. U.S. EPA, EPA Announces Final Rule to Protect Eastern U.S. From Smog (Sept. 24, 1998) (press release).

7. U.S. EPA, EPA Proposes Emissions Trading Program to Help Protect Eastern U.S. From Smog (Apr. 29, 1998) (press release).

8. Id.

9. U.S. EPA, FACT SHEET: FINAL RULE FOR REDUCING REGIONAL TRANSPORT OF GROUND-LEVEL OZONE (SMOG) AND TWO RELATED PROPOSALS (Sept. 24, 1998) (available from the ELR Document Service, ELR Order No. AD-3929) [hereinafter REGIONAL TRANSPORT FACT SHEET].

10. Members of Congress Give EPA Divergent Advice on Utility Emissions, Daily Env't Rep. (BNA), Sept. 21, 1998, at A-5; see also REGIONAL TRANSPORT FACT SHEET, supra note 9, at 4.

11. The states affected by the rule are: Alabama, Connecticut, Delaware, Georgia, Illinois, Indiana, Kentucky, Massachusetts, Maryland, Michigan, Missouri, North Carolina, New Jersey, New York, Ohio, Pennsylvania, Rhode Island, South Carolina, Tennessee, Virginia, Wisconsin, and West Virginia. The District of Columbia is also affected by the rule. REGIONAL TRANSPORT FACT SHEET, supra note 9, at 1.

12. Id. at 2.

13. U.S. EPA, THE REGIONAL TRANSPORT OF OZONE: NEW EPA RULEMAKING ON NITROGEN OXIDE EMISSIONS (Sept. 1998) (available from the ELR Document Service, ELR Order No. AD-3930).

14. REGIONAL TRANSPORT FACT SHEET, supra note 9, at 1.

15. Id. at 7.

16. U.S. EPA, Fact Sheet on Cleaning the Air and Protecting Eastern U.S. From Smog (Sept. 24, 1998) (press release).

17. REGIONAL TRANSPORT FACT SHEET, supra note 9, at 7.

18. Id.

19. Id.

20. Pool of Credits for States Could Help Utilities Meet Low Emission Goals, EPA Says, Daily Env't Rep. (BNA), Oct. 1, 1998, at A-1.

21. Members of Congress Urge President's Support for SIP Call Alternatives, CLEAN AIR REP., Aug. 6, 1998, at 11.

22. Id.

23. NOx Cuts Set at 1.1 Million Tons Annually Through 2007, With Some Leeway, EPA Says, Daily Env't Rep. (BNA), Sept. 25, 1998, at AA-1.

24. Utilities, State Officials Say Final NOx Rule Provides Insufficient Time to Develop Plans, Daily Env't Rep. (BNA), Oct. 1, 1998, at AA-1.

25. Utility Group: Competitive Market Will Ease NOx SIP Call Power Supply Fears, CLEAN AIR REP., Sept. 3, 1998, at 12.

26. See Joby Warrick, EPA Orders Emission Reductions, Smog-Producing Chemicals Are Targeted in 22-State Plan, WASH. POST, Sept. 25, 1998, at A4; see also OTC Praises Ozone-Reduction Plan, Looks Toward Implementation, Daily Env't Rep. (BNA), Sept. 29, 1998, at A-7.

27. Transported Ozone May Cost Northeast Nearly $ 4 Billion Absent More Controls, 29 Env't Rep. (BNA) 639 (July 24, 1998). The upwind states looked at in the study are: Indiana, Kentucky, Michigan, Ohio, Virginia, and West Virginia.

28. Utility Group: Competitive Market Will Ease NOx SIP Call Power Supply Fears, supra note 25, at 12.

29. Id.

30. 63 Fed. Reg. 52213 (Sept. 30, 1998). EPA, in the same notice, also proposed federal implementation plans that may be needed if any state fails to comply with its NOx SIP call rulemaking.

31. The eight petitioning states are: Connecticut, Maine, Massachusetts, New Hampshire, New York, Pennsylvania, Rhode Island, and Vermont.

32. REGIONAL TRANSPORT FACT SHEET, supra note 9, at 10.

33. 63 Fed. Reg. 52213 (Sept. 30, 1998); REGIONAL TRANSPORT FACT SHEET, supra note 9, at 10.

34. Id.

35. Id.

36. Court Dismisses Utility Suit to Block EPA Action on States' Ozone Petition, 29 Env't Rep. (BNA) 109 (May 8, 1998).

37. Midwest Ozone Group v. U.S. EPA, No. 97-1627 (D.C. Cir. Apr. 28, 1998).

38. Court Dismisses Utility Suit to Block EPA Action on States' Ozone Petition, supra note 36, at 109.

39. 63 Fed. Reg. 52213; REGIONAL TRANSPORT FACT SHEET, supra note 9, at 3.

40. 63 Fed. Reg. 8196 (Feb. 18, 1998) (available from the ELR Document Service, ELR Order No. AD-3642).

41. U.S. EPA, GUIDANCE ON MITIGATION OF IMPACT TO SMALL BUSINESS WHILE IMPLEMENTING AIR QUALITY STANDARDS AND REGULATIONS (Apr. 27, 1998) (available from the ELR Document Service, ELR Order No. AD-3700).

42. Id. at 3.

43. Id.

44. Id. at 4.

45. Id. at 4-5.

46. Available from the ELR Document Service, ELR Order No. AD-3818.

47. U.S. EPA, RE-ISSUE OF THE EARLY PLANNING GUIDANCE FOR THE REVISED OZONE/PM/REGIONAL HAZE IMPLEMENTATION (June 16, 1998) (available from the ELR Document Service, ELR Order No. AD-3910).

48. Pub.L. No. 105-178, 112 Stat. 107 (1998). Title VI of the Transportation Equity Act for the 21st Century (TEA-21) pertains to ozone and PM standards.

49. The guidance also notes that states may have to provide additional SIP authorities to implement the regional haze SIPs. The timing requirements of the regional haze SIPs were modified by a provision in TEA-21. Thus, the timing for submission of future regional haze SIPs will be addressed in the final regional haze rule, which is expected in the fall of 1998.

50. U.S. EPA, POLICY TO PROVIDE FOR EXTENDING THE DATE TO MEET GROUND-LEVEL OZONE AIR QUALITY STANDARDS FOR AREAS AFFECTED BY TRANSPORT OF POLLUTANTS FROM UPWIND AREAS (July 17, 1998).

51. New Policy Allows Areas to Avoid Penalties for Violating Ozone Rules Due to Transport, 29 Env't Rep. (BNA) 637 (July 24, 1998).

52. U.S. EPA, PROPOSED IMPLEMENTATION GUIDANCE FOR THE REVISED OZONE AND PM NAAQS AND THE REGIONAL HAZE PROGRAM (Aug. 14, 1998) (available from the ELR Document Service, ELR Order No. AD-3919) [hereinafter PROPOSED IMPLEMENTATION GUIDANCE].

53. Id. at 4; Guidance Spells Out Proposed EPA Policy for Implementing Revised Ozone, PM Rules, Daily Env't Rep. (BNA), Aug. 21, 1998, at AA-1.

54. PROPOSED IMPLEMENTATION GUIDANCE, supra note 52, at 5; Guidance Spells Out Proposed EPA Policy for Implementing Revised Ozone, PM Rules, supra note 53, at AA-1. The 1-hour primary standard for ozone was set at a level of 0.12 ppm over a 1-hour average. See 63 Fed. Reg. 38857. This standard was replaced by the more stringent 8-hour standard at a level of 0.08 ppm. Id. at 38856.

55. PROPOSED IMPLEMENTATION GUIDANCE, supra note 52, at 9; Guidance Spells Out Proposed EPA Policy for Implementing Revised Ozone, PM Rules, supra note 53, at AA-1.

56. PROPOSED IMPLEMENTATION GUIDANCE, supra note 52, at 8; Guidance Spells Out Proposed EPA Policy for Implementing Revised Ozone, PM Rules, supra note 53, at AA-1.

57. PROPOSED IMPLEMENTATION GUIDANCE, supra note 52, at 27; Guidance Spells Out Proposed EPA Policy for Implementing Revised Ozone, PM Rules, supra note 53, at AA-1.

58. Id.

59. Pub. L. No. 104-182, 110 Stat. 1613 (Aug. 1996).

60. 63 Fed. Reg. 44511 (Aug. 19, 1998); see also U.S. EPA, CONSUMER CONFIDENCE REPORTS: FINAL RULE, FACT SHEET (Aug. 1998) [hereinafter CCR FACT SHEET].

61. Pub. L. No. 104-182, § 114,110 Stat. 1613, 1636-41; see CCR FACT SHEET, supra note 60.

62. Clinton Unveils "Right-To-Know" Rule Requiring Disclosure of Water Quality, 29 Env't Rep. (BNA) 792, 793 (Aug. 14, 1998).

63. 63 Fed. Reg. 44513; CCR FACT SHEET, supra note 60, at 1.

64. 63 Fed. Reg. 44513; CCR FACT SHEET, supra note 60, at 1-2.

65. 63 Fed. Reg. 44514; CCR FACT SHEET, supra note 60, at 2.

66. Clinton Unveils "Right-To-Know" Rule Requiring Disclosure of Water Quality, supra note 62, at 792, 793.

67. Id.

68. Id. at 794.

69. 63 Fed. Reg. 10274 (Mar. 2, 1998).

70. Id. at 10286.

71. Id. at 43834 (Aug. 14, 1998).

72. Id. at 41939 (Aug. 5, 1998).

73. Id. at 42193 (Aug. 6, 1998).

74. Id. at 42032.

75. Id.

76. Id. at 42632 (Aug. 10, 1998).

77. Id.

78. Id. at 42849 (Aug. 11, 1998).

79. 42 U.S.C. §§ 2000d to 2000d-7. Title VI states that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." Id. § 2000d.

80. U.S. EPA, INTERIM GUIDANCE FOR INVESTIGATING TITLE VI ADMINISTRATIVE COMPLAINTS CHALLENGING PERMITS (Feb. 5, 1998) (available from the ELR Document Service, ELR Order No. AD-3660) [hereinafter INTERIM GUIDANCE]; see also Policy Set for Handling of Complaints on Local, State Environmental Permits, 28 Env't Rep. (BNA) 2125 (Feb. 13, 1998).

81. Policy Set for Handling of Complaints on Local, State Environmental Permits, supra note 80, at 2125.

82. INTERIM GUIDANCE, supra note 80, at 2.

83. INTERIM GUIDANCE, supra note 80.

84. Id. at 2.

85. Id. at 3.

86. 40 C.F.R. §§ 7.110(c), 7.115(e), 7.130(b) (1996); INTERIM GUIDANCE, supra note 80, at 4.

87. INTERIM GUIDANCE, supra note 80, at 9-11.

88. Id. at 5.

89. Id.

90. Id. at 8.

91. Id.

92. Id.

93. See Jeffrey B. Gracer, Taking Environmental Justice Claims Seriously, 28 ELR 10373, 10375 (July 1998); see also State Agency Asks EPA to Withdraw New Guidance on Civil Rights Complaints, 28 Env't Rep. (BNA) 2531 (Apr. 3, 1998); States Draft Alternative to USEPA Environmental Justice Policy, STATE ENVTL. MONITOR, Aug. 20, 1998, at 1; SAB to Begin Reviewing Methods for Determining "Disproportionate Impact," Daily Env't Rep. (BNA), Sept. 3, 1998, at AA-1.

94. State Agency Asks EPA to Withdraw New Guidance on Civil Rights Complaints, supra note 93, at 2531; see Gracer, supra note 93, at 10375. Iowa is the only state that is not a member of ECOS. See The Environmental Council of the States website (visited Oct. 9, 1998) http://www.sso.org/ecos/states.htm.

95. States Draft Alternative to USEPA Environmental Justice Policy, supra note 93, at 1.

96. Id.

97. Id.

98. SAB to Begin Reviewing Methods for Determining "Disproportionate Impact," supra note 93, at AA-1.

99. 63 Fed. Reg. 43394 (Aug. 13, 1998). The notice announced a meeting of two Science Advisory Board committees that were held on September 4, 1998. The notice stated questions for the Board's review in which the methodologies were described.

100. Id.; see SAB to Begin Reviewing Methods for Determining "Disproportionate Impact," supra note 93, at AA-1

101. SAB to Begin Reviewing Methods for Determining "Disproportionate Impact," supra note 93, at AA-1

102. 63 Fed. Reg. at 43395; see SAB to Begin Reviewing Methods for Determining "Disproportionate Impact," supra note 93, at AA-1.

103. Advisors Recommending Some Changes in Methods for Title VI Complaint Analysis, Daily Env't Rep. (BNA), Sept. 8, 1998, at A-3.

104. 67 U.S.L.W. 3129 (U.S. Aug. 17, 1998) (No. 97-1620).

105. INTERIM GUTDANCE, supra note 80, at 4.

106. 132 F.3d 925, 28 ELR 20487 (3d Cir. 1997), cert. granted sub. nom. Seif v. Chester Residents Concerned for Quality Living, 66 U.S.L.W. 3777 (U.S. June 8, 1998) (No. 97-1620).

107. Ability to File Legal Challenges to Permits Under Civil Rights Law Remains Untested, Daily Env't Rep. (BNA), Aug. 26, 1998, at AA-1.

108. Id.

109. 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA §§ 1001-11012.

110. U.S. EPA, Land Disposal Restrictions Phase IV Facts (visited Aug. 26, 1998) http://www.epa.gov/epaoswer/hazwaste/ldr/ldrmetal/facts.htm.

111. Id.

112. Id.

113. Id.

114. 63 Fed. Reg. 28556 (May 26, 1998). Zinc fertilizer was exempted from this rule on August 31, 1998. Id. at 46331 (Aug. 31, 1998). EPA is planning to propose a rule in 1999 to develop a more consistent and comprehensive approach to regulating hazardous waste-derived fertilizers. The rule should be final in 2000. See Zinc Fertilizer Exempt From Phase IV Treatment Rule, Subject to 1999 Proposal, Daily Env't Rep. (BNA), Sept. 1, 1998, at AA-1. EPA also set a revised treatment standard for arsenic in nonwastewater forms of spent potliner waste (K088 waste) on September 24, 1998. 63 Fed. Reg. 51254 (Sept. 24, 1998); see New Standard for Arsenic Included in Final Rule on Spent Potliner Waste, Daily Env't Rep. (BNA), Sept. 24, 1998) at A-8.

115. 63 Fed. Reg. at 28559 (May 26, 1998); see also Kenneth M. Kastner, Second Phase IV Land Disposal Restrictions Rule Issued; Treatment Standards for Metal Hazardous Wastes, Contaminated Soil Adopted, Daily Env't Rep. (BNA), Aug. 17, 1998, at B-1.

116. Id.

117. Characteristic wastes are wastes that are deemed hazardous because their inherent properties satisfy one or more tests developed by EPA for evaluating wastes. The four tests are: ignitability, corrosivity, reactivity, and toxicity. 40 C.F.R. §§ 261.21-.24 (1997). Listed wastes are wastes EPA placed on one of four lists of hazardous wastes. The criteria for determining whether to list a waste as hazardous are: (1) if it exhibits one of the four characteristics of hazardous wastes; (2) if it is acutely hazardous; or (3) if it contains one or more of the constituents of hazardous wastes listed in appendix VIII of 40 C.F.R. part 261, and it poses a substantial threat to human health and the environment. 40 C.F.R. § 261.11(a) (1997).

118. 63 Fed. Reg. at 28561; see also Kastner, supra note 115, at B-2.

119. Kastner, supra note 115, at B-2.

120. 63 Fed. Reg. 28603-22 (May 26, 1998); see also Kastner, supra note 115, at B-2.

121. Kastner, supra note 115, at B-2.

122. Id.

123. Id.

124. 63 Fed. Reg. at 28606-08.

125. Id. at 28572-603; see Kastner, supra note 115, at B-3.

126. 63 Fed. Reg. at 28629-30.

127. Id. at 28627-29.

128. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405.

129. U.S. EPA, Policy for Municipality and Municipal Solid Waste CERCLA Settlements at NPL Co-Disposal Sites, 63 Fed. Reg. 819 (Feb. 18, 1998) (available from the ELR Document Service, ELR Order No. AD-3686). The interim policy was issued on September 30, 1989.

130. U.S. EPA, EPA Issues Policy for Municipal Solid Waste CERCLA Settlements at NPL Co-Disposal Sites (Feb. 13, 1998) (press release).

131. Segregation Clause Eased, Unit Cost Raised in Final Version of Municipal Liability Policy, 28 Env't Rep. (BNA) 2109 (Feb. 13, 1998).

132. 62 Fed. Reg. 10473 (July 11, 1997).

133. Segregation Clause Eased, Unit Cost Raised in Final Version of Municipal Liability Policy, supra note 131, at 2109.

134. U.S. Asks Court to Dismiss Challenge to Municipal Solid Waste Settlement Policy, Daily Env't Rep. (BNA), Sept. 2, 1998, at A-4 (discussing Chemical Manufacturers Ass'n v. U.S. EPA).

135. Id.

136. Id.

137. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

138. 63 Fed. Reg. 18504 (Apr. 15, 1998). EPA issued a clarifying amendment to the rule on September 16, 1998, that pertains to the air portion of the rule. Id. at 49455 (Sept. 16, 1998). See Flexibility for Pulp Mills Treating Toxics Extends to Multiple Technologies, EPA Says, Daily Env't Rep. (BNA), Sept. 16, 1998, at A-1.

139. U.S. EPA, FACT SHEET; EPA'S FINAL PULP, PAPER, AND PAPER-BOARD "CLUSTER RULE" - OVERVIEW (Nov. 1997) [hereinafter CLUSTER RULE FACT SHEET].

140. 63 Fed. Reg. at 18504; see also CLUSTER RULE FACT SHEET, supra note 139, at 1.

141. Id.

142. Id.

143. CLUSTER RULE FACT SHEET, supra note 139, at 2.

144. 62 Fed. Reg. 54900 (Oct. 22, 1997).

145. Final CAM Rule Eases Implementation, Limits Applicability for Certain Sources, 28 Env't Rep. (BNA) 1197 (Oct. 17, 1997) (discussing Sierra Club v. Browner).

146. Id.

147. EPA to Clarify Clean Air Monitoring Rule to Ease Key Industry Concern, 19 INSIDE EPA, Aug. 21, 1998, at 5.

148. Final CAM Rule Eases Implementation, Limits Applicability for Certain Sources, supra note 145, at 1197.

149. EPA to Clarify Clean Air Monitoring Rule to Ease Key Industry Concern, supra note 147, at 5.

150. Id.

151. Id.

152. Id.

153. Id.

154. Natural Resources Defense Council v. U.S. EPA, No. 97-1727 (D.C. Cir. Dec. 19, 1997).

155. Environmental Group Sues Over CAM Rule, Claims EPA Did Not Follow Air Act Mandate, 28 Env't Rep. (BNA) 1646 (Jan. 2, 1998).

156. 63 Fed. Reg. 926 (Jan. 7, 1998).

157. Id. at 11374 (Mar. 9, 1998).

158. Id. at 39654 (July 23, 1998).

159. U.S. EPA, EPA Reinvents Auto Emissions Certification Program (July 15, 1998) (press release).

160. Id.

161. 63 Fed. Reg. 52094 (Sept. 29, 1998).

162. See Rule Gives 80 New Areas RFG Option, Expanding 1997 Proposal, Agency Says, Daily Env't Rep. (BNA), Sept. 24, 1998, at AA-1.

163. 63 Fed. Reg. 48791, 48806, 48819, 48848 (Sept. 11, 1998).

164. U.S. EPA, EPA Announces Three New Air Rules Cutting Smog-Forming Emissions Over 235,000 Tons Yearly (Aug. 21, 1998) (press release).

165. 63 Fed. Reg. at 48806; see also Final Rules to Regulate VOC Emissions From Various Consumer Products, Paints, 29 Env't Rep. (BNA) 829 (Aug. 21, 1998).

166. 63 Fed. Reg. at 48848; see also Final Rules to Regulate VOC Emissions From Various Consumer Products, Paints, supra note 165, at 829.

167. 63 Fed. Reg. at 48819; see also Final Rules to Regulate VOC Emissions From Various Consumer Products, Paints, supra note 165, at 829.

168. Sierra Club v. U.S. EPA, No. 97-1984 (D.C. Cir. Feb. 20, 1998); see Final Rules to Regulate VOC Emissions From Various Consumer Products, Paints, supra note 165, at 829.

169. Final Rules to Regulate VOC Emissions From Various Consumer Products, Paints, supra note 165, at 829.

170. 63 Fed. Reg. 12465 (Mar. 13, 1998).

171. Id. at 49442 (Sept. 16, 1998); U.S. EPA, EPA Announces Tougher Air Standards for New Power Plants (Sept. 4, 1998) (press release).

172. U.S. EPA, EPA Announces Tougher Air Standards for New Power Plants, supra note 171.

173. 62 Fed. Reg. 36948 (July 7, 1997).

174. U.S. EPA, FACT SHEET: FINAL REVISION OF STANDARDS OF PERFORMANCE FOR NITROGEN OXIDE EMISSIONS FROM NEW FOSSILFUEL FIRED STEAM GENERATING UNITS (Sept. 3, 1998) at 4 [hereinafter STANDARDS OF PERFORMANCE FACT SHEET].

175. 63 Fed. Reg. 49442 (Sept. 16, 1998); STANDARDS OF PERFORMANCE FACT SHEET, supra note 174, at 1.

176. 63 Fed. Reg. at 49442; STANDARDS OF PERFORMANCE FACT SHEET, supra note 174, at 5.

177. STANDARDS OF PERFORMANCE FACT SHEET, supra note 174, at 2.

178. Id. at 3.

179. Id.

180. EPA Utility Boiler NOx Standards Imminent; Coal Industry Sees Demise of Lignite Sector, Daily Env't Rep. (BNA), Sept. 4, 1998, at A-6.

181. Id.

182. Id. This statistic is according to an unnamed mining industry official.

183. Id.

184. Industry Likely to Sue EPA Over New NOx Standard for Boilers, CLEAN AIR REP., Sept. 17, 1998, at 7.

185. Sierra Club v. Browner, No. CIV 95-1747 (D.D.C. 1995) (consolidated with Sierra Club v. Browner, No. 96-436 (D.D.C. 1996)).

186. 42 U.S.C. § 7412(k), ELR STAT. CAA § 112(k).

187. 63 Fed. Reg. 49239 (Sept. 14, 1998); see also EPA Proposes Integrated Strategy to Control Urban Air Toxics, CLEAN AIR REP., Sept. 3, 1998, at 20.

188. 63 Fed. Reg. at 49241.

189. U.S. EPA, FACT SHEET: NOTICE OF AVAILABILITY OF THE DRAFT INTEGRATED URBAN AIR TOXICS STRATEGY (Aug. 31, 1998) at 4.

190. Id. at 1.

191. EPA Draft Urban Air Toxics Strategy Omits National Standards Plan, CLEAN AIR REP., Sept. 17, 1998, at 3.

192. Id.

193. Id.

194. U.S. EPA, FACT SHEET, EPA's DRAFT STRATEGY ON ANIMAL FEEDING OPERATIONS (Mar. 5, 1998) (available from the ELR Document Service, ELR Order No. AD-3658) [hereinafter ANIMAL FEEDING OPERATIONS].

195. U.S. EPA, DRAFT STRATEGY FOR ADDRESSING ENVIRONMENTAL AND PUBLIC HEALTH IMPACTS FROM ANIMAL FEEDING OPERATIONS (Mar. 4, 1998) (available from the ELR Document Service, ELR Order No. AD-3657).

196. The Clean Water Action Plan was made available by EPA and the U.S. Department of Agriculture on March 24, 1998. 63 Fed. Reg. 14109 (Mar. 24, 1998). In response to the President's Clean Water Plan Initiative, it builds on current clean water programs and proposes actions to restore and protect water resources.

197. See ANIMAL FEEDING OPERATIONS, supra note 194.

198. Id.

199. U.S. EPA, COMPLIANCE ASSURANCE IMPLEMENTATION PLAN FOR CONCENTRATED ANIMAL FEEDING OPERATIONS (Mar. 5, 1998).

200. Animal Feeding Operations Would Face Tighter Regulations Under EPA Draft Strategy, 28 Env't Rep. (BNA) 2397 (Mar. 13, 1998).

201. U.S. EPA, USDA, EPA, Announce Joint Strategy for Animal Feeding Operations (Sept. 16, 1998) (press release).

202. USDA & U.S. EPA, DRAFT UNIFIED NATIONAL STRATEGY FOR ANIMAL FEEDING OPERATIONS (Sept. 11, 1998) (available from the ELR Document Service, ELR Order No. AD-3950).

203. More Animal Feeding Operations Subject to Permit Requirements Under EPA Draft, Daily Env't Rep. (BNA), Sept. 16, 1998, at AA-1.

204. Environmentalists Fault Feedlot Plan While Farmers Want Voluntary Approach, Daily Env't Rep. (BNA), Sept. 17, 1998, at A-6.

205. Id.

206. Id.

207. 40 C.F.R. pt. 191, subpts. B & C (1997). EPA's certification was published on May 18, 1998 at 63 Fed. Reg. 27353 (May 18, 1998).

208. U.S. DOE, Energy Secretary Notifies Congress Waste Isolation Pilot Plant Ready to Open (May 13, 1998) (press release) [hereinafter DOE Press Release]; see also U.S. EPA, EPA Issues Safety Certification of DOE Plan to Dispose of Radioactive Waste in New Mexico (May 13, 1998) (press release) [hereinafter EPA Press Release].

209. DOE Press Release, supra note 208.

210. Pub. L. No. 102-579, §§ 7(b)(1), 8(d)(1), 106 Stat. 4777, amended by WIPP Land Withdrawal Amendment Act of 1996, Pub. L. No. 104-201, 110 Stat. 2422.

211. 63 Fed. Reg. at 27353.

212. EPA Press Release, supra note 208. According to DOE's Carlsbad area office, the New Mexico Environment Department issued a draft permit on May 15, 1998, but it has not yet been made final. The permit is expected to be finalized in late 1998 or early 1999, with waste disposal beginning in January or February 1999.

213. DEBORAH READE, EVERYTHING YOU ALWAYS WANTED TO KNOW ABOUT WIPP (Citizens for Alternatives to Radioactive Dumping 1996). Also available on the Citizens for Alternatives to Radioactive Dumping website at www.unm.edu/_rekp/card.html.

214. United States v. Wilson, 133 F.3d 251, 28 ELR 20299 (4th Cir. Dec. 23, 1997).

215. U.S. EPA & U.S. ARMY CORPS OF ENGINEERS, GUIDANCE FOR CORPS AND EPA FIELD OFFICES REGARDING FWPCA § 404 JURISDICTION OVER ISOLATED WATERS IN LIGHT OF UNITED STATES v. WILSON (May 29, 1998) (available from the ELR Document Service, ELR Order No. AD-3829).

216. Id. at 6.

217. Id.

218. Id.

28 ELR 10721 | Environmental Law Reporter | copyright © 1998 | All rights reserved