Sierra Club, Highlands Conservancy Threaten Suit Over Dunkard Creek

Ben Adducio of WV Public Radio reports that the Sierra Club and West Virginia Highlands Conservancy have announced an intention to sue the state over the golden algae bloom that killed biota in Dunkard Creek last fall. Here's Ken Ward's story on the 60 day notice of intent to sue they sent to Consol. The 60 day notice is required under the Clean Water Act before a citizen suit can be filed. If the state begins an enforcement action in that time, the citizen suit is precluded.

Global Warming Not Contributing to Hurricane Numbers

Anthony Watts reports on a new study that concludes there is no sign of the effects of anthropogenic global warming in the number or intensity of hurricanes. The report, by the World Meteorological Association, reached this conclusion:

. . . we cannot at this time conclusively identify anthropogenic signals in past tropical cyclone data.

That's a big deal, because for years the media has repeated the mantra that global warming will inevitably lead to more and stronger hurricanes. That hasn't occurred. For a fuller discussion, I urge readers to follow the link to Watts' story, and to look at his website generally. It's probably the most visited of the skeptic sites,and very well done. There are good comments as well, and occasionally some helpful give-and-take between believers in, and skeptics of, AGW. Just be careful not to use the word "robust" if you decide to participate.

State Moves Ahead on Pollution Reduction to Protect Chesapeake Bay

Ry Rivard has a nice article in the Charleston Daily Mail on the politics of the Chesapeake Bay clean up and its potential effect on West Virginia farmers. In order to protect the Bay, all the dischargers along the Bay's tributaries will have to cut back discharges. That means farmers will have to use less fertilizer and keep cattle out of streams, suburban homeowners will need to use less lawn fertilizer, and cities will have to control combined sewer overflows and sewage treatment works better. It's a tough chore to get everyone to ratchet back, but it's for a good cause.

Each state is making its own cuts in nitrogen and phosphorus to meet the cap assigned to the state. In West Virginia, government agencies like the Agriculture Department, Forestry Division and DEP are working on improving the models that predict the effect of activities that are intended to reduce nutrient loading. They'll use the models to assign pollution reduction limits. Theresa Kuhn (hope I spelled her name right) is heading up this process for the DEP.

EPA Intends To Delay Emissions Controls On Greenhouse Gas Sources

Lisa Jackson, EPA Administrator, announced that EPA will be delaying imposition on greenhouse gas limits. This was issued in response to the letter from 8 Democratic senators advising her that EPA does not have the authority to regulate GHGs, except for mobile sources. Much as I'd like to agree, I'm not certain how the senators came up with that position, given that they support the EPA's endangerment finding. If they support the endangerment finding, EPA is supposed to regulate GHGs at the statutory level.

Here's EPA's summary of Ms. Jackson's letter:

WASHINGON – U.S. EPA Administrator Lisa P. Jackson issued a letter responding to a letter sent to her the evening of February 19 by eight U.S. Senators asking about the agency’s plans for 2010.

In the letter, the administrator outlines several of the decisions she has made for 2010-2011:

· No facility will be required to address greenhouse gas emissions in Clean Air Act permitting of new construction or modifications before 2011.

· For the first half of 2011, only facilities that already must apply for Clean Air Act permits as a result of their non-greenhouse gas emissions will need to address their greenhouse gas emissions in their permit applications.

· EPA is also considering a modification to the rule announced in September requiring large facilities emitting more than 25,000 tons of greenhouse gases a year to obtain permits demonstrating they are using the best practices and technologies to minimize GHG emissions. EPA is considering raising that threshold substantially to reflect input provided during the public comment process.

· EPA does not intend to subject smaller facilities to Clean Air Act permitting for greenhouse gas emissions any sooner than 2016.


Full text of the letter: http://epa.gov/oar/pdfs/LPJ_letter.pdf

Alternative Energy Not Here Yet

The Wall Street Journal has a nice explanation by Michael Totty of why it may be a while before alternative energy sources and products will be developed in any significant fashion. All of them are promising, but not in the short run.

ORSANCO Announces Expedited Water Quality Standard Review

The Ohio River Valley Water Sanitation Commission (ORSANCO), which sets standards for water quality on the Ohio River, has announced that it will be considering four changes to its Pollution Control Standards, the equivalent of water quality standards in WV. These are issues that are deemed to be of sufficient importance that they merit consideration before the regular triennial review commences in March of 2011. Here are the 4 issues:

Design Flow for Human Health Criteria – In an apparent oversight, the Standards do not currently specify a design flow for criteria in Sections IV.C.1, IV.C.2, and IV.C.3.
This presents difficulties for NPDES permit writers in deriving limits. Use of the seven
day ten year low flow would be proposed.

Total Dissolved Solids- Criteria for total dissolved solids were omitted from the
Standards in a previous review when the criteria were rearranged to differentiate
between those adopted to protect human health and those adopted to protect aquatic
life. Elevated levels of total dissolved solids on the upper Ohio River the past two years
have suggested a need to restore the criteria. Restoration of the drinking water criteria
(500 mg/L monthly average; 750 mg/L maximum) would be proposed. Criteria for
aquatic life protection might also be considered.

Selenium- Criteria for selenium in the current Standards were adopted by US EPA in
the 1980s, but are now considered out of date. US EPA is in the process of adopting
new criteria; the revised criteria are expected to be available in 2010. Adoption of the
US EPA criteria (assuming that they are available and acceptable to the Commission)
would be proposed.

Use of Variance Procedure- Currently, the Variance Procedure established in Section
VIII of the Standards applies only to requirements in Section V. Meanwhile, the
prohibition of mixing zones for Bioaccumulative Chemicals of Concern in Section VI sets
a requirement that may not be consistently attainable with current control technology.
The NPDES Subcommittee has suggested that temporary variances to this requirement
be considered; this would require a revision of the Standards to allow variances to
Section VI. Such variances would be for the life of the current permit, and would
include alternative limits that would be attainable by current technology


The review will begin with a public comment period. Comments on the specified portions of
the Standards will be accepted from now until April 16, 2010. All comments received on the
specified matters will be considered by the Commission; any comments received on other
portions of the Standards will be deferred for consideration in the next regularly scheduled
review, which will begin in March, 2011. After considering all comments received, the
Commission will determine whether or not to go forward with any proposed revisions at its
June, 2010 meeting. Proposed language for any revisions to be considered for adoption will
be presented for public comment at workshops and hearings in August, with final action by
the Commission anticipated in October. Should the Commission not elect to go forward with
proposed revisions at that time a notice to that effect will be posted on this web site

New Rules Adopted for Internal Combustion Engines

EPA recently adopted new rules for large stationary reciprocating internal combustion engines. Here is what Anne Blankenship reports.


On February 17, 2010, EPA issued a final rule that will require reductions of emissions of toxic air pollutants from existing diesel powered stationary
reciprocating internal combustion engines (RICE). Operators of existing stationary diesel engines will be required to:

- Install emissions control equipment that would limit air toxics emissions by up to
70 percent for stationary non-emergency engines with a site rating greater than
300 HP,
- Perform emissions tests to demonstrate engine performance and compliance with
rule requirements, and
- Burn ultra-low sulfur fuel in stationary non-emergency engines with a site rating
greater than 300 horsepower.

The fact sheet for the final rule: http://www.epa.gov/ttn/oarpg/t3/fact_sheets/rice_neshap_fs_021710.pdf

The final rule: http://www.epa.gov/ttn/oarpg/t3/fr_notices/rice_neshap_021710.pdf

This final rule has not be published in the Federal Register. It will be effective 60 days after it is published.


Anne C. Blankenship
Robinson & McElwee PLLC

If New York Doesn't Drill for Gas, Let Them Buy West Virginia's

New York has been reluctant to allow horizontal drilling and hydraulic fracturing in the Marcellus Shale, because of concerns about contamination of underground water supplies. I think those fears are completely unwarranted, but they are driving significant opposition.

Here's an open letter to the citizens of New York from Jerry Simmons, leader of a royalty owners group based in Tulsa. He explains why the drilling is not a danger, and the economic benefit that is posed by the drilling. Frankly, I hope he fails to change any minds in New York, for the reasons he gives at the end of his letter. I'd just as soon see that money being paid to West Virginia royalty owners. New York will keep burning gas, wherever it comes from.

Climate Action Partnership Loses Major GHG Emitters

The New York Times reports today that

ConocoPhillips, Caterpillar Inc. and BP America have left the U.S. Climate Action Partnership, a coalition of more than two-dozen companies and environmental groups lobbying Congress to pass greenhouse gas emissions cap-and-trade legislation.

One of the reasons appears to be a failure to advocate for a larger role for natural gas use, and in opposition to alleged preferences for coal. I wonder whether it is also a recognition that the public support for climate change legislation is extremely low, and it's possible to stop supporting cap and trade without suffering public relations problems.

Thanks to the Vorys, Sater firm for this lead from their E&E Law Blog

Follow the Money

Proponents of the theory of man-made climate change like to allege that those skeptical of the theory are in the employ of large fossil fuel companies. Most of the skeptic websites that I follow (e.g. climateaudit.org and climate-skeptic.com and wattsupwiththat.com) are clearly not, but I can't speak for everyone out there. It probably is likely that money fuels the fight, for both sides. Getting ahead in academia, and getting grants to continue research and put bread on the table, means toeing the party line of whomever is handing out money. Here is an EPA press release about money being offered for climate studies. Skeptics need not apply.

EPA Awards $17 Million to Support Research on the Impacts of Climate Change Twenty-five universities to explore public heath and environmental facets of climate change WASHINGTON - The U.S. Environmental Protection Agency is awarding nearly $17 million in Science to Achieve Results (STAR) grants to universities across the country to study the consequences of climate change on the air we breathe and the water we drink. “EPA is engaging the academic research community, through these grants, to enable solutions that will both adapt to and mitigate the impact of climate change," said Dr. Paul T. Anastas, assistant administrator for the Office of Research and Development. The agency solicited grants in four areas: Climate Change and Allergies Allergies are responsible for a substantial proportion of healthcare costs in the United States, and chronic allergies have been increasing since 1970. Following on to research showing links between climate and the production and distribution of pollen and mold, the new research being funded will provide information on how climate change influences the production, distribution, dispersal, and potency of allergens produced by weeds, grasses, and trees, and the associated impacts on human health. Climate Change and Air Quality The grants will help people understand how weather variability, land use decisions, and industrial technology could impact ozone and fine particle pollution over the next 40 years. The research will help guide the formation of new air quality management systems that effectively account for climate change and mitigation strategies for air quality. Climate Change and Water Resources Climate change affects temperature, precipitation, surface radiation, humidity, winds, and sea level. The STAR-funded research will help assess the sensitivity of aquatic systems to possible climatic changes over the next several decades. Understanding these changes will be useful for developing regional adaptive strategies to reduce the risk of harmful impacts to water quality and aquatic ecosystems. Climate Change and Carbon Sequestration These grants will investigate safe and effective ways to store and sequester carbon. This research will help determine if injecting carbon dioxide (CO2) deep into the ground threatens the environment and underground water resources. EPA brings leading-edge science to assess the consequences of climate change on human health, ecosystems, and social well being. One of the agency’s goals is to develop information and tools to make assessments on the overall impact of climate change. More information about the grants and the grant awardees: http://www.epa.gov/ncer/climate R040
Note: If a link above doesn't work, please copy and paste the URL into a browser.

More Questions Arise on Accuracy of IPCC Report

Several petitions have been filed with EPA to reconsider their December 15, 2009 finding that greenhouse gases are driving dangerous global climate change. One of the primary grounds for the EPA decision was the report of the International Panel on Climate Change, which has been shown in the past few months to be of dubious reliability. Errors have been reported and come out weekly, steady as a drumbeat. For an excellent summary of the IPCC errors, problems with the Climate Research Unit emails, and other other reasons the EPA may have been a bit hasty in acting, check out the petition of Peabody Coal Co. here. And now Texas is evidently joining the pack.

You can find the petition and other articles and information skeptical of anthropogenic global warming (AGW in the parlance of the climate change debate) here at the Science and Public Policy Institute website.

Manchin Joins Chorus Against Regulating Coal Ash as Hazardous Waste

Ken Ward reports that Gov. Joe Manchin has urged EPA not to regulate coal ash as hazardous waste. Coal ash is not hazardous in the way that environmental professionals think about hazardous substances or hazardous wastes. It is used for structural fills and as an additive in concrete, and can be safely stored in impoundments.

The situation that focused attention on coal ash was the spill that occurred from a TVA impoundment in December of 2008. The primary problems caused by that spill were the mess caused by the ash, not any particular toxicity it exhibits. Better regulation of impoundments might be called for, but a hazardous waste designation would only increase our electricity bills (much higher disposal costs, little beneficial reuse) without increasing our environmental health.

Copenhaver Allows Environmental Groups to Pursue Penalties Even Where Fines Previously Paid to DEP

Last August 18, Judge Copenhaver of the US District Court for the Southern District of West Virginia ruled in Sierra Club et al v. Powellton Coal Co., Civ. Action No. 2:08-1363, that an administrative enforcement action to redress NPDES permit violations would not preclude a citizen suit for the same violations. The principal basis for the decision was that, under West Virginia law, an administrative penalty for NPDES permit violations could not be imposed without the violator's consent. Consequently, the state administrative procedure was not sufficiently like EPA's penalty process, and no immunity from citizen suits was conferred by the state action under Clean Water Act Section 309(g).

Judge Copenhaver has now ruled on competing summary judgment motions, and issued a February 3 decision that the citizens may continue their legal action if there is a realistic prospect that violations will continue notwithstanding the penalties imposed by the DEP. The Court expressly rejected the argument that the citizen plaintiffs' actions usurped DEP's authority. The Court noted that it would "give due regard to the actions previously taken by the WVDEP" and will presumably give credit for the stipulated penalties that Powellton Coal Co was required to pay. If the Court decides to impose additional penalties, the Court laid out the statutory factors it would consider. The Court also addressed permit modifications that were made during the time the permit violations were occurring, which affected the number of violations that were deemed to have occurred.

Judge Copenhaver granted summary judgment as to certain of the plaintiffs' claims, to the extent there was evidence of continuing violations, and left for trial the determination as to whether the remaining allegations qualified as "sporadic or intermittent" violations that could be characterized as continuing violations, and therefore subject to penalties.

Pacific Legal Foundation Files Petition Asking EPA to Reconsider Greenhouse Gas Endangerment Finding

The Pacific Legal Foundation has joined the growing number of organizations that are petitioning EPA to reconsider its finding that greenhouse gases, principally carbon dioxide, are pollutants that should be regulated under the Clean Air Act. The petition is found here. It relies heavily on the emails that were obtained from the Climate Research Unit that indicate a good deal of skulduggery in the development of the alarming predictions regarding global warming. The web posting says in part:

Through its greenhouse gas “endangerment finding,” the EPA bureaucracy has set itself up as the potential overseer for all economic activity that relies on fossil fuels—from agriculture to energy development to transportation, manufacturing, and industrial production.
PLF now is challenging this EPA ruling. In an administrative petition to the agency, PLF argues that the process that yielded the endangerment finding has been called into question by what is popularly known as “Climategate.” Therefore, EPA’s own rules require reassessment by the agency’s Scientific Advisory Board.

Significant revelations suggest that the scientific data that was used to arrive at the endangerment finding may be unreliable. For this reason, as PLF’s petition argues, a formal reconsideration of the endangerment finding must be undertaken.

EPA Webinar to Explain Greenhouse Gas Reporting

Anne Blankenship reports that EPA is offering a webinar that may be helpful to those with air emissions subject to greenhouse gas reporting. She sent along the following from Megan Murphy at the DEP, noting especially the last paragraph, which suggests that efforts will be made to harmonize sate reporting with federal reporting.

This message is your notification of an upcoming webinar, Mandatory Reporting of Greenhouse Gases Rule, Detailed Presentation, offered by EPA on February 24, 2010, 1:00 to 3:00 pm EST (Click here to Register). This webinar is free.

You are receiving this e-mail because your company may have one or more facilities that could be subject to the Environmental Protection Agency’s Mandatory Reporting Rule of Greenhouse Gases (MRR-GHG). The threshold for reporting is 25,000 metric tons or more of carbon dioxide (CO2) equivalent per year, except for certain source categories that are required to report regardless of emissions levels. A summary of the MRR-GHG, developed by EPA’s Office of Atmospheric Programs, is attached.

Subject facilities should have begun collecting data on January 1, 2010, with the first emissions report due on March 31, 2011 for emissions during calendar year 2010. Facilities report directly to EPA under this rule.

Note: the MRR-GHG rule does not cover 2009 emissions and differs from the Emissions Inventory reporting required by the WV Division of Air Quality (DAQ). The WV state Emissions Inventory requires reporting GHG emissions. The DAQ plans to request changes to the West Virginia Code that will allow us to harmonize with the federal requirements in the future.

Megan R. Murphy
GHG Coordinator
WV Department of Environmental Protection
Division of Air Quality

The Sky Continues Not to Fall, and This is Why

The drumbeat grows as more and more distinguished scientists weigh in against the theory that anthropogenic global warming will kill us all.

Charles McElwee Explains Cap and Trade to the West Virginia Legislature

Charles McElwee, one of West Virginia's pre-eminent lawyers and a former partner of mine, was asked by the West Virginia Senate Judiciary Committee to explain the current state of cap and trade, including carbon capture and sequestration. This is the written material that he presented on January 10.

Obama Administration Pushes for Elimination of Fossil Fuel "Subsidies"

One of the ways the Administration hopes to find money to close the deficit, and at the same time increase the competitive position of renewable fuels, is to remove existing preferences and subsidies for fossil fuels. These are such things as depletion allowances, expensing of production costs, and treatment of coal tax payments as capital gains. The Administration's position on fossil fuels has been summarized many places, including the New York Times; its position on coal taxes can be found here.

This is a popular point among proponents of alternative energy sources. A study done last year purports to establish that subsidies for fossil fuels are greater than those for renewables. Of course, to be completely fair, to make an accurate comparison you'd have to eliminate taxes that are only imposed on fossil fuel, such as severance taxes, which are not assessed on renewables, and you'd want to see some comparison between the value of the subsidies in relation to the energy generated. Per unit of energy, I would guess the fossil fuel subsidies and preferences would be much lower than those for alternatives, but it would be interesting to see.

Some Notices of Violation Are Not Appealable, Says EQB

This may not be of interest to anyone other than lawyers, but the West Virginia Environmental Quality Board has ruled that certain notices of violation are not appealable orders. Go-Mart took a protective appeal of a NOV issued by the DEP Division of Water and Waste Management, concerned that failure to challenge the NOV would prevent it from being able to defend itself in any later proceeding based on that NOV.

The Board concluded that the NOV did not contain the word "order", had no findings of fact, and did not have a time limit for the company to complete remedial action. As such, it was not an appealable action, and companies do not have to appeal every NOV issued in order to preserve defenses. Not earthshaking, but helpful to those of us who practice in the area, and are always worried about the possibility of having waived appeal rights.

The order can be found here.

Environmental Groups File Notice of Intent to Sue DEP; DEP Responds With Permit Applications

The West Virginia Highlands Conservancy and the Rivers Coalition have given the DEP notice that they will sue over the failure of DEP to obtain NPDES permits for discharges from abandoned mines that have defaulted to the state. There's a posting here on the Conservancy's website, but the 60 day notice is not found there. Here are some snippets from the posting:

The West Virginia Highlands Conservancy and the West Virginia Rivers Coalition have given the West Virginia Department of Environmental Protection notice that they intend to file suit if the agency does not prevent water pollution from abandoned mines that it now controls. There are well over one hundred such mines.
.........

In January, the Conservancy and the Rivers Coalition gave the DEP the required notice. If the agency does not correct its violations, the groups could then go to court to require the DEP to do its duty.

I just received this notice of proposed NPDES permit issuance to the DEP Special Reclamation from . . . the DEP. I am assuming that the agency is responding to the notice of intent by starting to issue itself NPDES permits for abandoned mine discharges:

Notice is hereby given that WVDEP OFFICE OF SPECIAL RECLAMATION, 601 57TH St S.E., Charleston, WV 25304-2345 has submitted an application for the issuance of Article 11 /WVNPDES Permit No. WV10235497 to the Department of Environmental Protection, 105 South Railroad St, Philippi, WV 26416-1150 in order to operate a water treatment facility. The operation will discharge into an unnamed tributary of Squires Creek of Three Fork Creek of Tygart Valley of Monongahela River and is located 4.0 (miles), northwest of Kingwood , in Preston District of Preston County, Longitude 79? 45' 00” and Latitude 39? 28'

EPA Releases Coal Ash Impoundment Report

EPA has released a report on an investigation into the safety of impoundments holding coal ash in slurry form. This is not the anticipated decision by EPA on whether coal ash should be regulated as a hazardous waste; it is basically a dam safety study. Here's part of the press release.

WASHINGTON – The U.S. Environmental Protection Agency today released action plans developed by 22 electric utility facilities with coal ash impoundments, describing the measures the facilities are taking to make their impoundments safer. The action plans are a response to EPA’s assessment reports on the structural integrity of these impoundments that the agency made public last September. Coal ash was brought prominently to national attention in 2008 when an impoundment holding disposed ash waste generated by the Tennessee Valley Authority broke open, creating a massive spill in Kingston, TN, that covered millions of cubic yards of land and river and is regarded as one of the worst environmental disasters of its kind in history. Shortly afterwards, EPA began overseeing the cleanup, as well as investigating the structural integrity of impoundments where ash waste is stored.

If you go to the hyperlink above, you can see the reports for each of the impoundments studied, as well as a special report on the Philip Sporn plant.

US and West Virginia Study Carbon Capture and Sequestration

Joe Manchin and several other governors met with Barack Obama yesterday to talk about energy and the environment. Here is Ry Rivard's report from the Daily Mail on what happened. It's unlikely Gov. Manchin, despite his considerable sales ability, was able to persuade the president to feel the love for coal. According to an EPA press release, most of the emphasis will be on renewables and biofuels. However, there was some talk about supporting carbon capture and sequestration, and creation of a task force to study the matter.

Here in West Virginia, former Secretary of the DEP Stephanie Timmermeyer is heading up a committee that is investigating the promises and possibilities of carbon capture and sequestration. Attached are copies of the November reports of the Feasibility Subcommittee, the Geology and Technology Subcommittee, and the Legal Subcommittee.

SEC Adopts Guidance on Reporting Climate Change Effects on Businesses

The Securities and Exchange Commission (SEC) adopts rules that apply to publicly-owned companies, including rules that specify what they have to report to the investing public. A couple days ago the SEC adopted guidance that explains how companies should report the legal and business effects of climate change. A press release is here. An explanation of the guidance is provided by Dustin Till at Marten Law.

Here are some salient points form the press release:


The interpretive release approved today provides guidance on certain existing disclosure rules that may require a company to disclose the impact that business or legal developments related to climate change may have on its business. The relevant rules cover a company's risk factors, business description, legal proceedings, and management discussion and analysis.
"We are not opining on whether the world's climate is changing, at what pace it might be changing, or due to what causes. Nothing that the Commission does today should be construed as weighing in on those topics," said SEC Chairman Mary Schapiro. "Today's guidance will help to ensure that our disclosure rules are consistently applied."

Specifically, the SEC's interpretative guidance highlights the following areas as examples of where climate change may trigger disclosure requirements:

Impact of Legislation and Regulation: When assessing potential disclosure obligations, a company should consider whether the impact of certain existing laws and regulations regarding climate change is material. In certain circumstances, a company should also evaluate the potential impact of pending legislation and regulation related to this topic.

Impact of International Accords: A company should consider, and disclose when material, the risks or effects on its business of international accords and treaties relating to climate change.

Indirect Consequences of Regulation or Business Trends: Legal, technological, political and scientific developments regarding climate change may create new opportunities or risks for companies. For instance, a company may face decreased demand for goods that produce significant greenhouse gas emissions or increased demand for goods that result in lower emissions than competing products. As such, a company should consider, for disclosure purposes, the actual or potential indirect consequences it may face due to climate change related regulatory or business trends.

Physical Impacts of Climate Change: Companies should also evaluate for disclosure purposes the actual and potential material impacts of environmental matters on their business.

EPA Extends SPCC Compliance Date

EPA recently announced that it would be extending the compliance date for Spill Prevention Control and Countermeasures (SPCC) changes that were finalized in December:

On November 13, 2009, EPA amended the Spill Prevention Control, and Countermeasures (SPCC) rule. The amendments completed the SPCC action proposed on October 15, 2007 (72 FR 58378), finalized on December 5, 2008 (73 FR 74236), and for which the Agency considered public comments again in February 2009 (74 FR 5900, February 3, 2009). However, EPA recognizes that because of the changes in this action, and specifically provisions that have been removed from the December 2008 Amendments, facilities may need additional time to comply with the SPCC amendments. Because of the uncertainty surrounding the final amendments to the December 5, 2008 rule and the delay of the effective date, the Agency will propose to extend the compliance date.