Selected Environmental Actions Posted on the Fall 2018 Unified Agenda of Regulatory and Deregulator Actions

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The Office of Information and Regulatory Affairs, housed in the Office of Management and Budget, has issued the Fall 2018 Unified Agenda of Regulatory and Deregulatory Actions to be taken over the next several months by federal executive departments and agencies. This report will highlight some of the environmental actions, to be proposed or finalized soon by these agencies. Eventually, the Agenda will be published in the Federal Register.

1.    Environmental Protection Agency (EPA)

EPA, of course, has listed by far the largest number of actions. For instance, EPA’s agenda lists 92 separate actions to be taken under its Clean Air Act (CAA) authority. As an example, EPA reports that it will issue a Notice of Proposed Rulemaking (NPRM) in May 2019 of its proposals to increase consistency and true transparency in considering the cost benefit of its proposed rules, and review the standards of performance for new, modified, and reconstructed sources of greenhouse gas emissions by means of an NPRM to be issued in November 2018.

In other matters:

  • A revised definition of “waters of the US” under the Clean Water Act (CWA) will be proposed in October 2018 that would revive the pre-2015 regulatory definition of this term.
  • An NPRM will be published in June 2019 to consider changes to EPA’s existing CWA Section 404 permit reviews (of Corps of Engineer permits).
  • An Advanced NPRM will be published in December 2018 regarding revised Resource Conservation and Recovery Act (RCRA) standards for the management of liquids in landfills, namely, municipal solid waste landfills.
  • In July 2019, EPA will publish an NPRM regarding the need to develop financial responsibility rules under  the Comprehensive Environmental Response, Compensation, and Liability Act, known also as Superfund (CERCLA) Section 108(b) for facilities that are most likely to be involved in CERCLA cleanups, in particular petroleum refineries and coal products producers. The agency has declined to issue such rules for the hard rock mining industry, a decision that is being challenged in the courts.
  • In October 2018, EPA will publish an NPRM regarding the revised CERCLA and Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA) reporting requirements for air emissions from animal waste, as the Congress has amended the law to permit this to be done.
  • In November 2018, EPA will publish an NPRM regarding the RCRA regulation and notification requirements affecting the disposal of coal combustion residue (CCR) wastes that are placed in units closing for cause. This will be followed by the publication of a final rule in June 2019 to modify the CCR Disposal rules promulgated In April 2015.
  • In November 2018, EPA will publish an NPRM under RCRA regarding the revision of the existing “flash point method” of determining a hazardous waste characteristic.
  • In January 2019, EPA plans to publish a final rule regarding its revisions to the January 2017 CAA Section 112 Risk Management Program rules.
  • In September 2019, EPA plans to issue this final rule adding aerosol waste cans to the 40 C.F.R. Part 273 RCRA Universal Waste rules. This action should lessen the regulatory burden placed on retail stores.
  • In September 2019, EPA plans to issue a final rule regarding its decision whether to propose additional regulatory requirements relating to the spill prevention and reporting requirements under Section 311 of the CWA. EPA has indicated that it believes that no such action is warranted at this time.

2.    U.S. Army Corps of Engineers (ACOE).

The Corps has significant regulatory and enforcement authority under the CWA. Several actions have been listed by the ACOE including:

  •  In June 2019, the Corps will publish an NPRM regarding the ACOE’s administrative appeal procedures. In the wake of the Supreme Court’s ruling in U.S. Army Corps of Engineers v. Hawkes, ACOE wants to amend these rules to require that a party exhaust its administrative appeal remedies before it can appeal a CWA jurisdictional determination to the federal courts.
  • In December 2018, the Corps will issue an NPRM by which it intends to update its natural disaster response procedures affecting flood control projects following its experience with several recent hurricanes. The Corps is seeking ways to enhance its flexibility in responding to these emergencies.
  • In June 2019, the Corps, in response to Executive Order 13782, will consider proposals to previse and streamline aspects of its CWA nationwide permitting program affecting domestic energy production.

3.    U.S. Coast Guard

  • In December 2018, the Coast Guard will publish an NPRM to amend its vessel financial responsibility rules to include tank vessels greater that 100 gross tons. The reporting requirements will be enhanced and will reflect current “best practices”.
  • Because of the passage of time, in October 2018, the Coast Guard will issue a Notice of Withdrawal of a 1996 proposed rule that would address tank vessel response plans for hazardous substances.

4.    Department of the Interior

  • In September 2019, the Department of the Interior will issue an NPRM to discuss proposals to streamline its NEPA procedures by increasing the number of categorical exclusions and to update the Department’s existing rules.
  • The Department’s Bureau of Environmental Management (BOEM), which has significant offshore responsibilities, will issue an NPRM in October 2018 to revise and modify its financial assurance rules for offshore lessees.
  • In March 2019, BOEM will issue an NPRM seeking comment on its proposals to deregulate and streamline renewable energy rules that apply offshore, without decreasing environmental safeguards.
  • In December, the Department’s Bureau of Safety and Environmental Enforcement (BSSE) office will issue final rules revising its Blowout Preventer and Well Control requirements. These are rules affected by the 2010 Deepwater Horizon oil spill.
  • In November 20018, the Fish and Wildlife Service will release an NPRM which will propose to establish regulations defining the scope to the Migratory Bird Treaty Act’s application to the incidental taking of birds protected by the Act resulting from an otherwise lawful activity.

5.    Department of Transportation

  • The Department’s Pipeline and Hazardous Material Safety Administration (PHMSA) will issue a final rule in November 2018 that will expand the applicability of comprehensive oil spill response plans requirements to an entire train that is shipping flammable liquid energy products. The agency is interested in developing rules to mitigate the effects of potential train accidents involving the release of these products into the environment.

6.    Council on Environmental Quality (CEQ)

  • The CEQ will release an NPRM in February 2019, seeking comments on its proposals to amend its NEPA rules (which apply throughout the federal government) to enhance and modernize the Federal environmental review and authorization process.