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The Insider

EPA Advances Affirmative Rules While Fighting California’s Strict Policies

EPA is advancing affirmative environmental protection rules targeting lead contamination of drinking water and aiming to boost biofuels production, even as the Trump administration escalates a fight with California in a bid to block its strict vehicle greenhouse gas rules and other policies.

The clash with the Golden State has dominated environmental headlines and looks unlikely to resolve or deescalate anytime soon, as California regulators are now seeking to challenge EPA’s ultimatum over the state’s alleged backlog of inadequate Clean Air Act state implementation plans (SIPs), which are blueprints for attaining federal air standards. The state is countering with the argument that it is up to EPA, and not state officials, to address that backlog:

California Fights EPA’s SIP Threat By Putting Onus On Agency
California is fighting EPA’s threat to withhold federal highway funds from the state unless it acts quickly to submit “approvable” state implementation plans (SIPs) for attaining agency air standards, claiming the onus is on EPA to review a backlog of submitted SIPs and to approve stricter federal air rules that will ensure the SIPs succeed.

EPA has invoked both California’s SIP backlog and its alleged water pollution issues in accusing state officials of neglecting their environmental-protection duties. But observers see a clear thread between those claims and the battle over vehicle GHG emission standards. California is leading opposition to the White House’s proposed rollbacks of federal standards both in court, and with a competing stricter GHG rule than EPA that has already won over some automakers:

California-EPA Spat Over Vehicle GHG Rules Explodes Into Major Fight
Tensions between California and the Trump administration over auto greenhouse gas rules that simmered for more than a year have exploded into an all-out legal and policy fight, with the two sides ramping up their attacks including EPA’s threats to revoke the state’s delegated water law authorities and yank federal highway funds.

Even though the Trump administration’s fight with California hinges in part on EPA’s push for weaker regulations, the agency is taking other steps to tighten some rules -- including this week’s LCR proposal. The drinking water rule, which EPA Administrator Andrew Wheeler rolled out Oct. 10 in Green Bay, WI, would add new mandates for sampling lead levels in water, along with changes to treatment requirements and a method of prioritizing lead service lines for replacement:

EPA Proposes Slew Of Changes To Lead And Copper Rule Requirements
EPA is proposing a slew of changes to its Safe Drinking Water Act lead and copper rule (LCR) that it says are intended to target the reduction of lead in drinking water in communities most at risk, including a first-time sampling requirement for schools and revisions to other sampling requirements, as well as increased treatment and oversight.

The proposal is already drawing opposition from environmentalists because it would slow the rate of service line replacement, from 7 percent of lead lines annually to 3 percent. But EPA officials say that when the proposed rule’s provisions are taken together, they will lead to an overall reduction in lead exposure that is much greater than the current approach.

Meanwhile, EPA is floating further changes to how it administers the renewable fuel standards, the latest in a line of revisions to the policy as the agency and President Donald Trump struggle to satisfy requests from both refiners and biofuels backers.

A senior agency official says EPA and the Agriculture Department plan to formally issue “in the next week or so” a supplemental proposal to raise statutory biofuel blending volumes, starting with the pending final 2020 RFS, to compensate for volumes lost to small refinery exemptions:

EPA Unveils Trump Plan To Hike RFS Targets To Compensate For Waivers
EPA is moving to boost renewable fuel standard (RFS) biofuel blending targets to compensate for dozens of RFS compliance waivers issued by the agency to small refiners, part of President Donald Trump’s promised “giant package” of aid to farmers and biofuel producers who claim the waivers damage their livelihoods.

Farmers and biofuels groups have slammed the Trump administration for issuing many more waivers from RFS requirements than its predecessors, leading to the president’s promised “giant package” of reforms in their favor. Yet the announcement has drawn fresh opposition from the refinery sector, underscoring the inherent tension between those interests in setting RFS targets.

Meanwhile, Trump on Oct. 9 signed two new EOs limiting how EPA and other agencies can use regulatory guidance in their enforcement actions. In his speech announcing the orders, he specifically targeted EPA’s past implementation of the Clean Water Act as excessive:

Trump Faults EPA With Release Of Orders Limiting Guidance, Enforcement
President Donald Trump has issued two executive orders (EOs) to force EPA and other agencies to make guidance documents and other internal policy memos available to the public and bar them from enforcing any policies they have not made publicly known in advance, citing several EPA enforcement efforts as “abuse” of such documents.

One of the EOs requires agencies to put guidance documents “on easily searchable websites,” and to seek public input “on the most important guidance they issue,” with citizens able to ask agencies to withdraw guidance they believe is flawed, while the second prohibits EPA and other agencies from enforcing rules they have not made publicly known in advance, according to a White House press release.

Inside EPA will continue to bring our subscribers in-depth coverage of the Trump administration’s regulatory agenda, along with its legal battles against California and other critics.