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The Insider

Unified Agenda Update To Clarify Deadlines For Key EPA Policy Rollbacks

The Trump administration's pending update to its Unified Agenda of upcoming rules is likely to delay deadlines for key EPA regulatory rollbacks while retaining target dates for others, including changes to its coal ash disposal program and repeal of the Clean Power Plan (CPP).

The agenda, typically updated in the spring and fall of each calendar year, includes entries for all of the agency's major in-the-works policies across its air, waste, water, enforcement and other offices. Each entry typically includes a paragraph detailing what the policy aims to achieve, as well as a projected date for publishing either a proposed rule, a final rule, or both. It also lists projected dates for advance notices of proposed rulemaking, or more-nascent policies prior to developing a formal proposal.

Labor Secretary Alexander Acosta hinted that the spring 2019 update to the Unified Agenda is coming soon. In remarks before a May 1 hearing of the House Education & Labor Committee, he referred to “[t]he regulatory agenda that is forthcoming . . .”

Although Acosta was addressing labor policies, the agenda covers all agencies and will provide important details on EPA's timelines for a host of major rule rollbacks.

EPA has already missed its non-binding self-imposed January deadline for finalizing a rule that would undo an Obama-era strengthening of the Clean Air Act risk management plan (RMP) program, which aims to reduce accidental chemical releases from industrial facilities.

Last fall's regulatory agenda included the January target date, and industry groups are growing nervous about facing legal liability if the agency has still not finalized the rollback of the stricter requirements before they take effect next year.

Fearing Litigation Delays, Industry Urges EPA To Finalize RMP Revisions
Groups representing major industries are urging EPA to quickly finalize its rollback of an Obama administration rule that strengthened the Risk Management Plan (RMP) facility accident prevention program, fearing expected litigation over the rollback could extend beyond some of the existing RMP rule’s compliance deadlines.

Given that EPA has already missed the January target deadline and has not yet send the final rule for mandatory White House Office of Management & Budget (OMB) pre-publication review, the imminent spring Unified Agenda should set a new goal date for the rollback.

EPA's Office of Air & Radiation (OAR) is overseeing the RMP rule, and is also running late on issuing a proposal to amend its Clean Air Act new source review (NSR) permitting policies.

The agency took initial steps to implement the policy change in a March 13, 2018, guidance memo that enables industry permit applicants to consider emissions decreases, as well as increases, at the first step of the NSR permitting process. If the applicants predict a net emissions decrease at this stage, they do not need to undergo a more complete and onerous “netting” analysis that takes into account other nearby sources. Prior to the memo, companies could not consider project emissions decreases in the first NSR review step.

EPA generally considers guidance memos not to be final agency actions subject to judicial review, and said it would formalize the netting policy in an upcoming rulemaking. The pending proposal that the agency sent for OMB review on March 21 would take that formal step. OMB review typically takes up to 90 days, but can be longer or shorter, depending on the circumstances. EPA has already missed its prior non-binding target of issuing the proposal in February.

EPA sends NSR air permit ‘netting’ proposal for OMB review
EPA has sent for White House Office of Management and Budget (OMB) review its proposal to revise Clean Air Act new source review (NSR) permit “project emissions accounting,” or “netting,” one of several piecemeal NSR reforms that critics say will make it easier for companies to avoid strict air permits.

Similarly, the agency is months behind schedule for issuing its “phase two” revisions to the Obama EPA's Resource Conservation & Recovery Act coal ash disposal program.

According to its website, OMB started review of EPA’s phase two revisions to the coal ash rule on May 7, following up on a 2018 rulemaking that the agency said represented “phase one, part one” of its plans to rework the Obama-era ash disposal policy. The fall Unified Agenda aimed for the agency issuing its proposal in December 2018. The fact EPA only sent the rule to OMB for review this month means the spring agenda update will have to set a new deadline.

EPA Seeks OMB Approval Of Ash Rule Revisions Following Adverse Ruling
EPA has sent for White House pre-publication review its second round of revisions to the Obama-era waste rule governing coal ash, a proposal that will establish a first-time nationwide ash permit program and potentially respond to an adverse court ruling that found several provisions of the 2015 rule too weak.

The phase two rule will propose a federal ash permit program and to address “all of the remaining matters” from industry petitions for reconsideration of the 2015 RCRA rule, as well as litigation over its merits. The rule could be a vehicle for the agency’s first substantive response to a 2018 U.S. Court of Appeals for the District of Columbia Circuit ruling that found the original ash rule as issued by the Obama administration was too lenient.

Although several major regulatory rollbacks are now months late under the agency's own target dates, EPA has said that others remain on track -- and that could be reflected in the spring Unified Agenda if the agency reiterates the deadlines it has already set.

For example, the agency in recent D.C. Circuit legal filings has said that its revised goal for repealing the CPP greenhouse gas rule for existing power plants and replacing it with the less-stringent, narrower Affordable Clean Energy (ACE) rule is June. The ACE final rule is currently under OMB review, making next month's deadline possible to achieve.

In the fall Unified Agenda, EPA had projected a March deadline for issuing the final rule and the agency missed its deadline. But more recently it has reiterated its plan for meeting the delayed June deadline, and the spring regulatory agenda will likely reflect that.

White House Starts ACE Review, Sticking To June Deadline For Final Rule
White House regulatory officials have started interagency review of EPA’s draft final Affordable Clean Energy (ACE) rule addressing greenhouse gases from existing power plants, the last step before the rule can go final, a move that suggests the agency remains on track to complete the rule by the end of June.

And, for now, EPA and the Army Corps of Engineers appear on track for their plan to repeal and replace the Obama-era Clean Water Act (CWA) jurisdiction standard before 2020.

The fall regulatory update said the agencies were aiming to issue a final rule in September. The agencies issued the proposed version of the rule in December and took public comment, which will inform the final version of the rule. It is expected to significantly narrow the CWA's reach compared to the 2015 standard that industry and GOP lawmakers said was too broad.

Environmentalists counter that the replacement proposal is unlawfully weak, and they are already outlining the arguments they will make in litigation over the final version:

Environmentalists Preview Legal Attacks On Narrow CWA Jurisdiction Rule
Environmentalists and Democrats are using their comments on EPA’s proposed narrower Clean Water Act (CWA) jurisdiction rule to preview the legal attacks they will make on any final version in guaranteed litigation, saying the rule has a host of procedural flaws, breaks with Supreme Court precedent, and exceeds the agency’s authority.

Even though EPA and the Corps have not yet submitted the final narrower CWA rule for OMB pre-publication review, they still have several months to do so and meet the general 90-day review guideline before issuing a final rule and still meet the September goal. As a result, it could be one of the items in the Unified Agenda where they retain the fall agenda's deadline.