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The Insider

As Wehrum Departs, EPA Air Office Faces Full Plate Of Pending Rules

Trump EPA air policy chief Bill Wehrum is departing the agency at the end of this month amid persistent allegations of ethics violations related to his prior industry clients, and his exit is raising questions about the fate of a suite of high-profile deregulatory air and climate policies.

Wehrum’s resignation as assistant administrator of the Office of Air & Radiation (OAR) officially takes effect June 30, and it comes just days after his office issued the final Affordable Clean Energy (ACE) power sector climate rule that is a narrow replacement for the Obama-era Clean Power Plan:

In Surprise, EPA Announces Departure Of Air Policy Chief Wehrum

In an unexpected move, EPA has announced that air chief Bill Wehrum is departing at the end of this month, potentially raising questions about the progress of major air and climate rollbacks that EPA has been advancing under his watch.

The Trump administration will now shift to legal defense of ACE, with a much heavier involvement in that effort by the Justice Department. However, OAR is still tasked with completing sundry deregulatory policies regarding vehicle greenhouse gas standards, biofuels production requirements, emissions permitting and standards for criteria pollutants and air toxics.

Despite the lengthy list of rules still to be finished, many industry and other observers are downplaying the implications of Wehrum’s departure for EPA’s broader agenda:

Many Observers Downplay Impact Of Wehrum’s Exit On EPA Agenda

Several industry and other observers are downplaying the implications of Bill Wehrum’s imminent departure from the helm of EPA’s air office on the Trump administration’s broader deregulatory agenda, given that numerous rollbacks of air toxics standards, air permitting and vehicle greenhouse gas limits are already underway.

However, this view is not universal, with one former agency official saying Wehrum is “impossible to replace” due to his Clean Air Act expertise, and that his exit could slow action on a number of issues.

Just days before his resignation, EPA issued a proposed rule to scrap the agency’s long-standing policy that “major” sources of air toxics should always be subject to strict emissions controls:

EPA Faces Legal Risk With Rationale To Undo ‘Once In’ Air Toxics Policy

EPA’s legal rationale for its proposal to scrap the long-running “once in, always in” (OIAI) policy, which mandates that “major” air toxics sources always be subject to strict emissions controls, would bar the agency from reviving the policy, but the agency faces a legal battle over the rule and if it loses that fight a future administration could reverse it.

The proposal argues that the 1995 “once in, always in” policy is proscribed by the Clean Air Act, and that there is no ambiguity in the law that would allow its continued application.

Environmentalists are already challenging this argument in a lawsuit over the agency’s 2018 non-binding guidance that rescinded the “once in” policy. An appellate judge during April 1 oral argument noted he was “inclined to agree” with the challengers’ position, if the court were to reach the merits of the case.

One unfinished issue from the original ACE proposal is a plan that would essentially exempt coal plants complying with the climate rule from strict new source review (NSR) air permitting requirements that would otherwise apply because they are undergoing a major modification.

EPA has pledged to finalize this policy in the coming months, amid sharp criticism from environmentalists that the change would allow coal plants to operate more often and actually increase both GHG and conventional air emissions.

The power sector NSR changes are among several efforts to alter the air permitting program that will remain outstanding after Wehrum leaves. While the agency has issued a series of guidance documents that seek to pare back NSR requirements, it had also been planning a “second wave” of NSR actions that would codify many of the rollbacks in regulation.

Those follow-on policies might now face questions, given that one coal industry source described Wehrum as the “zen master of NSR.”

On the mobile source front, EPA and the Transportation Department are jointly crafting a final rule to largely freeze Obama-era GHG and fuel economy standards for passenger vehicles. Wehrum gave a defense of the plan during a high-profile House oversight hearing earlier this month:

Hearing Shows Battle To Win Debate On Effects Of Trump Vehicle Plan
Last week’s House oversight hearing on the Trump administration’s planned rollback of vehicle greenhouse gas and fuel economy rules is underscoring that supporters and detractors of the policy are locked in an ongoing substantive and political battle over the rule’s environmental, safety and economic effects.

Wehrum told reporters following the June 20 hearing that it would be “weeks” before a draft final rule goes to the White House for inter-agency review. Given that timeline, many observers now believe the rule might not come out until August or even September.

While some say the contents of the rule might already be “baked,” it is possible that Wehrum’s departure from EPA could slow the measure’s release even further. That could be important given the Trump administration’s desire to complete at least the initial stages of litigation over the rule during President Donald Trump’s current four-year term.

Much less certain is a long-pending plan to ease Obama-era production limits on high-emitting “glider” trucks -- given that the proposal drew significant fire from states, environmentalists and major parts of the trucking sector over concerns that it would harm both air quality and industry competitiveness.

A Trump EPA initiative to craft updated nitrogen oxides limits for heavy-duty trucks also appears to be moving in the slow lane. EPA is slated to begin an in-depth technical study of the issue this fall, meaning a proposal might not come until sometime in 2020, and a final rule might be pushed until after the next presidential election.

The upcoming election is also weighing heavily on EPA’s pending reviews of its national ambient air quality standards (NAAQS) for ozone and particulate matter (PM). The agency had hoped to complete both reviews by the end of 2020, but the timeline is facing major questions, in part because the agency’s scientific advisers say they lack the expertise to provide input on the matter after Trump officials disbanded a panel on the PM standard.

Now, Wehrum’s departure as OAR chief could further underscore the questions surrounding the pending NAAQS reviews.

Also on OAR’s regulatory plate are an array of policies related to biofuels and the agency’s renewable fuel standard (RFS). Sources say that EPA’s proposed 2020 biofuel requirements under the program could be signed in the coming days, ahead of a Nov. 30 requirement to finalize the rule.

However, Trump has reportedly directed EPA chief Andrew Wheeler to reconsider the agency’s policy that led to a ramping up of RFS compliance waivers for small refiners:

Trump directs EPA To Reconsider RFS Small Refiner Waiver Policy
President Donald Trump has reportedly directed EPA Administrator Andrew Wheeler to reconsider the agency’s policy that led to a ramping up of renewable fuel standard (RFS) waivers for small refiners, according to news reports that say Trump asked for the review following his recent visit to the Midwest.

It remains unclear how or whether that issue will factor into either the 2020 RFS rule or an upcoming “reset” of the program that will cover 2021-2022.

In addition, EPA faces concern over its proposal to scrap the Obama-era determination that it is “appropriate and necessary” to regulate power plants’ air toxics. While that finding was a prerequisite to the 2015 mercury and air toxics standards (MATS), Trump officials are proposing to leave those rules in place even as they rescind the regulatory finding.

Yet many in the industry want to leave MATS alone, given that it has largely been implemented. Thus, it is not clear how EPA would respond to such comments in a final rule on the issue, or whether the proposal will be deprioritized given time constraints and Wehrum’s resignation.

In a somewhat related matter, EPA has also pledged to conduct a rulemaking that would revisit how it conducts cost-benefit reviews for air policies, amid conservatives’ complaints that EPA too often relies on “co-benefits” of pollution reductions beyond those targeted in a regulation.

The timeline for such a measure is not clear, and it is uncertain whether Wehrum’s departure might slow or lower the priority of the effort.