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The Insider

EPA Concludes 2019 Business With Flood Of Regulatory Activity

EPA has released a long list of proposed and final measures as it winds down its 2019 work ahead of the holidays, including new regulations governing coal ash, toxic substances and groundwater pollution from perfluorinated chemicals along with the completion of long-awaited annual biofuel targets and promulgation of its facility safety rule rollback.

The flurry of regulatory activity sets the stage for fresh legal and policy battles in the new year, just as Congress has left Washington, D.C., for its holiday break after passing a fiscal year 2020 spending deal for EPA and other agencies.

First on the agency’s agenda this week was finishing its annual renewable fuel standard (RFS) rule, setting biofuel targets for 2020, released early on Dec. 19. It was not without drama, as the agency missed its statutory deadline for the rule by three weeks and drew loud complaints from biofuel supporters:

EPA Says 2020 RFS Shift Boost Biofuels But Ethanol Advocates Doubtful
EPA says its just-issued 2020 renewable fuel standard (RFS) includes a policy shift aimed at better compensating for biofuels production volumes that will likely be lost to small refiner waivers next year, but ethanol advocates doubt the agency will deliver on its promise because it has “a poor track record” of accounting for lost biofuels production.

The RFS volumes rule seeks to compensate for biofuel production expected to be lost to compliance waivers for small refiners in the coming year, but biofuel groups and their Capitol Hill supporters say its formula for calculating those amounts will lead to under-counting.

Specifically, it retains a measure, floated in a supplemental proposal, that relies on a three-year average of volumes the Department of Energy (DOE) recommended EPA waive from the 2016 through 2018 compliance years of the RFS.

But EPA has historically waived far more blending volume than DOE suggested, leading to skepticism among biofuels producers that the rule will provide them enough relief. The producers blame the high number of waivers granted under the Trump administration for “destroying” demand for their product, a charge refiners deny.

During a press call, a senior EPA official conceded the commitment to follow DOE advice on small refiner waivers is non-binding. “We are hewing as closely as possible” to the DOE position, in order to ensure the 15 billion-gallon commitment for corn ethanol is met, the official said.

But that promise has gotten a cold reception from the ethanol sector and its supporters, including farm-state lawmakers. “Once again, EPA is playing games and not helping President Trump with farmers,” said Sen. Charles Grassley (R-IA), arguing that the rule still does not reflect what the president agreed to earlier with Grassley and others at a Sept. 12 meeting on the 2020 RFS.

Also on Dec. 19, EPA formally published its final rollback of Obama-era facility safety standards, drawing an immediate lawsuit from critics:

As RMP Rule Promulgated, Groups Sue Over EPA’s Facility Safety Rollback
A coalition of environmentalists has filed suit against EPA’s rollback of an Obama-era regulation tightening facility safety mandates on the same day the measure was promulgated, arguing the Trump administration has removed nearly all disaster-prevention measures and weakened many of the other protections that were in the 2017 rule.

“The EPA’s rollback of life-saving components of the Chemical Disaster Rule is not just unlawful, it is irresponsible,” Earthjustice attorney Emma Cheuse says in a Dec. 19 press release. “Instead, EPA should do its job and ensure that chemical companies do everything in their power to keep surrounding communities safe and avoid a worst-case scenario.”

The new rule rescinds all of the Obama rule’s major amendments to the accident prevention program, retracting mandates that would have required third-party audits after an incident, consideration of inherently safer technologies, a root-cause analysis after an incident or a near miss and broad public disclosure of documents after an incident.

While the just-filed lawsuit provides no details of the groups’ likely arguments, legal experts have indicated it will likely focus on the adequacy of EPA’s legal justifications for reversing course and contradictions with the earlier rule, as well as the relevance of 2018 litigation that invalidated a Trump administration measure to delay compliance deadlines in the Obama-era rule.

On the same day, EPA issued its long-awaited proposal to set up a permit regime for coal ash disposal sites in states that have not developed their own programs:

EPA Proposals Coal Ash Permit Rule Limited, At First, To ‘High-Hazard’ Sites
EPA is proposing to require only a subset of “high hazard” coal ash disposal sites to seek permits immediately under its long-awaited Resource Conservation & Recovery Act (RCRA) rule establishing a nationwide permit program for the facilities, while deferring action on all others to an unspecified point in the future.

EPA’s decision to defer action on sites not deemed as having a “high hazard” is drawing strong criticism from environmentalists, who have already threatened to challenge a host of other provisions. “Today's rule is yet another dangerous policy developed by the Trump administration at the urging of polluters,” Earthjustice said in a statement.

The permitting proposal is a first step toward replacing the current enforcement structure for the 2015 RCRA ash-disposal standards that relies solely on citizen suits rather than direct government oversight.

EPA Administrator Andrew Wheeler signed that proposal alongside a separate final rule approving Georgia’s application to operate its own ash-permit program.

On Dec. 20, the agency floated two new plans under the revised Toxic Substances Control Act (TSCA) -- its framework for regulating new chemicals under the law and a list of 20 existing chemicals it will review for possible regulation:

EPA Updates New Chemicals Approach But Retains Controversial Provisions
EPA has released its updated “working approach” for determining whether new chemical applications meet the toxics law’s “unreasonable risk” standard, retaining controversial provisions over its use of interim enforcement orders and worker protections even as it sought to provide explanations absent from the 2017 version of the document.

The agency’s approach appears unlikely to satisfy environmentalists’ concerns. “We have been extremely troubled by the steady trend toward less meaningful scrutiny of new chemical risks and reduced protection of health and the environment in EPA’s TSCA premanufacture notice (PMN) program,” Robert Sussman, counsel to Safer Chemicals Healthy Families, told EPA’s recent public meeting, according to comments recently posted to EPA’s docket.

Struggling With First Reviews, EPA Lists Next 20 Chemicals For TSCA Study
Complying with statutory mandates, EPA has formally listed the next 20 existing chemicals it will review for possible regulation under the revised Toxic Substances Control Act (TSCA), even though the agency continues to struggle to meet the law’s deadlines for reviewing the first 10 substances.

The 20 newly-announced candidate chemicals are to be reviewed as part of the law’s program for studying and potentially regulating substances already in commerce. Release of the list means EPA is complying with TSCA’s deadline to identify a new slate of substances for high-priority risk evaluation, even though it has struggled to finish reviews of the first 10 chemicals it identified.

Included on the new list are including formaldehyde, 1,3-Butadiene, 1,1,2-Trichloroethane and others. The inclusion of formaldehyde is especially controversial because EPA shifted its long-running assessment of formaldehyde from its Integrated Risk Information System program within the agency’s research office to the TSCA program.

The companion proposal on review of new chemicals updates a November 2017 “working approach” for determining when the substances pose an “unreasonable risk,” though the document continues some practices that have drawn the ire of environmentalists and public health advocates.

For example, these groups have criticized EPA’s use of consent orders and Significant New Use rules to address potential uses of new chemicals, arguing these steps are not sufficiently protective.

On the same day, EPA unveiled a new guidance for cleaning up groundwater contamination from per- and polyfluoroalkyl substances (PFAS), though it is facing criticism from several groups:

Despite Criticism, EPA Retains PFAS Groundwater Guide’s Cleanup Levels
EPA has issued a final interim guidance for addressing per- and polyfluoroalkyl substances (PFAS) in groundwater, adhering to the screening level and cleanup goal it proposed earlier this year and largely rejecting wide-ranging criticisms from environmentalists, states and industry over alleged deficiencies.

The new guide calls for applying a screening level of 40 parts per trillion (ppt) for the two most studied PFAS -- perfluorooctanoic acid (PFOA) and perfluorooctanesulfonate (PFOS) -- to determine if the levels of contamination warrant further investigation at a site.

Despite a barrage of comments on the draft document, with some pushing for stronger levels and others for weaker, the final version maintains the same numeric targets that EPA originally proposed, setting up potential conflicts with a variety of stakeholders.

For instance, the document is expected to test Defense Department pledges to comply with stricter EPA levels after the department recently unveiled its own guidance that adopted weaker limits.

And environmentalists charged that the draft levels would fail to protect vulnerable populations from adverse effects linked to the chemicals, while states said EPA’s approach would not adequately preserve their own PFAS requirements. But industry questioned the cleanup levels’ scientific basis and the agency’s procedures in developing them.