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VOLUME 2

U.S. EPA’s Regulatory Agenda - Fall 2008

On November 24, 2008, the Federal Register (FR) published supplementary information regarding the United States Environmental Protection Agency’s (U.S. EPA) semiannual regulatory agenda. [1]  The preamble to the U.S. EPA’s semiannual regulatory agenda, which is published online at www.reginfo.gov, provides a statement of priorities and highlights of U.S. EPA’s regulatory plan. [2]  These priorities and highlights include initial steps by the Office of Air and Radiation (OAR) to address the interconnected issues of climate change, energy efficiency, and energy security; steps by the Office of Solid Waste and Emergency Response (OSWER) to promote stewardship and resource conservation and focus on risk reduction and statutory compliance; advanced notice of proposed rulemaking by the Office of Prevention, Pesticides, and Toxic Substances (OPPTS) to determine if formaldehyde emissions from certain composite wood products should be regulated; and proposed rulemaking by the Office of Water to address erosion and sediment discharges associated with construction and development activities. 

U.S. EPA’s Semiannual Regulatory Plan

In the U.S. EPA’s Fall 2008 regulatory plan, the focus appears to be on air.  In the agency rule list, the U.S. EPA provides a list of rules in the various stages of rulemaking:  Prerule, Proposed Rule, Final Rule, Long-Term Action, and Completed Actions. [3]  Prerule actions are generally intended to determine whether U.S. EPA should initiate rulemaking; proposed rules are rulemaking actions that are within a year of proposal [publication of Notices of Proposed Rulemakings (NPRM)]; final rules are those rules that will be issued as a final rule within a year; and long-term actions are rulemakings for which the next scheduled regulatory action is after October 2009.  When comparing the number of rulemakings by office, it is clear why air is the current focus of the U.S. EPA.  The OAR lists a total of 180 rulemakings:  8 prerules, 69 proposed rules, 45 final actions, 27 long-term actions, and 31 completed actions.  In comparison, the OPPTS has the second most listed with 60 total rulemakings.  A brief discussion of the regulatory priorities identified by the OAR, OSWER, OPPTS, and Office of Water is provided below.

Office of Air and Radiation (OAR);

In the preamble to the regulatory agenda, OAR discusses four regulatory priorities: 

Although not identified as a regulatory priority in the preamble, a number of the rulemaking activities by OAR are related to amendments to existing national emission standards for hazardous air pollutants (NESHAPs), such as reinforced plastic composites production, Group I and IV polymers and resins, and miscellaneous organic chemical manufacturing.  Additionally, proposed rulemaking for NESHAP area sources, such as miscellaneous chemical manufacturing, chemical preparations industry, paint and allied products manufacturing, ferroalloys production, and plating and polishing. 

Another proposed NESHAP rulemaking of interest is proposed amendments to the Site Remediation NESHAP in response to litigation.  The NPRM is scheduled for May 2009.  According to the abstract provided in the regulatory plan, the main issues involve exemptions to the rule's requirements for cleanups performed under Resource Conservation and Recovery Act (RCRA) or Superfund authorities, and an exemption for units handling radioactive mixed waste.  The U.S. EPA anticipates that settlement negotiations will result in certain revisions to the rule’s requirements, possibly removing exemptions for certain sources.

Office of Solid Waste and Emergency Response (OSWER)

In the Agency Rule List, OSWER lists a total of 34 rulemaking actions:  1 prerule; 11 proposed rules; 7 final rules; 12 long-term actions; and 3 completed rules.  In the preamble to the regulatory agenda, OSWER identifies four regulatory priorities: 

The rulemakings that correspond to these priorities are the CERCLA Administrative Reporting Exemption for Air Releases of Hazardous Substances From Animal Waste at Farms, which was issued as a final rule on December 18, 2008; the Definition of Solid Waste for Non-Hazardous Materials, which is in the prerule stage, with a ANPRM published in the FR on January 2, 2009; and the Hazardous Waste Manifest Revisions – Standards and Procedures for Electronic Manifests, which is in the final rule stage and scheduled for final action by September 2009.

A number of the rules identified as in the final rule stage have already been promulgated, including the following:

One completed action identified by OSWER is revisions to the definition of solid waste, which excludes from regulation under Subtitle C of RCRA, certain hazardous secondary materials which are being reclaimed.  U.S. EPA has defined hazardous secondary materials as those which would be classified as hazardous wastes if discarded.  In the revisions, U.S. EPA also promulgated regulatory factors for determining when recycling of secondary materials is legitimate.

Although not identified by U.S. EPA as regulatory priorities, some proposed rulemaking of interest include RCRA Subtitle C Financial Test Criteria Regulatory Determination (NPRM on Determination January 2009); Amendment to Universal Waste Rule:  Addition of Pharmaceuticals (NPRM published in FR on December 2, 2008); and Modifications to RCRA Rules Associated with Solvent-Contaminated Industrial Wipes (Notice of Data Availability was scheduled to be published in FR in December 2008; final action to be determined).

Office of Prevention, Pesticides, and Toxic Substances (OPPTS)

Although OPPTS only identifies one regulatory priority in the preamble, there are 4 prerules, 6 proposed rules, 11 final rules, 37 long-term actions, and 2 completed rules listed in the Agency Rule List of the U.S. EPA’s regulatory plan.  The regulatory priority that OPPTS identifies in the preamble is the development of an ANPRM to investigate whether and what type of regulatory or other action might be appropriate to protect against risks posed by formaldehyde emitted from pressed wood products.  On December 3, 2008, U.S. EPA published an ANPRM and notice of public meetings in the FR. 

Although not identified by OPPTS as a regulatory priority, OPPTS Lists Electronic Premanufacture Notice (PMN) Reporting as in the proposed rule stage.  The proposed rule was published in the FR on December 22, 2008, and according to the FR summary, the rule will facilitate the introduction and use of electronic reporting for Premanufacture and Significant New Use Notifications using the U.S. EPA’s Central Data Exchange.

In the U.S. EPA rule list for the Fall 2008 agenda, OPPTS has identified 37 long-term rulemaking actions, that include test rules for certain chemicals on the ATSDR priority list of hazardous substances, HAPs, certain metals, and brominated flame retardants; and long-term actions related to pesticides, polychlorinated biphenyls, lead-based paint, and asbestos.  One of the long-term actions related to lead-based paint is proposed rulemaking to develop regulations for lead-based paint activities in public and commercial buildings, bridges, and other structures.  The NPRM is scheduled for July 2010.

Office of Water

The Office of Water identifies one proposed rulemaking as a regulatory priority for 2009:  the Effluent Limitations Guidelines and Standards for the Construction and Development Point Source Category, which will establish effluent limitations guidelines (ELGs) and new source performance standards (NSPSs) for storm water discharges from construction and development activities.  The ELGs and NSPSs will control the discharge of pollutants, such as sediment, in storm water discharges from construction and development activities.  The rulemaking and its schedule are in response to a court order that required the U.S. EPA to promulgate final regulations by December 2009.

Although the Office of Water only identified one regulatory priority for 2009, the U.S. EPA rule list includes 7 proposed rules, 6 final rules, 15 long-term actions, and 6 completed rules.  The Office of Water is proposing rulemaking to establish ELGs and NSPSs for airport deicing operations, and a NPRM is scheduled for June 2009.  In July 2008, the Office of Water published a NPRM in the FR for Federal Requirements Under the Underground Injection Control (UIC) Program for Carbon Dioxide (CO2) Geologic Sequestration (GS) Wells.  In March 2007, U.S. EPA issued guidance to assist state and EPA regional UIC programs in processing permit applications for pilot GS projects.  The proposed rulemaking, when finalized, will establish new Federal requirements for permitting commercial-scale GS projects.

The Office of Water lists six rules in the final stage, which include revisions to the Concentrated Animal Feeding Operation (CAFO) rule (published in the FR as a final rule on November 20, 2008), and amendments and consolidation of Regulations for Aircraft Public Water Systems (NPRM published in FR on April 9, 2008; final action scheduled for September 2009).  Long-term actions identified by the Office of Water include updates of state UIC programs, revisions to National Pollutant Discharge Elimination System (NPDES) applications, new/revised ambient water quality criteria for recreational waters, and new National Primary Drinking Water Regulations for radon and aldicarb. 

Impacts to Regulated Facilities

In the U.S. EPA’s Fall 2008 regulatory plan, OAR and OSWER identified reducing regulatory burden as one of the regulatory priorities for the agency.  OAR proposes to reduce regulatory burden through the improvement of permitting and monitoring programs to increase efficiency, and OSWER proposes to reduce unnecessary reporting.  In a final rule issued December 18, 2008, OSWER exempted farms from CERCLA reporting requirements for releases of hazardous substances to air, thereby eliminating reporting requirements and reducing the regulatory burden on farms.  Other initial and proposed rulemakings by OSWER may reduce the regulatory burden on industry.  These rulemakings include the hazardous waste “E-manifest”, the addition of pharmaceutical wastes to the universal waste rule, and the modifications to the RCRA rules associated with solvent-contaminated wipes (which proposed conditional exclusion of disposable industrial wipes from the definition of hazardous waste and the conditional exclusion of reusable industrial shop towels and rags from the definition of solid waste).  In addition, two of the rules that were finalized in December 2008 may reduce regulatory burden:  the Rulemaking to Streamline Laboratory Waste Management in Academic and Research Laboratories and the expansion of the comparable fuels exclusion under RCRA.

Although, OPPTS does not specifically identify reducing regulatory burden as a priority, OPPTS is proposing to facilitate the use of electronic reporting for Premanufacture and Significant New Use Notifications using the U.S. EPA’s Central Data Exchange.  The Office of Water also does not identify reducing regulatory burden as a priority; however, the Office of Water has fewer rules in the various stages of rulemaking (34) than OPPTS (60) and OAR (180), which overall results in less regulatory burden. 

Overall, the OAR with 180 rulemakings in various stages may present the biggest increase in regulatory burden with, for example, the proposed NESHAP regulations for additional area sources of toxic air pollutants and the proposed Greenhouse Gas Mandatory Reporting Rule.  Furthermore, with a new administration in its early days, it remains to be seen if the U.S. EPA will continue to identify reducing regulatory burden as a priority or if the priorities of a different administration, which include addressing climate change [4], will result in increased regulation and increased burden on business and industry.

[1] Federal Register.  “Environmental Protection Agency:  Fall 2008 Regulatory Agenda”.  Volume 73, Number 227 (November 24, 2008).  Page 71424-71433.  Received November 24, 2008, via electronic mail (envsubset@epamail.epa.gov).

[2] General Services Administration, Office of Management and Budget.  Fall 2008 Agenda Agency Preambles.  Environmental Protection Agency.  Retrieved December 26, 2008, from the World Wide Web: http://www.reginfo.gov/public/jsp/eAgenda/StaticContent/200810/Preamble_2000.html.

[3] General Services Administration, Office of Management and Budget.  Agency Rule List – Fall 2008.  Environmental Protection Agency.  Retrieved December 26, 2008 from the World Wide Web:

http://www.reginfo.gov/public/do/agencyRuleList.

[4] Obama, Barack and Joe Biden.  “Barack Obama and Joe Biden:  Promoting a Healthy Environment”  Retrieved December 24, 2008, from the World Wide Web: http://www.barackobama.com/pdf/issues/EnvironmentFactSheet.pdf.

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VOLUME 2 - Other Articles (To go back to the overview CLICK HERE)

• The U.S. EPA and The New Administration – Aligned on Climate Change?
• SPCC Updates – Redefining Navigable Waters