WHITE HOUSE

Trump charts a regulatory path through 2020

As this morning's impeachment hearing captivated the nation, the Trump administration released its latest regulatory plan. It may be the most important one yet.

With a year left in the president's term, the fall Unified Agenda projects ambitious timelines for some of the administration's deregulatory priorities that have been in the works for some time.

Those include environmental rules on methane emissions, mercury toxins, climate change and Obama-era clean car rules.

The agenda also indicates delays that could put some high-stakes rules in jeopardy of never coming to fruition, should President Trump lose reelection.

In some cases, the agenda says the final rule publication date is unknown. That includes the EPA's "secret science" rulemaking, which the administration has put considerable muscle and political capital into.

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"If I were the president and I wanted to indicate to people, yes, I have a plan to get that done, I would have used this opportunity to suggest I had some confidence I was going to get this done," said James Goodwin, senior policy analyst at the Center for Progressive Reform.

"They didn't do that there on a lot of big-ticket things that were once considered priorities," said Goodwin.

An added wrinkle for the Trump administration is the Congressional Review Act, a once-rare procedure that allows lawmakers to repeal regulations finalized at the tail end of an administration.

Republicans repealed a number of Obama rules in 2017. Should Democrats win the Senate, keep control of the House and land in the White House, they could undo Trump rollbacks.

The White House has not yet released its "two-to-one" analysis, the president's initiative to roll back two rules for every one it creates.

Bridget Dooling, research professor with the George Washington University Regulatory Studies Center, said the number of actions in the fall plan is similar to the Unified Agenda released in the spring.

Amit Narang, regulatory policy advocate at Public Citizen, said the agenda demonstrates the Trump administration will not issue what he called "significant new environmental protections" under the first term. He pointed to half-baked proposals on the industrial chemicals PFAS and lead in drinking water.

EPA issued a press release today lauding the agenda, noting that the agency has finalized "47 deregulatory actions, saving Americans nearly $5 billion in regulatory costs."

"By creating a climate of regulatory certainty, we're able to breathe new life into local economies around the country," Administrator Andrew Wheeler said in a statement.

But Narang noted the $5 billion is the lifetime amount and the annual regulatory cost savings is a small fraction of that — $350 million for all of the Trump deregulatory actions in the first three years.

NEPA

The White House Council on Environmental Quality could soon issue a draft of its revamped National Environmental Policy Act regulations.

CEQ is rewriting the regulations, which guide implementation of NEPA across the federal government, following a 2017 executive order from President Trump. NEPA rules have not been fully revamped since they were first issued in 1978.

CEQ finished an initial comment period more than a year ago and plans to issue a notice of proposed rulemaking as soon as this month.

Climate

The agenda gives a timeline for EPA to finish replacing the last two significant parts of President Obama's Climate Action Plan: a methane standard for oil and natural gas and a carbon standard for new and modified power plants.

Both replacement rules have been proposed and are considered unlikely to change much before their final promulgation.

September's proposal to replace the 2016 methane rule for new oil and gas industry sources would target volatile organic compounds instead of the powerful greenhouse gas.

Methane would be captured only as a co-benefit of the VOC rule at new oil and gas production operations.

But by targeting VOCs — a precursor to ozone — instead of methane, EPA has sidestepped regulation for all downstream segments of the oil and gas sector as well as for existing production sites.

The public comment period for the proposal closes Monday, and EPA projects it will be final in March.

EPA proposed a replacement to the Obama-era New Source Performance Standard for power plant carbon last December, and its public comment period ended in February. The Unified Agenda shows it will be final next month.

The rule for new and modified power plants would remove a requirement that remains on the books that all new coal-fired power plants employ carbon capture and storage to limit a share of their emissions.

The one-year lag between the proposed and final rule illustrates that virtually no new coal-fired power plants are in development that could have triggered the CCS requirement.

The section of the Clean Air Act that EPA uses to regulate power plant carbon demands that new sources be regulated before existing ones, so the Obama-era CCS rule currently makes President Trump's so-called Affordable Clean Energy rule possible.

Transportation

The Trump administration plans to finalize the second portion of its rollback of Obama-era clean car standards by a statutory deadline of April 2020, the agenda says.

The rollback is a joint rulemaking between EPA and the National Highway Traffic Safety Administration, a division of the Department of Transportation.

The two agencies have separated the rollback into two discrete parts. The first involves blocking California from setting vehicle emissions standards that are tougher than those issued by the federal government. It was finalized in September.

The second part involves weakening the Obama-era fuel economy standards, which determine how far cars can travel on a single tank of gasoline.

Recent news reports have indicated that the Trump administration is considering a 1.5% annual increase in the stringency of the fuel economy requirements, rather than the 5% annual increase mandated by Obama.

EPA also plans to propose its Cleaner Trucks Initiative in June 2020, according to the Unified Agenda.

The initiative involves updating — and likely strengthening — nitrogen oxides (NOx) emissions standards for heavy-duty trucks.

The standards have not been updated in 18 years despite a provision in the Clean Air Act mandating a periodic review.

Air pollution, coal ash

EPA is poised to put in place the final version of a landmark change to its New Source Review rules for power plants by next March.

Agency officials also plan to issue a proposal next month to retool its procedures for forecasting the expected costs and benefits of Clean Air Act regulations, the agenda indicates.

Among about 90 other rulemakings, the Office of Air and Radiation intends to wrap up work as early as this month on its contested relook at 2012 regulations on power plant mercury emissions.

Final action is set for early next spring on a similarly polarizing proposal that could relax regulations on industrial air toxics more broadly.

Also by that point, OAR employees plan to issue proposed rules in closely watched reviews of the National Ambient Air Quality Standards for ozone and particulate matter.

The planned change to the New Source Review regulations was initially part of the Trump administration's proposed Affordable Clean Energy rule released last year.

EPA, however, then dropped that provision from the final version of the rule. As initially proposed, it would allow states to give power companies the option of substituting an hourly emissions rate test in determining whether a plant upgrade or other major modification would lead to a significant increase in pollution that would require an NSR permit.

Currently, companies have to forecast the potential effect of the modification on overall yearly emissions.

At a congressional hearing in September, EPA's Wheeler had signaled plans to revamp the handling of cost-benefit analyses for new Clean Air Act regulations (E&E Daily, Sept. 20).

The agency will advance a proposal next month, the agenda indicates. In place of an earlier agencywide plan, EPA will proceed with similar overhauls on a statute-by-statute basis, Wheeler said.

The finalization of the repeal of the Clinton-era "once in, always in" policy is set for next April.

That policy, dating back to 1995, required major industrial sources of air toxics to continue to apply "maximum achievable" pollution controls even if their hazardous emissions fall below the thresholds that trigger the designation as a major source.

The agency also intends to take final action on its relook at the Mercury and Air Toxics Standards by this month. Acting air chief Anne Idsal had recently set a slightly looser deadline of year's end.

Under the original proposal released last December, EPA would leave the actual emission standards in place but revoke the legally required determination that it was "appropriate and necessary" to set those standards in the first place.

Under court-supervised schedules, the agency continues to proceed with residual risk and technology reviews for a host of industrial sources.

By February, it also plans to pursue an update to emissions standards for plants that use cancer-causing ethylene oxide to sterilize medical equipment; this morning, lawmakers from Illinois and Georgia announced a bipartisan task force to keep the pressure on EPA to act (see related story).

EPA is pursuing a suite of proposed amendments to its 2015 regulations on storage and disposal of coal ash, the waste produced by coal-fired power plants.

One draft rule, scheduled for public release next month, would create a federal permitting program to cover states that opt against taking on that task themselves.

Others are in part intended to address last year's ruling by the U.S. Court of Appeals for the District of Columbia Circuit that found some portions of the 2015 regulations are unlawfully weak (Greenwire, Aug. 29, 2018).

Water

EPA and the Army Corps of Engineers are planning to finalize their rollback of which wetlands and waterways are protected as Waters of the U.S. in January.

The agency also plans to propose limits on the use of EPA's Clean Water Act veto by the end of the year.

Final standards for perchlorate in drinking water will be finalized by Dec. 19, as is required by court order.

But the agenda has no date for finalizing a standard for lead in drinking water. EPA proposed its Lead and Copper Rule in November, and the agenda states only that the comment period on that regulation will end Jan. 13.

Similarly, there is no date for finalizing a regulation rolling back standards for heavy metals in power plant wastewater, which were proposed this month.

Chemicals, pesticides

After multiple hearings and pressure from lawmakers, EPA is addressing a class of toxic chemicals found in drinking water known as per- and polyfluoroalkyl substances, or PFAS.

Multiple studies link the chemicals to health effects such as birth defects, thyroid issues and some cancers.

EPA is moving ahead to regulate two of the most studied PFAS, perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS), through the Safe Drinking Water Act.

This is the next step in setting a maximum contaminant level for the chemicals. EPA's timeline puts a final rule by 2021, with a notice coming out in December.

EPA may also propose a rule by the end of the year to designate PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act.

The agency is considering a proposed rule by next year that would add some PFAS to the Toxics Release Inventory Program.

EPA said it would update and seek to codify provisions that help the agency determine the risks of pesticides to bees and other pollinators.

The agency will propose changes to data requirements that shed light on those risks, which would be used in registering the chemicals.

A notice of proposed rulemaking is targeted for next June, with a date for a final rule to be determined.

EPA FOIA rules

EPA this summer instituted a controversial update to its Freedom of Information Act regulations, which triggered litigation from environmental groups as well as legislation from Democratic and Republican lawmakers.

In the Unified Agenda, the agency indicated that more may be coming on how it handles public records requests.

"This rule is the first of two rulemakings (Phase I) that EPA is undertaking to update its FOIA regulations," EPA said.

Wild horses, public lands

The Interior Department plans to develop a new rule that it says will "address wild horse and burro management challenges by adding regulatory tools that better reflect" the authority the Bureau of Land Management already has to regulate growing herds on federal rangelands.

Though the notice does not provide many details, it does say the rule would address clarifying "BLM's authority to sell excess wild horses and burros." Interior plans to release the proposed rule next month.

There are currently 88,000 wild horses and burros on federal rangelands — three times the number considered sustainable. William Perry Pendley, BLM's acting director, has called the overpopulation of wild horses an "existential threat" to the health of federal rangelands (Greenwire, Oct. 14).

"In sum, updating the regulations would allow the BLM to clarify existing regulatory language and address current wild horse and burro management challenges with additional and more flexible regulatory tools that better reflect the BLM's current statutory authorities," it says.

There is also a proposed rule for the use of electric bicycles on BLM lands, which will be released in April.

Interior will develop a proposed rule, to be released in January, that would "revise" livestock regulations to "streamline and clarify grazing processes and improve coordination among Federal, State, and local government entities."

The new Unified Agenda includes several items to address the administration of rights of way on public lands.

A new proposal would update bonding procedures for rights of way on acreage overseen by BLM to "make them clearer and easier to understand."

Another newly proposed rule targets wildfire risks on the 17,000 power line rights of way on public lands.

The proposal would bring BLM into line with a 2018 amendment to the Federal Land Policy and Management Act addressing vegetation management on rights of way.

Offshore drilling

The Bureau of Safety and Environmental Enforcement will move to finalize a rule this month to exempt portions of its "investigative case management system" from privacy act requirements.

The updates would amend Interior's privacy act to permit BSEE to withhold records on civil administration investigations, including outer continental shelf operations and employee misconduct.

BSEE asserts that without the change, the subjects of investigations could demand documents and "could seriously impede or compromise the investigation; and lead to the improper influencing of witnesses, the destruction of evidence."

Wildlife, national parks

The Fish and Wildlife Service plans to resolve or modify the Endangered Species Act status of a number of plants and animals.

By next October, for instance, FWS anticipates removal of the interior least tern from the ESA list, while as early as this month the agency will make a listing determination for the Sierra Nevada red fox.

All told, FWS anticipates making some three dozen reclassification decisions, which could mean moving species from endangered to threatened or off the ESA list altogether. Listing decisions are expected for some four dozen species.

"We will propose to authorize the incidental take of polar bears on the coastal plain of the Arctic National Wildlife Refuge during oil and gas industry exploration seismic surveys and associated activities," FWS stated.

In a move sure to excite further controversy, Interior anticipates issuing long-awaited regulations governing the department's limited interpretation of the Migratory Bird Treaty Act.

The National Park Service said it is finalizing a rule that would align federal regulations on hunting and trapping in national preserves in Alaska with the state's laws and regulations.

In addition, the park service said it is developing regulations that would authorize off-highway vehicle use, such as snowmobiling and bicycling, "within designated areas of certain National Park System units."

Mining

Interior's Office of Surface Mining Reclamation and Enforcement promised to propose a rule this month clearing up ambiguity with so-called 10-day notices.

The notices serve as an oversight tool for OSMRE as states take primary charge of regulating coal mining under federal law.

With environmentalists petitioning for them, the Obama administration ramped up the use of 10-day notices, prompting a backlash from state regulators.

The Unified Agenda states the Trump administration will side with state regulators, giving them "greater deference and flexibility."

OSMRE withdrew its only other rulemaking, new standards for toxic orange gas clouds often released during blasting at surface coal mines, earlier this year (Greenwire, July 29).

At EPA, no mention was made once again about the Obama-era proposed rule to impose new groundwater protections at in-situ uranium operations.

At the Department of Labor, the Mine Safety and Health Administration will "analyze comments" it received on a request for information on crystalline silica.

Experts have pegged airborne quartz, generated when mining equipment digs into surrounding rock, as a primary factor in the explosion in the number of cases of lung disease among miners.

On coal dust, another factor in the resurgence of black lung, MSHA pushed back the comment period on the effectiveness of the 2014 standard until 2022.

The agency plans to finish two new "direct final rules" this year born out of its review to make existing regulations "less burdensome," itself a result of a Trump executive order to cut "red tape."

MSHA will release new standards for surveying equipment not allowed in underground coal mines this month and revised rules for electronic detonators used for explosives and blasting in hardrock mines in December.

Despite powered haulage equipment — trucks and conveyor belts — continuing to be a leading cause of mining deaths, the agency does not plan to publish a notice of proposed rulemaking on that issue until March 2020, after holding a series of public meetings in 2018.

After a federal court ordered a revision in 2013, MSHA says it will finally release new training standards for miners needing to find refuge in case of a mine emergency in December.

No change was made to the extended comment period for miners' exposure to carcinogenic diesel exhaust, which started in 2016 and is set to end in September 2020.

And the proposed rulemaking on proximity detection systems — monitors that alert miners to mobile machinery — has an undetermined next action date.

Agriculture, NOAA

The Agriculture Department outlined several program changes underway to comply with the 2018 farm bill, which authorizes programs through 2023. Many of those are related to conservation programs that will see adjustments over the next few months.

Some of those USDA regulations include an interim final rule for the Conservation Reserve Program due by the end of this month, including changes in eligibility criteria, benefits and compliance provisions. One change accounts for regional drought concerns in certain CRP contracts.

A final rule tweaking the Advanced Biofuel Payment Program is due in December. That would make changes related to the farm bill, including clarifying eligible feedstocks.

USDA also noted the December closing of the public comment period on the program allowing for production of hemp.

At the Forest Service, the agency said it plans to finalize an Alaska roadless-area rule for the Tongass National Forest next June, and revisions to the National Environmental Policy Act in April. The NEPA changes would provide greater clarity and efficiency, the department said.

USDA and the Forest Service continue to weigh a state-specific roadless rule for Utah. That issue is listed as a long-term action with target dates to be determined.

NOAA said it's working to clarify its authority to regulate aquaculture under the nation's primary fisheries law, the Magnuson-Stevens Fishery Conservation and Management Act, and to create a new national marine sanctuary in Wisconsin's Lake Michigan waters.

The agency also said it intends to issue regulations that would allow the "unintentional taking of marine mammals" in connection with bridge construction and demolition in the Columbia River in the Pacific Northwest.

Reporters Nick Sobczyk, Maxine Joselow, Ariel Wittenberg, Michael Doyle, Marc Heller, Scott Streater, Jennifer Yachnin, Rob Hotakainen, Sean Reilly, Dylan Brown, Ariana Figueroa, Jean Chemnick and Kevin Bogardus contributed.

Twitter: @kelseybrugger Email: kbrugger@eenews.net

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