What to Expect From EPA in 2014

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
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The Environmental Protection Agency (EPA) is likely to spend more time and effort on promulgating new regulations than pursuing enforcement during 2014. The agency has acknowledged that budget cuts will affect the number of compliance inspections and civil enforcement actions it plans to pursue, but budget cuts have not slowed the pace of new regulations. The current administration took office with an expansive energy and environmental agenda, and it has just three years left to put new regulatory requirements in place.

Just before Thanksgiving, the White House Office of Management and Budget published its 2014 Regulatory Agenda, which includes rulemaking priorities for EPA. EPA intends that its rulemaking efforts support its six “guiding priorities,” which are (1) making a visible difference in communities; (2) addressing climate change and improving air quality; (3) taking action on toxics and chemical safety; (4) protecting water; (5) launching a new era of state, tribal, and local partnership; and (6) working toward a sustainable future.

EPA currently has 134 separate regulations in some stage of development. During 2014, EPA plans to propose or finalize regulations:

  • Establishing new source performance standards for carbon dioxide emissions from existing and modified power plants. The schedule and content of this regulation may be affected by the Supreme Court’s decision in Utility Air Regulatory Group v. U.S. Environmental Protection Agency (No. 12-1146), which will be heard on February 24, 2014. The Utility Air Regulatory Group case challenges EPA’s authority to regulate carbon dioxide emissions from stationary sources.
  • Addressing the definition of “waters of the United States” under the Clean Water Act. In September 2013, EPA released for comment a document entitled Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence. A rule based on this document is likely to expand the universe of waters subject to federal jurisdiction.
  • Strengthening agricultural worker protection regulations under the Federal Insecticide, Fungicide, and Rodenticide Act to align hazard communication requirements with similar requirements under the Occupational Safety and Health Act of 1970.
  • Finalizing the renewable fuel standard.
  • Assessing and strengthening requirements for chemicals management under the Toxic Substances Control Act of 1976, including data collection for chemicals used in hydraulic fracturing.
  • Finalizing standards for formaldehyde emissions from composite wood products as required by the Formaldehyde Standards for Composite Wood Products Act of 2010 (15 U.S.C. § 2697).
  • Authorizing or requiring electronic means of recordkeeping and reporting, including an e-manifest rule for hazardous waste.

Additionally, EPA plans to conduct its five-year review of the National Ambient Air Quality Standards for lead and to assess a number of regulations to comply with Executive Order 13650, Improving Chemical Facility Safety and Security.

One regulation not included in EPA’s regulatory agenda is a regulation on management of coal combustion residuals, including coal ash. EPA first proposed a regulation in 2009, and a coalition of environmental groups sued in 2012 to require promulgation of a final regulation. A federal judge on the U.S. District Court for the District of Columbia has given EPA until January 29, 2014, to propose a timeline for finalizing the regulation.

On the enforcement front, EPA has acknowledged that federal budget cuts will require it to prioritize enforcement activities. EPA expects to reduce the number of compliance inspections and civil enforcement cases to 14,000 and 2,320, respectively—a reduction of more than 20% from 2012 levels. In recent interviews, Assistant Administrator for the Office of Enforcement and Compliance Assurance Cynthia Giles insisted that new compliance tools will allow EPA to maintain a strong enforcement presence. EPA plans to use its “Next Generation Compliance” initiative, which relies heavily on electronic data collection and management, to focus its enforcement efforts.

EPA recently announced that it would continue the current set of 2011-2013 National Enforcement Initiatives for 2014-2016. These initiatives focus on: (1) keeping raw sewage and contaminated stormwater out of the nation’s waters; (2) preventing animal waste from contaminating surface water and groundwater; (3) reducing toxic air pollutants; (4) reducing air pollution from large sources, including the coal-fired utility, cement, glass, and acid sectors; (5) reducing pollution from mineral processing operations, and (6) assuring energy extraction sector compliance with environmental laws.

- See more at: http://blog.ogletreedeakins.com/what-to-expect-from-epa-in-2014/#sthash.Xo5yaRXx.dpuf

The Environmental Protection Agency (EPA) is likely to spend more time and effort on promulgating new regulations than pursuing enforcement during 2014. The agency has acknowledged that budget cuts will affect the number of compliance inspections and civil enforcement actions it plans to pursue, but budget cuts have not slowed the pace of new regulations. The current administration took office with an expansive energy and environmental agenda, and it has just three years left to put new regulatory requirements in place.

Just before Thanksgiving, the White House Office of Management and Budget published its 2014 Regulatory Agenda, which includes rulemaking priorities for EPA. EPA intends that its rulemaking efforts support its six “guiding priorities,” which are (1) making a visible difference in communities; (2) addressing climate change and improving air quality; (3) taking action on toxics and chemical safety; (4) protecting water; (5) launching a new era of state, tribal, and local partnership; and (6) working toward a sustainable future.

EPA currently has 134 separate regulations in some stage of development. During 2014, EPA plans to propose or finalize regulations:

  • Establishing new source performance standards for carbon dioxide emissions from existing and modified power plants. The schedule and content of this regulation may be affected by the Supreme Court’s decision in Utility Air Regulatory Group v. U.S. Environmental Protection Agency (No. 12-1146), which will be heard on February 24, 2014. The Utility Air Regulatory Group case challenges EPA’s authority to regulate carbon dioxide emissions from stationary sources.
  • Addressing the definition of “waters of the United States” under the Clean Water Act. In September 2013, EPA released for comment a document entitled Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence. A rule based on this document is likely to expand the universe of waters subject to federal jurisdiction.
  • Strengthening agricultural worker protection regulations under the Federal Insecticide, Fungicide, and Rodenticide Act to align hazard communication requirements with similar requirements under the Occupational Safety and Health Act of 1970.
  • Finalizing the renewable fuel standard.
  • Assessing and strengthening requirements for chemicals management under the Toxic Substances Control Act of 1976, including data collection for chemicals used in hydraulic fracturing.
  • Finalizing standards for formaldehyde emissions from composite wood products as required by the Formaldehyde Standards for Composite Wood Products Act of 2010 (15 U.S.C. § 2697).
  • Authorizing or requiring electronic means of recordkeeping and reporting, including an e-manifest rule for hazardous waste.

Additionally, EPA plans to conduct its five-year review of the National Ambient Air Quality Standards for lead and to assess a number of regulations to comply with Executive Order 13650, Improving Chemical Facility Safety and Security.

One regulation not included in EPA’s regulatory agenda is a regulation on management of coal combustion residuals, including coal ash. EPA first proposed a regulation in 2009, and a coalition of environmental groups sued in 2012 to require promulgation of a final regulation. A federal judge on the U.S. District Court for the District of Columbia has given EPA until January 29, 2014, to propose a timeline for finalizing the regulation.

On the enforcement front, EPA has acknowledged that federal budget cuts will require it to prioritize enforcement activities. EPA expects to reduce the number of compliance inspections and civil enforcement cases to 14,000 and 2,320, respectively—a reduction of more than 20% from 2012 levels. In recent interviews, Assistant Administrator for the Office of Enforcement and Compliance Assurance Cynthia Giles insisted that new compliance tools will allow EPA to maintain a strong enforcement presence. EPA plans to use its “Next Generation Compliance” initiative, which relies heavily on electronic data collection and management, to focus its enforcement efforts.

EPA recently announced that it would continue the current set of 2011-2013 National Enforcement Initiatives for 2014-2016. These initiatives focus on: (1) keeping raw sewage and contaminated stormwater out of the nation’s waters; (2) preventing animal waste from contaminating surface water and groundwater; (3) reducing toxic air pollutants; (4) reducing air pollution from large sources, including the coal-fired utility, cement, glass, and acid sectors; (5) reducing pollution from mineral processing operations, and (6) assuring energy extraction sector compliance with environmental laws.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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