EPA Regulatory Agenda Shows Continued Retrenching

In mid-December, EPA issued its semi-annual regulatory agenda reflecting rulemaking activities scheduled for 2018 and beyond. The overall announcement is reflected in the EPA press release and detailed explanations are available the Agency's Statement of Priorities posted on the Office of Management and Budget's website and a more specific individualized rule assessment provided at regulations.gov.

The Agency's Statement of Priorities includes a statement of its general goals. As to its regulatory responsibilities, the Statement indicates, among other things, that EPA intends to continue to evaluate new regulatory suggestions as well as its ongoing reevaluation of existing regulations in what it refers to as "deregulatory actions." This process will apply priorities previously set out in statements by Administrator Pruitt, including: an assurance that particular regulatory approaches are based on clear statutory authority; that the scope of regulations takes into account the concept of cooperative federalism and powers that are otherwise reserved to the States; and finally, that regulations seek to balance the Agency's goals of protection of public health and welfare with those intended to support economic growth and job creation. The discussion of various priorities indicates that EPA's focus will be primarily on reevaluating existing regulations. Thus, among other things, the Agency will continue with the reevaluation of the greenhouse gas rules, including the appropriateness of GHG standards for light-duty vehicles, continue the process of repealing and replacing the most recent rule defining Waters of the U.S., reconsider accidental release prevention regulations under the Clean Air Act, and reconsider pesticide safety requirements.

Some of the key aspects of the recent Agenda have been discussed by particular interest sectors, including the Association of State Drinking Water Administrators, Circle of Blue.org, and Chemical Watch. As for chemical issues, the Agency apparently does not intend to proceed with any proposals to restrict the use of solvents, TCE and other specific chemicals that have previously been the focus of Agency attention. Moreover, EPA appears to be delaying certain actions required under recent amendments to the Toxic Substances Control Act, pushing that out to 2019.

With respect to drinking water, of particular interest is the lead and drinking water rule, which apparently is once again delayed. This rule was one of over a thousand that were delayed during the first year of the Trump Administration, and it is now projected that a draft rule will be published in May, 2018. As it is currently envisioned, the rule would include both lead and copper.

Interestingly, with respect to updating lead-based paint standards for housing and schools, EPA's 17-year old standard has been the subject of considerable disagreement including litigation. In late December, the United States Court of Appeals for the Ninth Circuit gave the administration 90 days to reconsider the levels of lead exposure that are deemed to be acceptable for children. In doing so, the court rejected a proposal by the administration to conduct the evaluation over the next six years. (NYT Dec. 27). While this litigation has been ongoing for a period of time, it is not unreasonable to think that the various extensions of time for evaluation of proposed rules, and those rule concepts that are effectively being shelved according to the Agency's Regulatory Agenda, such as rules for solvents and PCE, may become the subject of new challenges from public and private interests.

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