Gravel2Gavel Construction & Real Estate Law Blog
The Office of Information and Regulatory Affairs Office of Management and Budget(Administration) has posted the Fall 2017 Agency Statements of Regulatory Priorities, and what follows is a selection of future environmental regulatory actions a number of departments and agencies are proposing to take.
1. Environmental Protection Agency (EPA).
a. EPA has listed three separate “Waters of the U.S.” actions: 1) to review and revise the definition of WOTUS in accordance with Executive Order (EO) 13778 by means of a Notice of Proposed Rulemaking (NPRM) in May 2018; 2) to amend the effective date of the current 2015 regulatory definition, with a final action scheduled for February 2018—this definition is being challenged in the federal courts; and 3) to recodify the pre-2015 definition as it appears in several EPA rules, with final action scheduled for April 2018.
b. To issue a final rule by September 2018 that finally establishes Clean Water Act (CWA) uniform discharge standards for vessels of the Armed Forces per CWA § 312(u).
c. To issue an Advanced Notice of Proposed Rulemaking (ANPRM) in May 2008 that will consider new Resource Conservation and Recovery Act (RCRA) Subtitle D non-hazardous waste management standards for Municipal solid waste landfills, including bioreactor landfills.
d. EPA plans to issue in April 2018 an NPRM that revises some provisions of the Risk Management Programs required by 42 U.S.C. § 7412(r) of the Clean Air Act (CAA) that were initially published on January 13, 2017.
e. EPA plans to issue an NPRM in January 2018 to modify the final RCRA Coal Combustion Residuals Disposal Rules that were published on April 17, 2015. It also plans to issue a final rule, in accordance with a judicial settlement, in June 2019.
f. EPA plans to issue an NPRM in August 2018 to revise and modernize the current RCRA ignitable hazardous waste test for “characteristic hazardous waste.”
g. To settle outstanding litigation, EPA plans to issue, by June 2018, an NPRM to develop Hazardous Substance Spill Prevention rules as a counterpart to the existing oil spill rules that have been established pursuant to CWA § 311(j)(1)(C).
h. EPA plans to issue an NPRM in March 2018 pursuant to its EPCRA recordkeeping and reporting authority which will provide the agency’s interpretation of the term “used in routine agricultural operations” in connection with EPCRA’s “farm exception.”
i. EPA plans to issue an NPRM under the CAA in December 2107 to correct and clarify certain NESHAP standards applicable to the petroleum refining sector that were promulgated on December 1, 2015, and thereby reduce recordkeeping requirements for maintenance and venting operations. Final action will be taken in April 2018.
j. EPA plans to issue a final rule in June 2018, consistent with the April 2017 decision of the U.S. Court of Appeals for the District of Columbia in Waterkeeper Alliance, et al., v. EPA, which concerned the validity of the agency’s 2018 regulatory exception under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) and the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA) for the release of animal waste.
k. EPA plans to issue an NPRM under the CAA in August 2018 that will involve a reconsideration of the June 2106 oil and gas emissions standards that treated fugitive emissions and other matters.
l. EPA plans to issue, by October 2018, a final rule that withdraws the Clean Power Plan (CPP) that is located at 40 C.F.R. Part 60, Subpart UUUU. This action follows EPA’s reinterpretation of its authority under CAA § 111(a)(1).
m. EPA plans to issue a Notice of Withdrawal in January 2018 of the final Control Techniques Guidelines for the oil and gas industry that were issued on October 27, 2016. EPA will solicit comments on whether these guidelines should be withdrawn in their entirety.
n. EPA plans to issue a further notice in 2017 regarding its ongoing project to implement the new Toxic Substances Control Act (TSCA) reporting and recordkeeping requirements for small manufacturers and processors.
2. Department of the Interior (DOI).
a. The Bureau of Land Management (BLM) plans to issue a final action in June 2018 on its proposal to rescind its 2015 hydraulic fracturing rule, following internal review of the rule pursuant to EO 13783 and an implementing Secretarial Order.
b. The U.S. Fish and Wildlife Service plans to issue an NPRM in January 2018 seeking comments on a proposal to revise the rules governing the listing of endangered and threatened species and the designation of critical habitat under the Endangered Species Act (ESA). The current rules are located at 50 C.F.R. Part 424.
c. The Bureau of Safety and Environmental Enforcement (BSEE) plans to issue an NPRM in September 2108 seeking comments on a proposed revision of the agency’s 2016 Final Rule regarding offshore oil and gas Production Safety Systems rules.
d. The DOI plans to issue an NPRM by March 2018 to re-list the Lesser Prairie Chicken as an endangered or threatened species under the ESA, as well as a critical habitat designation. The earlier listing determination was held to be invalid by a federal court.
3. Department of Transportation (DOT).
a. With respect to a rulemaking proceeding for which the comment period has just expired, DOT states that revisions to environmental and related procedures regarding the National Environmental Policy Act (NEPA) implementation rules for surface transportation projects set forth at 23 C.F.R. Part 771 are under consideration. The supplemental notice was published on September 29, 2017 at 82 F.R. 45530, and this particular proceeding will no longer be classified as significant. Both the FAST Act and MAP-21 mandate that the environmental review procedures for such projects be made more efficient. These rules will apply to projects subject to the authority of the Federal Highway Administration, the Federal Railroad Administration and the Federal Transit Administration
b. On the other hand, DOT reports that the comment period established by an NPRM seeking comment on a pilot program to eliminate duplication of environmental reviews required by the FAST Act has expired. Under Section 1309 of the FAST Act, up to five states would be authorized to conduct environmental reviews and issue permitting and other approval actions under state laws rather than NEPA, and this proceeding will develop implementing departmental regulations.
c. The Pipeline and Hazardous Materials Safety Administration of the Department of Transportation will issue an NPRM by September 2018 related to the required markings of identification numbers on cargo tanks, consistent with the Pipelines and Enhancing Safety Act of 2006.
d. DOT plans to issue a final rule in July 2018 which will expand the applicability of the department’s oil spill response rules to shipments of oil on high hazard flammable train operations. The rule is “intended to mitigate the effect of potential train accidents involving the release of flammable liquid energy products.”
4. Department of Homeland Security: U.S. Coast Guard (Coast Guard) and Federal Emergency Management Agency (FEMA).
a. The Coast Guard intends to issue an NPRM in December 2107 seeking comments on a proposal to amend the vessel financial responsibility rules to include tank vessels of greater than 100 gross tons.
b. The Coast Guard plans to withdraw a 1996 rulemaking proceeding that would implement provisions of the Oil Pollution Act to require an owner or operator of a marine transportation facility transferring bulk hazardous substances to develop and operate in accordance with an approved response plan. The ANPRM was published on May 3, 1996, and the agency believes too much time has passed so the matter is being withdrawn, but also noting that other ancillary proceedings have addressed these concerns.
c. FEMA announces that, by March 2018, the agency will be withdrawing a 2016 proposal to make changes to FEMA’s Floodplain Management and Protection of Wetlands rules at 44 C.F.R. Part 9. This action is being taken in accordance with new EO 13807.
5. The Department of Defense (DOD) —U.S. Army Corps of Engineers (Corps).
a. The Corps plans to issue, in May 2018, an ANPRM regarding changes to the present rules governing consultations with the Indian Tribes on such regulatory actions as individual permit decisions and general permit verifications.
b. The Corps plans to issue an NPRM in May 2018 which will propose changes to the Corps administrative appeal procedures in response to the U.S. Supreme Court’s decision in U.S. Army Corps of Engineers v. Hawkes Co., Inc., in which the Court held that an approved jurisdictional determinations (AJD) is a final action subject to further review in the federal courts. It appears that the Corps intends to change its rules to require that a party must exhaust its administrative appeal remedies prior to filing such an action in federal court, thus making actions on AJDs consistent with the process for other Corps final decisions, permit denials and proffered permits.
c. The Corps plans to issue a final action on proposed changes to DOD regulations at 32 C.F.R. Part 175, which set forth the procedures by which a notification can be made to DOD for indemnification or a defense with respect to a third party claim for environmental damages. This process is authorized by Section 330 of the National Defense Authorization Act of Fiscal Year 1993.