United States: Environmental And Regulatory Highlights Of The Fall 2019 Unified Agenda Of Regulatory Actions

In late December, the Office of Management and Budget (OMB) released the "Fall 2019 Unified Agenda of Regulatory Actions" just a few days before the Calendar turned to the year 2020. (It should be noted that the Spring Agenda was not released until June 24, 2019.) Individual agency agendas were published in the Federal Register by several agencies and executive departments on December 26, 2019. The entire agenda, which is a survey of all current and projected rule-making actions that federal agencies and departments are planning over the next 12 months, is available at such government websites as regulations.gov. The Agenda provides valuable insights into the actions these agencies believe to be most important. This survey will largely concentrate on environmental regulatory developments, although other matters are worth noting.

Environmental Protection Agency

EPA reports by far the largest number of final and pending regulatory actions, as nearly 100 items have been listed. These include:

• A proposal to streamline EPA's internal permitting review procedures, concentrating on the role of the Environmental Appeals Board
• Proposing a new rule to provide more time for EPA and state agencies to implement the new electronic reporting system for the NPDES program
• Issuing a new rule addressing "scientific integrity requirements" as part of the agency's acquisition process
• The agency plans to make regulatory determinations under the Safe Drinking Act for PFOA and PFOS chemical substances by January 2021.
• The agency plans to finalize its Clean Water Act 401 Water Quality Certification Guidance by May 2020.
• EPA plans to begin work in the next few months on revising the existing Clean Water Act 404(c ) rules governing EPA's review of the Army Corps of Engineer's dredge and fill permits.
• By February 2020, EPA plans to revise its rules regarding its review of mitigation banks.
• "Step 2" of EPA and the Corps of Engineers' revisions of the definition of "Waters of the US" may be completed in early 2020.
• Several actions are planned to respond to the 2018 decision of the DC Circuit which vacated aspects of EPA's RCRA 2015 rule addressing the disposal of coal combustion waste residuals.
• By November 2020, EPA plans to finalize technical revisions to the Greenhouse Gas Reporting Rules located at 40 CFR part 98.
• EPA plans to issue a Notice of Proposed Rulemaking (NPRM) in the next few months which will address proposed changes to its Clean Air Act regulatory development process regarding the consideration of regulatory costs and benefits.
• EPA is developing rules to revise the Toxic Release Inventory Program reporting rules.

Department of Defense (U.S. Army Corps of Engineers)

• The Corps plans to issue a NPRM in July 2020 responding to the Supreme Court's 2016 decision in the case of U.S. Army Corps of Engineers v. Hawkes Co., which held that the Corps' Clean Water Act jurisdictional determinations are final actions which can be subject to review in the federal courts. The Corps intends to solicit comments on a proposal to revise its internal appellate review procedures to ensure that a party seeking federal review has first exhausted its administrative remedies before seeking judicial review.
• The Corps plans to begin work updating its natural disaster procedures, located at 33 CFR part 203.
• The Corps will update in 2020 its existing NEPA list of "categorical exclusions" from NEPA review.

Department of Energy (DOE)

Most of the actions listed for DOE are energy conservation matters, but the Department also plans to update its NEPA implementation rules (see 10 CFR part 1021) in 2020.

Department of Labor

• OSHA plans to update its existing emergency response rules (see 29 CFR part 1910) to ensure that they are sufficiently comprehensive and reflect current standards.
• OSHA's Hazard Communication Rule will be updated in 2020 to accord with the latest Globally Harmonized System of Clarification and Labelling of Chemicals.

Department of Transportation

• The Federal Highway Administration plans to revise its existing list of "categorial exclusions" from NEPA review in 2020. (See 23 CFR part 771.)
• The Federal Transit Administration plans to eliminate duplicative environmental reviews in compliance with the recently enacted "FAST Act." (See 23 CFR part 778.)
• The Pipeline and Hazardous Materials Safety Administration plans in 2020 to adopt a number of regulatory actions that will reduce "unnecessary and regulatory burdens on hazardous material transportation without compromising safety."
• The Federal Railroad Administration plans to propose a "rule of particular applicability" establishing special safety standards for a planned high-speed Texas Central Railroad which will link Houston and Dallas, and will use a dedicated track with no grade crossings.

Department of the Interior

(The bulk of the actions listed by the Department concern the ESA status of plants and wildlife.)

• The Bureau of Safety and Environmental Safety (BSEE) plans in 2020 to update its 1997 Oil Spill Response Requirements for offshore oil and gas operations;
• The Fish and Wildlife Service will reexamine the ESA listing status of the snail dater, which figured prominently in the 1978 Supreme Court case of TVA v. Hill;
• BSEE and BOEM will jointly consider in 2020 revising the existing financial assurance provisions affecting oil and gas operations in the Gulf of Mexico.

Department of Homeland Security (DHS)

(The Coast Guard is one of the many agencies that make up the Department of Homeland Security.)

• In 2020, the Coast Guard plans to amend its financial responsibility requirements for commercial tank vessels greater than 100 tons;
• The new Deepwater Ports licensing rules will be finalized in 2020;
• FEMA, also a component agency of the DHS, will finalize its interim rules addressing the provision of federal financial assistance to individuals and households following a Presidential disaster declaration. (See 44 CFR part 206.) In addition, FEMA will amend its Hazardous Mitigation Assistance rules to reflect current statutory authority and agency practice.

Council on Environmental Quality

The CEQ will issue proposed rules in early 2020 to update and clarify existing CEQ rules implementing NEPA—which apply to all federal agencies and departments.

Chemical Safety and Hazardous Investigation Safety Board (CSB)

The CSB issued a proposed rule in 2019 to implement the accidental chemical release reporting provisions of Section 112 (r) of the Clean Air Act, and plans to finalize this new release reporting rule in 2020.

Office of Management and Budget

In 2020, OMB will propose rules to implement the bipartisan "Foundation for Evidence-Based Policy-Making Act of 2019," which requires each federal governmental statistical agency to develop rules and policies ensuring that federal decision making is based on accurate statistical data. (See 44 USC Section 3563.) This could be a very important development affecting the work of federal regulatory agencies.

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