Frenzy of Last Minute Activity at the EPA

The U.S. Environmental Protection Agency (EPA) spent this month announcing a slew of last minute regulations and activities some of which I have covered others not. The agency is currently working on regulations for the oil and gas sector, and is finalizing new annual regulations for the nation's ethanol mandate and renewable fuel blending requirements. The agency is also moving forward with rules related to implementation of its Clean Power Plan for cutting carbon pollution from the nation's coal utilities to meet the pledges made in the Paris Accord even though the Clean Power Plan itself is currently under court review after being temporarily stayed by the U.S. Supreme Court on February 9th 2016 until all judicial review has concluded.

Thought the Administrative Procedure Act requires that agencies issue a notice of proposed rulemaking, provide an opportunity for public comments, issue a final rule with a concise statement of its basis and purpose, and make the final rule effective a minimum of 30 days after publication in the Federal Register, EPA will formally publish some of the proposed rules in the coming weeks. For example; the EPA issued a pre-publication version of a proposed rule to require rock mining facilities to demonstrate their financial ability to clean up releases of hazardous substances. The press release stated that EPA will formally publish the proposed rule in the coming weeks.

Other announcements from the EPA published the National Pollutant Discharge Elimination System (NPDES) Municipal Separate Storm Sewer System (MS4) General Permit Remand Rule in the Federal Register on December 9, 2016. This is a final rule, EPA's latest effort to create rules for general NPDES permits for small MS4s after the agency's previous attempt was remanded by the U.S. Court of Appeals for the Ninth Circuit.

As mentioned last week, the EPA released its Final Report on Impacts from Hydraulic Fracturing Activities on Drinking Water Resources and EPA’s report concluded that hydraulic fracturing activities can impact drinking water resources under some circumstances rather than the previous conclusion and identifies factors that influence these impacts: These mechanisms include water withdrawals in times of drought, or in areas with, limited water availability; spills of hydraulic fracturing fluids and produced water; fracking directly into underground drinking water resources; below ground migration of liquids and gases from inadequately cased or cemented wells; and inadequate treatment and discharge of wastewater. EPA changed the emphasis from unlikely to impact water resources to could impact water resources. The underlying research did not change.

The EPA finalized a proposal to expand the hazards that qualify sites for the Superfund National Priorities List (NPL). EPA assesses sites using the Hazard Ranking System (HRS), which quantifies negative impacts to air, groundwater, surface water and soil. Sites receiving HRS scores above a specific threshold can be proposed for placement on the NPL. Now EPA has added subsurface intrusion to the ranking system. Subsurface intrusion is the migration of hazardous substances, pollutants or contaminants from contaminated groundwater or soil into an overlying building, like the moving of solvent vapor into a basement.  Subsurface intrusion can result in people being exposed to harmful levels of hazardous substances, which can raise the lifetime risk of cancer or chronic disease.

EPA announced the prohibition of 72 inert ingredients from being used in pesticides. Most pesticide products contain a mixture of different ingredients. Ingredients that are directly responsible for controlling pests such as insects or weeds are called active ingredients. An inert ingredient is any other substance that is intentionally included in a pesticide that is not an active ingredient. Now a group of 72 have been banned.

EPA also announced the slew of fines and settlements obtained throughout the year. I have no doubt missed a few regulations and intentionally left out a few of the press releases that I did not understand what the regulations addressed and could not find enough details on the EPA web site only the statement that the EPA will formally publish the proposed rules in the coming weeks. The number and complexity of the rule making can no longer be navigated without a team of specialists.