Obama blueprint aims to cement his regulatory legacy

Source: Hannah Hess, E&E News reporter • Posted: Monday, November 21, 2016

The White House released Friday its latest regulatory agenda, a sweeping plan for the remaining months of President Obama’s term.

It includes tools to support U.S. EPA’s Clean Power Plan, and rules on renewable fuels, ozone pollution, water infrastructure and coal mining.

The fall issue of the biannual “Unified Agenda of Federal and Regulatory and Deregulatory Actions” details both short- and long-term plans for every agency in the government.

President-elect Donald Trump has vowed to unwind Obama’s policies on the environment, though legal experts have predicted those efforts would be met with a barrage of lawsuits (Greenwire, Nov. 11).

History suggests Trump will pause rulemaking efforts, freezing pieces of Obama’s regulatory legacy not completed before inauguration. Trump’s team may initiate rulemaking to undo other actions.

The transfer of power could delay efforts related to endangerment findings that obligate EPA to limit emissions from the aviation sector.

EPA for the first time published its schedule for proposed greenhouse gas emissions standards and test procedures for aircraft and aircraft engines. A notice of proposed rulemaking is planned for January 2018 — one year after Trump takes office.

Greenhouse gases

While the Clean Power Plan remains stayed by the Supreme Court as it undergoes legal review, EPA is moving ahead with regulatory action it says will support states developing plans to cut carbon pollution from the power sector.

In December, the agency expects to finalize model carbon-trading rules. Also coming by the end of the year are six amendments governing the process for acting on state plans to meet carbon dioxide limits under Section 111(d) of the Clean Air Act.

The Clean Energy Incentive Program, meant to encourage early renewable power development and low-income energy efficiency projects, is on track for next year. But the agenda did not provide a specific date.

EPA plans to next month finalize a rule to require industrial facilities to submit reports on excess emissions, performance tests and other data electronically, part of a goal to modernize environmental oversight.

The agency’s Office of Air and Radiation will hand off major revisions of emissions monitoring and reporting requirements for coal-fired power plants under its acid rain program to the Trump administration. A notice of proposed rulemaking is due November 2017.

In addition to work underway on aircraft engine emissions standards, EPA plans to issue a proposed endangerment finding, under Clean Air Act Section 231, on releases from aircraft operating on leaded fuel by December 2017.

EPA is also moving forward with major methane emission guidelines for existing oil and natural gas operations, despite intense opposition from the industry and Republicans on Capitol Hill. EPA is in the process of collecting data from companies, with no date set for a notice of proposed rulemaking.

Corporate automakers have already asked Trump for tweaks to EPA’s greenhouse gas emissions and corporate average fuel economy (CAFE) standards.

As part of an ongoing midterm review, the Trump administration will have the authority to decide whether to increase, loosen or maintain the 2022-25 fuel economy standards.

The agency still expects to release renewable fuel volume requirements for 2017 and the biodiesel volume for 2018. That should be completed by year’s end, the administration said. Lobbyists say they expect it before Thanksgiving.

EPA plans to finalize updates to its greenhouse gas-reporting program before the end of the year, with proposed changes including a requirement that underground coal mines measure methane emissions more frequently.

That action was originally scheduled for October. Today, the agency published a final rule for a proposal to phase out heat-trapping refrigerants.

Air quality

The agenda lists relatively few new initiatives. Instead, EPA’s Office of Air and Radiation appears focused on pushing through rulemakings already in the pipeline.

EPA put to rest one of the highest-profile items on the agenda two months ago when it published revised guidance on how states can get a pass on air pollution violations outside of their control because of “exceptional events” (Greenwire, Sept. 19).

Still in the works, however, is a closely watched package of changes to the regional haze program that seeks to improve visibility in national parks and wildlife refuges.

The final draft went to the Office of Management and Budget’s Office of Information and Regulatory Affairs early this month for a standard review. Perhaps optimistically, given that the package is already behind schedule, EPA hopes to make it final by month’s end.

On Wednesday, the agency published proposed implementation regulations for the 2015 ambient air quality standard for ozone. The updated agenda does not give a timetable for issuing the final version.

EPA, by next month, plans to finalize regulations that would drop emergency affirmative defense provisions from state and federal operating permits issued under the Clean Air Act.

Also scheduled for completion by year’s end are updated emissions standards for grain elevators. An initial draft ran into stiff opposition from agricultural interests. As of this morning, the final version remained under review at OIRA.

That agency recently completed a review of proposed radon emissions standards for uranium operations, meaning that issuance of the final rule could come this month (E&ENews PM, Nov. 9).

In a lesser-known area of EPA’s portfolio, the Office of Air and Radiation is mulling a proposed rule for release next May that would set noise standards for high-speed trains.

Energy efficiency

At the Department of Energy, several rules are being delayed from the spring but remain on schedule to be finalized before Trump’s inauguration.

The department is moving the release of a final rule on light bulbs, for example, from December to January. The standard is expected to phase out most incandescent and compact fluorescent bulbs in favor of LEDs.

Similarly, a final rule to establish the first-ever standards for ceiling fans is now scheduled for release this month after originally being planned for July.

Other rules delayed by DOE include one on portable air conditioners, which is now scheduled for final action in December. The previous timeline had it in August.

A major rule requiring DOE to establish revised standards for reducing fossil energy use in all new federal buildings is scheduled for release this month.

DOE did not specify the timeline for a final rule on residential gas furnaces. The comment period for an agency proposal is set to end Tuesday.

“I expect they’ll have a lot of comments on that one, which will take some time to consider and respond to, pushing the final rule off into 2017,” said Andrew deLaski, executive director of the Appliance Standards Awareness Project.

The gas furnace rule is one of the most closely watched at DOE because of its potential energy savings and a history of court challenges. The issue was a sticking point in competing energy bills this year in the House and Senate.

Energy Secretary Ernest Moniz pledged to finalized 14 efficiency rules by the end of 2016. So far, DOE has finalized five.

Drilling, land management

The Bureau of Land Management this month plans to issue a final rule updating how it revises its resource management plans. It could have a major impact on managing activities like energy development, mining, grazing and recreation.

The proposal has drawn the ire of some state and local leaders, who have raised concerns that it would cut local involvement out of the federal planning process and move the agency away from managing lands for multiple uses (E&E Daily, June 20).

Separately, BLM is punting until February on issuing a final rule governing royalties for oil shale developed on public lands in Wyoming, Colorado and Utah.

Oil shale development is currently in an experimental stage, but federal reserves in these three states are massive. If companies can find a way to economically produce it, royalty rates could mean a windfall to communities (Greenwire, March 22, 2013).

Interior’s Bureau of Ocean Energy Management next month plans to finalize updates to its 36-year-old regulations governing air emissions from offshore oil and gas activity.

BOEM by next August plans to issue “a complete rewrite” of federal regulations concerning the financial responsibility of offshore oil and gas drilling facilities.

The impetus for the change is the 2010 Deepwater Horizon rig explosion at BP PLC’s Macondo well, which killed 11 crew members and sparked the worst environmental disaster in U.S. history.

In addition, the Bureau of Safety and Environmental Enforcement is proposing to develop a rule next July updating standards for offshore oil-spill response plans.

Coal and mining

The Office of Surface Mining Reclamation and Enforcement plans to publish the highly controversial stream protection rule in the next two weeks, seven years to the month after it started the rulemaking process.

The restrictions on coal mining near waterways have spent more than five months under review at OIRA, but OSMRE released the rule’s final environmental impact statement this week (E&ENews PM, Nov. 15).

OSMRE also plans to take final action in December on new permit fees covering administrative and enforcement costs in jurisdictions where the agency is the primary regulator.

An uncertain fate awaits for other proposed rules at OSMRE in 2017 under the Trump administration. There are no actions planned for new permit requirements to avoid coal companies idling a mine to avoid reclamation.

New standards for coal dam impoundments and disposal of coal ash in mine reclamation won’t see much action until a new administration.

OSMRE plans to act sometime in January on its proposal to change requirements surrounding the practice of self-bonding — when a company promises to clean up mines without collateral if it meets certain financial criteria (E&ENews PM, Aug. 16).

BLM is waiting until 2017 to take final action on a rule altering coal management rules that include increasing lease modification size, extending mine life spans and clarifying the royalty rate on highwall mining operations.

This month, EPA plans to release a rule to address potential impacts to groundwater from “significant changes” in uranium mining technology, particularly in-situ recovery (Greenwire, Oct. 21).

The Department of Labor’s Mine Safety and Health Administration only has one rule set to be finalized before Obama leaves office — requirements for pre-emptive workplace examinations to address hazardous conditions at non-coal mines.

The Trump administration will inherit proposed rules aimed at reducing miner exposure to crystalline silica dust and equipment diesel exhaust (Greenwire, June 24).

Endangered species

The only significant rule the Fish and Wildlife Service may be able to complete before the end of the Obama administration would implement a near-total ban on the salamander trade in the United States, a move intended to prevent the spread of a deadly fungal disease that has decimated wild salamanders in Europe.

The agency estimates that the ban could cost pet companies, which staunchly oppose the regulation, up to $3.8 million annually and prevent the import of 228,000 salamanders.

Other FWS rules the White House considers significant — such as critical habitat designations for the yellow-billed cuckoo and rufa red knot — are only in the proposed rule stage and are therefore unlikely to be finished before Trump takes office.

FWS also may finish adding the Kentucky arrow darter, plants in the Florida Keys and potentially dozens of other species to the endangered or threatened species lists.

The agency intends to downlist the Florida manatee from endangered to threatened and delist the Yellowstone grizzly, as well, according to the regulatory plan.

NPS may finalize restrictions on dog walking in the Golden Gate National Recreation Area. Several groups have sued the agency to block the rule (Greenwire, April 7).


The Army Corps is getting started on a regulation to require landowners and developers wishing to legally challenge a wetland designation on their land to first exhaust all administrative options.

The measure comes in response to the May 31 Supreme Court decision in Army Corps of Engineers v. Hawkes Co. Inc., which found that so-called approved jurisdictional determinations are considered “final agency actions” and thus subject to judicial review. The Army Corps is aiming to issue a final rule in March.

The agency, which operates many reservoirs and dams around the country, is also scheduled to issue a rule by the end of this month on how it can allocate surplus water to municipalities and industries.

If the new administration allows, EPA will release its much-anticipated revisions to the 1991 Lead and Copper Rule next June, the agenda said, with a final decision due by December 2018.

The 25-year-old rule has been criticized for allowing water utilities to manipulate water tests for lead and not requiring the full removal of lead service lines.

One proposal coming next month would ban the use of lead pipes, plumbing fixtures, solder and flux as directed under the Reduction of Lead in Drinking Water Act of 2011.

The rule would redefine the meaning of “lead free” plumbing materials from 8 percent or less lead material to 0.25 percent or less.

EPA’s Office of Water sent a flurry of regulations to the White House for review in August, including a rule to set up a massive infrastructure loan program and another to collect data on unregulated pollutants. A final rule for the data collection is set for the end of the month.

A proposed rule to establish fees for the Water Infrastructure Finance and Innovation Act (WIFIA) program is also due in November, with a final rule expected next July.


There are a handful of outstanding proposals and notices of inquiry at the Federal Energy Regulatory Commission involving cybersecurity and data sharing.

Among them is a proposal to implement provisions of the Fixing America’s Surface Transportation (FAST) Act, which Obama signed into law in December.

The law added a section to the Federal Power Act to improve the security and resiliency of energy infrastructure in the face of emergencies (Greenwire, June 16).

Under the rule, the commission would implement procedures for identifying sensitive information and language that would bar it from being disclosed. The rule also calls for imposing sanctions on federal employees who knowingly or willfully release that information, including being fired or prosecuted.

The proposed rule, while not retroactive, is important because an inspector general report last year found FERC and its former Chairman Jon Wellinghoff shared sensitive — but not likely classified — information about hypothetical attacks on the electric grid without the proper clearance.

At the Nuclear Regulatory Commission, more than two dozen noncontroversial rules await finalization or implementation. One would require nuclear plant operators to prepare for disasters that reach far beyond the facilities’ design, such as large fires, power outages or explosions.

The measure stems from the NRC’s yearslong effort to protect U.S. reactors from the events that unfolded after the massive earthquake and tsunami in Japan in 2011. The rule would take effect in October 2017.

Other top-items issues include rules that would bolster cybersecurity at nuclear facilities and ensure plant operators are fit for duty and language that would boost emergency preparedness at small modular reactor sites.


The Department of Agriculture will hand off to the Trump administration proposed rules on conservation compliance for farm programs, adjustments to the Conservation Reserve Program and a promotion program for organic foods. It plans to finish guidelines for commercial filming in wilderness areas of national forests.

A final rule for conservation compliance, linked to crop insurance and other programs in the 2014 farm bill, is due in August 2017. Adjustments to the Conservation Reserve Program, such as allowing grasslands to be enrolled, are also due that month.

The organic checkoff proposal, a promotion program funded through a fee paid by producers, is due in October 2017, the new agenda said.

Changes to USDA’s procedures under the National Environmental Policy Act, such as expanding the actions subject to categorical exclusions, will come out in a final rule by February 2017, the administration said.

The Forest Service said it plans to publish a handbook on management of invasive species in national forests but didn’t put a date on that proposal.

EPA said it will continue a review of how best to group different types of crops for the use of pesticides. The administration didn’t put an end date on that process, underway since 2007. On tap for this month are changes to certification requirements for pesticide applicators.

A handful of agriculture-related rules at EPA will carry over until next year. Those include a proposal on procedures for hearings on pesticide registrations, due in June.

Rules for the amount of oil farms can store without being subject to federal spill prevention rules are also due in June. Expanded data requirements for assessing the risk of pesticides to pollinators are due in May.


The National Oceanic and Atmospheric Administration appears likely to complete only two significant rules before Trump takes over.

One would set aside critical habitat for two populations of Atlantic sturgeon. The other would put into place a system to trace the journey of imported seafood from the place it was caught to its arrival in the United States.

The seafood import monitoring program is a cornerstone of the Obama administration’s plan to combat seafood fraud, which often goes undetected because of a convoluted supply chain (E&ENews PM, Feb. 4).

One other notable NOAA rule near the finish line would expand the boundary of a marine sanctuary off the North Carolina coast.

The first protected area of its kind, the Monitor National Marine Sanctuary, was created in 1975 at the site of a wrecked Civil War Union ship (Greenwire, Jan. 8).


EPA’s proposal for a procedural rule regarding evaluating chemical risks under the recently reformed Toxic Substances Control Act is slated for release in December.

The agency’s highly anticipated list of priority chemicals to tackle under the new TSCA is also still expected in December.

EPA expects to propose a rule to add natural gas facilities to the Toxics Release Inventory (TRI) in January, with a final rule expected in August 2018.

The agency expects a final rule for formaldehyde off-gassing standards in wood products this month. A final rule on toluene diisocyanates (TDI), used in coatings and adhesives, is also likely this month, as is a rule on nonylphenols and nonylphenol ethoxylates.

In December, EPA expects to issue a final rule on chemicals treated as “nanoscale materials” during manufacturing, import and processing.

Many other EPA chemicals’ rulemakings are slated for after the inauguration. The agency’s long-delayed proposal to require public and commercial buildings to follow certain lead standards is on track for release next April.

This month, the agency extended a comment period to update the Hazard Communication Program and Regulatory Framework. EPA says it will issue a final rule in June.

The agency says it plans to issue a second proposal on long-chain perfluoroalkyl carboxylate and perfluoroalkyl sulfonate this month, with a final rule slated for July.

EPA says it will propose banning or restricting the manufacturing of the carcinogen trichloroethylene (TCE), and the compounds N-Methylpyrrolidone (NMP) and methylene chloride next month.

The agency pushed a degreasing rule proposal regarding TCE to March, with a final rule expected in July 2018, the agenda said.

The agency plans a notice of proposed rulemaking on the use of polychlorinated biphenyl in fluorescent light ballasts in schools and day cares by January.

A proposal for chemical manufacturers’ confidential business information claims under the new TSCA is slated for April, with a final rule expected in May 2018.

A reporting requirement for the supply, use and trade of mercury under the new TSCA has a notice of proposed rulemaking set for June, with a final rule expected in June 2018.

For its proposed rule issued this week on adding nonylphenol ethoxylates, or NPEs, to the TRI, EPA expects a final rule in June (Greenwire, Nov. 17).

The agency expects to respond to a request from the Toxics Use Reduction Institute to add 25 chemicals to the TRI with a proposed rule in April and a final rule in 2018.


At Interior’s Bureau of Indian Affairs, a rule revising oil and gas mining leases for the Osage reservation will enter the proposed rulemaking stage in December.

BIA previously published a final rule in May 2015, but because of a court order, BIA needed to amend the rule to include part of a prior version that remains operative.

The agency plans to propose a rule called “Indian Electric Power Utilities” this month in an effort to update language from a 1991 regulation.

No substantive changes are anticipated, and the rule will affect only three tribal facilities: Colorado River, Mission Valley and San Carlos Apache.

Reporters Dylan Brown, Gabe Dunsmith, Marc Heller, Corbin Hiar, Christa Marshall, Hannah Northey, Sean Reilly, Cecelia Smith-Schoenwalder, Tiffany Stecker and Scott Streater contributed.