Sweeping regulatory document outlines White House agenda

Source: Amanda Peterka, E&E reporter • Posted: Tuesday, November 25, 2014

The White House late Friday released its latest regulatory agenda, a sweeping plan that details both short- and long-term regulatory goals for every agency in the government.

Notable items on the agenda include the renewable fuel standard, key air rules, major oil and gas regulations for hydraulic fracturing, the administration’s stream protection rule, delayed requirements for extractive companies to disclose payments and a final rule to toughen crude-by-rail safety standards.

All told, the fall issue of the biannual “Unified Agenda of Federal and Regulatory and Deregulatory Actions” says that the White House is planning 3,415 regulations, 189 of which are considered major regulations costing more than $100 million. For U.S. EPA, the administration has in the works 130 proposed and final rules.

Renewable fuels, air rules

The regulatory agenda provides a hint as to the Obama administration’s next steps in setting the targets under the renewable fuel standard, the federal policy mandating that refiners use conventional ethanol and advanced biofuels. According to the agenda, EPA is planning to propose its targets for 2015 in May and to finalize that proposal in August.

The timeline comes after the administration announced Friday that it is punting a decision on a controversial proposal to roll back the targets in 2014, largely on concerns raised by the oil industry about the limits to the amount of biofuels that can be used in existing fuel infrastructure (Greenwire, Nov. 21).

EPA said Friday that it planned to take action on the 2014 renewable fuel standard rule next year and that it was considering addressing the 2014, 2015 and 2016 mandates all next year. The agency would likely combine a rule retroactively setting the 2014 targets with the 2015 rule.

The agency has been long delayed on setting the yearly targets; by law, EPA is supposed to finalize the following year’s targets by Nov. 30 of the preceding year.

EPA also has on its agenda several air pollution decisions, most notably its finalization of greenhouse gas regulations for new and existing power plants and a revision of the federal ozone standard.

EPA rolled out its draft for future power plant greenhouse gases in September of last year but didn’t publish it in the¬†Federal Register¬†until Jan. 18. Agency officials have stayed mum about when a final rule will be released, but the Unified Agenda shows it plans to meet its statutory deadline of January 2015 — one year after the proposal. The agency plans to finish its regulations for existing power plants in June.

Under a court-ordered deadline, EPA is required to decide whether to propose a tighter ozone standard by Dec. 1 and to finalize that decision by Oct. 1 of next year; the agenda affirms both deadlines. EPA is also planning to release a long-delayed final rule advising states on how to implement the 2008 ozone standard in March of next year.

EPA has a busy first half of the year when it comes to other air standards. In January, it plans to finalize a proposed package of changes to requirements for states to monitor concentrations of pollutants in the air. A month later, the agency plans to finalize a rule updating 25-year-old standards for home woodstoves, which EPA estimates contribute to 13 percent of soot pollution in the country.

According to the agenda, EPA in May will finalize a rule that calls for upgraded emission controls, new fence-line monitoring requirements and new flaring restrictions at the nation’s 149 petroleum refineries (Greenwire, Oct. 30).

Water, agriculture

EPA is maintaining that its proposed Waters of the U.S. rule aimed at clarifying which streams and wetlands fall under the scope of the Clean Water Act also remains on track to be finalized next spring, even though the agency twice extended the public comment period.

The agency also says proposed standards for wastewater from unconventional oil and gas wells will be out in February. The proposed rule is aimed at concerns that municipal wastewater treatment plants can’t adequately treat the water produced from hydraulically fractured wells, which often contains salts, carcinogens and radioactive elements. It was sent to the White House Office of Management and Budget last week for review. EPA is planning to finalize the proposal in spring of 2016.

EPA will begin soliciting input on future changes to pesticide labels next May, according to the agenda. The agency’s pesticides office has been under pressure to alter its labels on at least two fronts: to prevent the evolution of herbicide-resistant weeds and to reduce the incidence of spraying around pollinators like honeybees.

Jack Housenger, director of EPA’s Office of Pesticide Programs, told an audience in September that EPA is looking to rework the labels in a effort to warn growers not to rely too much on a single herbicide, which can lead to resistant weeds (Greenwire, Sept. 11). Environmental groups are also pressuring the agency to take action on neonicotinoid insecticides, pest controls that have been linked to recent massive honeybee deaths.

The agency also expects to finalize revisions to the federal Agricultural Worker Protection Standards, the first update to the program in more than two decades, in May. The standards would amend how workers are trained and educated on working around pesticides. EPA estimates the cost of the regulations to be between $62 million and $73 million annually, with most of the cost on the agricultural employer. The benefits are estimated to be between $5 million and $14 million annually, from avoided acute illnesses.

The break-even point where the costs would equal the benefits would be reached with 53 fewer cases of severe chronic illnesses, such as Parkinson’s disease, non-Hodgkin’s lymphoma, prostate cancer, lung cancer, chronic bronchitis and asthma. While farmworker advocacy groups have lauded EPA for the changes, groups like the National Association of State Departments of Agriculture say the conclusions drawn in the proposed changes are too broad (Greenwire, Aug. 18).

The Agriculture Department will continue to roll out its rulemakings tied to the 2014 farm bill, which was signed into law in February.

A farm bill rule that would make federal crop insurance eligibility contingent on the adoption of conservation practices on highly erodible land or wetlands is set for release in February, at which time USDA will also publish a cost-benefit analysis.

An interim final rule for the Environmental Quality Incentives Program — which provides financial and technical assistance to help private landowners take on conservation practices — was set to be published earlier this month. The interim final rule is still slated for this month, according to the agenda, with a final rule expected in July.

USDA was also supposed to have promulgated an interim final rule for the Agricultural Conservation Easement Program, which consolidated three farm bill conservation programs into one, on Nov. 4, but will publish it in December, with a final rule date set for July. The Conservation Stewardship Program final rule is also set to be finalized in July.

The Biomass Crop Assistance Program rule, which was developed to help growers plant and harvest second-generation biofuel crops, will be finalized next month. A final rule for the Conservation Reserve Program, which will pay farmers to take acres out of production, is set for April.

USDA is also set to propose four rules on the National Organic Program. A rulemaking to guide dairy farmers on transitioning their cattle from conventional to organic is set to begin by Dec. 31. Another rulemaking to set standards for farmed aquatic animals will begin by Feb. 28. Standards for organic pet food are slated for April 30, and a rulemaking to incorporate amendments to organic beekeeping products standards will begin on July 31.

The Center for Food Safety has criticized the possibility of organic farmed fish, saying the practice runs counter to the standards of the organic program (Greenwire, Oct. 21).

Department of the Interior

The Interior Department in the coming months is scheduled to advance three major oil and gas regulations for hydraulic fracturing, exploratory drilling in the Arctic Ocean and the payment of onshore royalties.

Making its debut in the regulatory agenda is a Bureau of Land Management plan to seek input on how and whether it should revise royalties for oil and gas produced on public lands.

The advance notice of proposed rulemaking, scheduled for next month, is a long time in the making. Former Interior Secretary Ken Salazar as far back as winter 2012 spoke of plans for a 50 percent hike in the onshore oil royalty rate, calling it a matter of fairness to American taxpayers at a time of strong crude prices.

Interior’s former assistant secretary for policy, management and budget, Rhea Suh, a year ago told the Government Accountability Office that BLM plans to move ahead with a regulation that would make it easier for the Interior secretary to raise and lower royalty rates for oil and gas. That was in response to GAO’s finding that Interior’s ability to ensure fair return for the U.S. Treasury under current regulations was “limited.”

Conservation groups and some Democrats have lobbied BLM to consider raising royalty rates to match those charged by states and by Interior for offshore drilling. But industry groups have argued that companies already pay more to drill on federal lands because of permitting delays and that new royalty hikes could actually reduce BLM revenue.

BLM by this month is also scheduled to release a final rule to more tightly regulate hydraulic fracturing at thousands of wells drilled on federal lands. The agency’s revised proposed rule in spring 2013 angered both industry groups, which argued it was redundant, and environmentalists, who said it was too weak. The rule will boost safeguards for the decades-old technique used to coax oil and gas from 90 percent of wells drilled on federal lands.

The final fracking regulation has been under review at the Office of Management and Budget since late August. OMB has held several meetings with environmentalists and industry groups.

Also making its first appearance in the agenda is a BLM proposal to amend its planning regulations.

Due next March, the proposed rule will seek to make BLM land-use plan revisions more efficient and more responsive to the public. The agency is exploring the idea of planning across larger landscapes while paring down some of the land-use decisions it includes in resource management plans (RMPs).

RMPs govern all land uses across 250 million acres of public lands, so there’s a lot at stake for a range of interested parties.

The Bureau of Ocean Energy Management and the Bureau of Safety and Environmental Enforcement this month plan to release a draft rule governing oil and gas exploration in the Arctic. The rule will likely codify some of the voluntary enhanced safety measures Royal Dutch Shell PLC has agreed to follow in its inaugural exploration campaigns in the Beaufort and Chukchi seas over the past few summers.

Conservationists have complained that regulations should be stronger in the frigid Arctic, where ice, storms and limited infrastructure make drilling significantly riskier than in the Gulf of Mexico. Companies also want clear rules to inform multibillion-dollar investment decisions.

By next February, BSEE is also planning to release a draft rule for the design, manufacture and maintenance of blowout preventers, the critical devices that help prevent the uncontrolled release of oil and gas. The rule is categorized as “major,” which means it could cost more than $100 million annually to the economy or have a significant effect on consumers or the offshore industry.

Other rulemakings of note between next March and October include: a National Park Service proposed rule in March governing the drilling for private minerals within national park boundaries; a BLM proposed rule in April to curb the waste of natural gas through venting, flaring and fugitive emissions; Fish and Wildlife Service final rules by April governing the adverse modification of critical habitat for endangered species and how to exclude lands from habitat designations; an FWS proposed rule governing drilling for private minerals within wildlife refuges; and an NPS final rule in September 2015 to ban certain predator hunting and trapping techniques on national preserves in Alaska.

Coal and mining

The Obama administration has also made significant updates to rulemaking affecting coal- and non-coal-mining companies, including the long-awaited Stream Protection Rule.

The Office of Surface Mining, Reclamation and Enforcement may this month take final action to scrap the 2008 Stream Buffer Zone Rule after U.S. District Judge Barbara Rothstein for the District of Columbia struck it down this year (Greenwire, Sept. 21).

OSMRE, as expected, is not planning to release its replacement until sometime next year. The new target date for proposing the long delayed Stream Protection Rule is April 2015.

OSMRE also plans to release a proposal for using coal combustion waste in coal mine reclamation at around the same time. Environmental groups have already expressed concern about the action.

A final rule may come sooner to help states that have finished cleaning up their abandoned coal mines use federal dollars to remediate old hardrock mines. And a proposal to boost the safety of coal slurry ponds is also on tap.

Elsewhere at Interior, BLM has been taking input on a potential rule on coal mine methane emissions. The administration has not set a target date for release.

At EPA, the agency’s final rule for regulating the disposal of coal ash is under the review of OMB. The agency plans to have it signed by Dec. 19, pursuant to a court order.

The agency is also moving forward with rules affecting the uranium mining and milling industry. It expects to finalize a radon proposal, questioned by environmental groups, by next August.

Then a proposal that could boost regulation of in-situ recovery uranium extraction, also known as in-situ leach, could emerge as soon as this month.

At the Mine Safety and Health Administration, the agency plans to release a long-awaited final rule on protecting miners from large mining machines by next month. A proposal to protect miners from other machines may come early next year.

MSHA, which already released regulations to protect miners from reparable coal dust, plans to issue a proposal regarding silica late next year. It is also requesting information on diesel emissions at underground mines.

Department of Transportation

A closely watched priority for the Pipeline and Hazardous Materials Safety Administration is wrapping up work by March on a final rule to toughen crude-by-rail safety standards. In a lengthy proposal unveiled in July, the agency seeks to strengthen rail tank car designs and outline how shippers can retool older DOT-111 cars that have been prone to puncture during accidents.

In January, PHMSA rule writers also want to move forward with proposals to ensure the safe operation of hazardous liquid pipelines located onshore, as well as revisit safety requirements for gas transmission pipelines.

The Federal Highway Administration is still playing catch-up with a host of regulatory changes imposed by MAP-21 (short for “Moving Ahead for Progress in the 21st Century Act”), the 2012 law reauthorizing road, bridge and transit programs. The latest two offerings included in the agenda both involve the setting of performance measures for states to use in meeting goals laid out in the law.

The highway administration says it will shortly release a notice of proposed rulemaking that will cover performance standards for bridges and pavement, according to the agenda. Freight issues and the Congestion Mitigation and Air Quality Improvement Program will be handled in a separate rulemaking scheduled for March.

Also on the MAP-21 front, the Federal Transit Administration plans to launch a notice of proposed rulemaking in January to set standards for state safety oversight of rail transit systems.

Securities and Exchange Commission

According to the new agenda, the Securities and Exchange Commission is delaying a proposal to require oil and mining companies to disclose the money they pay to foreign governments. The administration is now planning on an October release, bumped back from the planned spring 2015 rollout announced in the administration’s last regulatory agenda.

A federal court struck down the SEC’s first version of the rule, which was originally called for in the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act. The rule would have required publicly listed extraction companies to report to the SEC, on a project-by-project basis, the money they pay to governments. It allowed for no exemptions in countries that have forbidden such disclosure.

The rule has been a priority for anti-poverty organizations, which say it’s key to stemming corruption in resource-rich countries. In September, Oxfam America filed a lawsuit against the SEC over the delay in releasing the rule. In a statement today, Oxfam Senior Policy Adviser Isabel Munilla noted that the SEC has now been out of compliance with the deadlines written into the Dodd-Frank law for three years.

“Other markets like the U.K. are moving quickly ahead, leaving the U.S., and U.S. companies, far behind,” she said. “These rules are more important than ever, as new oil, gas and mineral development quickly expands in places like Burma, Kenya, Cambodia, and in the Gulf of Mexico — meaning millions of dollars in payments will be shrouded in secrecy.”

Transmission, nuclear rules

The Nuclear Regulatory Commission is in various stages of more than two dozen rulemakings, some of which would boost security and coping capabilities at the country’s 100 nuclear plants following the 2011 earthquake and tsunami that crippled three reactors in Japan.

The raft of regulatory action is likely to draw the attention of Sen. James Inhofe (R-Okla.), who is poised to become the chairman of the Environment and Public Works Committee, which oversees the NRC.

Inhofe has repeatedly questioned whether the agency is overregulating the industry (E&E Daily, Feb. 6, 2013).

The NRC continues to craft a complex and controversial rule that would address severe accidents at nuclear reactors using Mark I and Mark II containment systems — identical to the Japanese reactors that were knocked out of commission in 2011. The NRC will provide a regulatory basis for crafting a rule in September, according to the agenda.

The NRC is also finalizing a “station blackout” rule, which would ensure power-hungry nuclear plants in the United States have the right strategies or equipment on- and off-site — to cool a reactor’s core and hot, spent fuel in nearby pools for an indefinite amount of time if outside power is cut.

The agenda also includes a few new items tied to transmission.

The Federal Energy Regulatory Commission is working on a proposed rule that would ensure that two important segments of the nation’s energy sector — the electric and gas industries — are aligned. FERC’s proposed rule, part of a series of orders, would revise the agency’s current regulations to better coordinate the schedule of gas and power markets, a needed step in light of the country’s growing dependence on natural gas.

Comments on the proposal are due Friday.

FERC unveiled the proposals earlier this year to better align the country’s increasingly gas-dependent electric grid with an expanding pipeline complex, a move aimed at thwarting gas outages and rolling blackouts that have hit the Southwest in past years (Greenwire, March 20).

Separately, the Energy Department is slated to update its process for approving electricity exports in June.

DOE will propose a rule to provide utilities with more detail on how to apply for federal approval to export power to foreign countries, specifically Mexico and Canada, a significant move as the United States’ international power trade rises with its neighbors.

The department’s Office of Electricity Delivery and Energy Reliability is responsible for authorizing exports of electric energy and issuing presidential permits for the construction, operation, maintenance and connection of electric transmission facilities at the international border.