Regulatory Rewind: Key Takeaways and Timelines from EPA’s Recent Regulatory Agenda

Among this list, the U.S. Environmental Protection Agency (EPA) continues to be one of the most active regulatory agencies across the federal government, with well over 100 active actions on its list. It is no surprise that EPA’s Regulatory Agenda is packed with dozens of rules that reconsider actions taken under the Trump administration, including many that revised rules issued under the Obama administration. As the regulatory pendulum swings, here are the key takeaways and timelines from EPA’s Regulatory Agenda. Companies should not only be aware of the agenda but should consider engaging the agency now, proactively, on topics of central interest to them.

Start Planning for the Wave of Regulatory Proposals

EPA’s Regulatory Agenda includes 128 active actions at the pre-rule, proposed rule, and final rule stages. This list includes 80 proposed rules the agency plans to issue over the next 12 months—that is more than one rule a week or an average of six proposals a month. Regulated entities looking to participate in the agency’s rulemaking process should brace for this ambitious schedule as there will be multiple comment periods open at the same time throughout the coming year.

Among the actions slated over the next year, the lion’s share relate to air emissions and chemicals management, which aligns with a focus on addressing climate change and implementing a relatively new law that updated the Toxic Substances Control Act (TSCA). Specifically, the active list includes 67 actions by the Office of Air and Radiation, 29 by the Office of Chemical Safety and Pollution Prevention, 15 by the Office of Water, and eight by the Office of Land and Emergency Management. EPA separately reported 55 actions on its “long-term” list, which are those actions the agency does not intend to take in the next year.

Expect a Resurrection of Emissions-Curbing Rules

Light-Duty Vehicles: EPA is reconsidering the 2020 tailpipe greenhouse gas (GHG) emissions standards through model year 2026 vehicles, which are jointly issued with the Department of Transportation’s fuel economy standards. EPA expects a proposed rule in July 2021 and final rule in December 2021.

Oil and Natural Gas Sector: Executive Order 13990 directed EPA to propose rules to curb methane emissions from both new and existing sources by September 2021. (1) The prior administration’s “2020 Policy Rule,” which removed certain sources from methane and VOC emissions standards and rescinded methane standards from other sources, may be rescinded by the Congress via resolution of disapproval under the Congressional Review Act as early as this week. Notwithstanding the pending resolution, the agenda listed a potential proposed reconsideration rule by October 2021. (2) The related “2020 Technical Rule” amended certain requirements, including fugitive emissions monitoring frequencies, is under review and also scheduled for a proposal by October 2021. (3) The first existing source standards for the exploration, production, processing, storage, and transmission segments are under development, with a proposed rule expected by October 2021.

“Major Source” Facilities: EPA is reviewing a 2020 rule that allowed major sources under the Clean Air Act to reclassify as area sources once hazardous air emissions fell below a certain threshold for purposes of air permitting requirements, with a proposed rule expected December 2021 and final rule December 2022.

Landfills: EPA is reviewing methane emissions standards for municipal solid waste landfills with plans of issuing a proposed rule by February 2022.

Power Plants: EPA is working on a proposal to set emissions guidelines for existing fossil-fuel-fired electric generating units and is reviewing comments submitted on proposed amendments to standards for new, modified, and reconstructed sources. Both actions were included in EPA’s long-term list, which signals that the agency does not intend to take further regulatory action on GHGs from power plants in the next year.

Look for a Path Forward on Fuels

Annual RVO: EPA is well beyond its statutory deadline for issuing the annual renewable volume obligations (RVO) under Renewable Fuel Standard (RFS) program for 2021. A proposed rulemaking, which is expected to cover both 2021 and 2022 volumes, is planned for July 2021.

RFS Set: As the Clean Air Act no longer provides specific volume obligations under the RFS program after 2022, EPA is working on a “RFS Set” rule to set future volume requirements for 2023 and beyond, with a proposal expected in December 2021.

Renewables Enhancement and Growth Support Rule (REGS Rule): This rule would finalize some changes to the RFS program, potentially including biointermediate feedstocks and adding several new feedstocks and fuel pathways. It may also include provisions regarding a pathway for electric vehicles and requirements for facilities using carbon capture and sequestration in fuel production. This rule was in the long-term list.

E15 Labeling Rule: In January 2021, EPA proposed a rule to ease or remove labeling requirements and to modify underground tank requirements for E15. This action has been moved to the long-term list.

PFAS Actions are Proceeding

Monitoring for Public Water Systems: EPA is proceeding with plans to finalize the Unregulated Contaminant Monitoring Rule (UCMR 5) that would require monitoring for 29 PFAS substances in drinking water, which is expected in December 2021.

PFAS Reporting for Manufacturers: Per a statutory requirement, EPA recently proposed a rule to require all manufacturers — including importers — of PFAS in any year since 2011 to report information related to uses, production, processing, disposal, and exposures. There will be a 60-day comment period on the proposal once published in the Federal Register. A final rule is expected by July 2022.

Drinking Water Standards: Following a regulatory determination under the Safe Drinking Water Act in January 2021, EPA is working on a proposed national drinking water standard for PFOA and PFAS, which is expected in March 2023.

Continued Implementation of New Chemicals Law

Novel Risk Management Rules: EPA is proceeding with the first-ever risk management rules for the statutorily required 10 chemicals with final risk evaluations finding unreasonable risk. While EPA is separately reviewing certain risk evaluations, the agency reported it plans to issue proposed risk management rules for each of the 10 chemicals between June 2021 and December 2021, followed by final rules between September 2022 and January 2023.

Reconsideration of PBTs: EPA reported in January 2021 that it was reconsidering rules for five persistent, bioaccumulative, and toxic chemicals (PBTs) under TSCA, including extensions of certain compliance dates, and the agenda makes clear the agency has an interim final rule planned for publication in September 2021.

Still Working Through Water Rules

401 Certification Rule: EPA recently announced it is reconsidering a 2020 rule that established requirements and deadlines for how states grant or deny Section 401 certification that federally licensed or permitted projects meet Clean Water Act standards. EPA opened a docket for written comments to inform its review due August 2, 2021, and reported in the agenda that a proposed reconsideration rule is expected in February 2022.

Steam Electric ELG: EPA is reviewing the 2020 revised Effluent Limitation Guidelines (ELGs) for power plants, which was included on the long-term list without a date of proposal. In a related action, EPA is considering revising the ELGs for “legacy” wastewater and combustion residual leachate, with a proposed expected by September 2022.

WOTUS: EPA has announced its review of the 2020 revised definition of “waters of the United States” but listed its forthcoming reconsideration rule in the long-term list without providing a date of a proposal.

Other Reviews Underway

Coal Ash: EPA is working on a proposed rule to address electric utilities’ disposal of coal combustion residuals (CCR or coal ash) in legacy surface impoundments, including those at inactive facilities, with a proposed rule expected in November 2021 and a final rule in November 2022. Separately, EPA is reviewing rules regarding the beneficial use of CCR, moving a final rule to the long-term list.

Review of RMP: EPA is reviewing the 2019 revisions to the Risk Management Program (RMP) rule for facilities that use, manufacture, or store hazardous chemicals. The agency opened a docket to inform its review with written comments due July 15, 2021. EPA reported a proposed rule is expected September 2022 with a final rule in September 2023.

Noteworthy New Rules in the Queue

Refrigerant Phasedown: In implementing a newly enacted law, EPA issued a proposed rule in May 2021 to establish an allowance allocation and trading program to phase down HFC production and consumption over the next 15 years. The comment period closes on the proposal July 6, 2021. EPA reported a final rule is expected October 2021.

Commercial Sterilizers: EPA is working on potentially new ethylene oxide emissions standards from commercial sterilization and fumigation operations with a proposal expected November 2021.

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As EPA continues its regulatory development process, companies should consider their options for participating formally through public hearings and comment periods as well as informally by engaging the agency, the Office of Management and Budget, and other federal agencies and offices involved in the process.