White House Ices Energy, Environmental Rules Pending Review

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By Amena H. Saiyid and Rebecca Kern

The administration of President Donald Trump is putting recent environmental and energy rulemakings on ice until it can review them and decide which ones to keep and which to toss.

Rules boosting energy efficiency of appliances and regulating mercury dental fillings, permits streamlining home, road and power line construction and a slew of other federal environmental rules may either be frozen or delayed under a White House order issued after President Trump’s inauguration.

White House Chief of Staff Reince Priebus sent a memorandum Jan. 20 directing departments and agencies to “immediately withdraw” any regulations that were sent for publication in the Federal Register until a Trump-appointed agency head has reviewed and approved them. For rules and permits that already have been published, Priebus called for “a temporary postponement of their effective date for 60 days from the date of this memorandum.” The memo allows exceptions under emergency situations to rules that deal with “health, safety, financial, or national security matters.”

Freezing regulations until they can be reviewed is a common practice when a new administration comes into office.

Rules Withdrawn

Following Trump’s election, the Environmental Protection Agency, the Energy and Agriculture departments issued a slew of rules that have yet to be published and will be withdrawn for review:

  •  DOE rules, issued Dec. 28, to increase energy efficiency requirements for walk-in coolers, portable air conditioners, commercial boilers and uninterruptible power supplies.
  •  EPA rule, issued Dec. 15, to require 103,000 dental clinics to use dental amalgam separators to capture mercury from fillings prior to discarding them down sewer drains.
  •  The pre-rule, which USDA sent Jan. 18 for interagency review, that seeks comments on crafting a national standard for labeling genetically-engineered foods, a result of last year’s passage of the genetically-modified organisms disclosure law (Public Law No: 114-216).
The Obama Administration issued 50 new or updated appliance standards as part of its climate action plan, which Trump has pledged to undo.

Energy efficiency standards set minimum requirements to reduce the amount of energy that appliances and equipment use, which leads to reductions of carbon emissions as well as savings for consumers who end up using less electricity to operate the products. The DOE is required by law to review energy standards for more than 60 regulated products every six years.

Face Litigation

Energy efficiency advocates note that the DOE under the Trump administration could face litigation, which has occurred in the past when previous administrations missed statutory deadlines on updating energy efficiency standards.

The Air-Conditioning, Heating, and Refrigeration Institute, which represents home appliance manufacturers, is pleased with the review of the energy efficiency rules since the group didn’t support the latest standard on commercial boilers, saying it was based on flawed analyses.

“Under the law, DOE is only required to review these and other rules, not make changes to them,” Stephen Yurek, AHRI president and CEO, said in a Jan. 22 statement. “It is entirely possible that this administration will choose to merely leave current efficiency levels in place for some products.”

The Priebus memo also postponed the effective implementation dates of rules and permits that the EPA, DOE and the U.S. Army Corps of Engineers did manage to publish, but hadn’t yet taken effect. For final rules or permits that involve a substantial change in policy, the memo directed the agencies to consult the White House Office of Management and Budget. These include:

  •  fifty reissued and two new nationwide permits, published Jan. 6 by the corps that take effect March 19, authorizing dredge-and-fill activities in wetlands and streams with minimal adverse impacts for a variety of projects, including mining, home building, agriculture, manufacturing and road construction;
  •  a stormwater general permit, published Jan. 19 by the EPA that takes effect Feb. 16, to reduce polluted runoff from construction sites;
  •  a Superfund rule, published Jan. 9 by EPA that takes effect Feb. 8, adding vapor intrusion from soil beneath buildings as way to evaluate contamination levels for waste sites under Superfund consideration; and
  •  energy efficiency rules, published in January by DOE that takes effect between mid-February and May, for ceiling fans, pool pumps, central air conditioners and wine coolers.

Nationwide, Stormwater Permits Scrutiny

The National Association of Home Builders interpreted the Priebus memo as applying broadly to all permits, including the corps’ nationwide and stormwater permits, Owen McDonough, the association’s environmental policy program director, told Bloomberg BNA.

Regarding the package of nationwide permits, McDonough said, “if they are to be reviewed, we would hope the process is expedited to avoid a lapse in the availability of these fast-track, streamlined permits.”

The current package of nationwide permits expires March 18.

The EPA’s revised stormwater permit has drawn the ire of home builders who are concerned about provisions that allow multiple builders to be liable for individual violations. It could be among those singled out for further scrutiny.

Waiting on EPA Response

Eva Birk, who also is the association’s environmental policy program manager, told Bloomberg BNA the group is waiting for the EPA to clarify whether the memo applies to the 2017 construction general permit for stormwater and to indicate what steps it will take.

“As to whether we think the permit will be held up for scrutiny, I think the only persons who can respond to that question now are Acting Officials at EPA, and the Office of Management and Budget,” Birk said.

Nathan Gardner-Andrews, chief advocacy officer for the National Association of Clean Water Agencies, cautioned Bloomberg BNA that the stormwater permit only applies in states where the EPA is the permitting authority, but the memo would affect permits in states that were delegated authority to issue their own Clean Water Act permits.

Gardner-Andrews said the same reasoning could be applied to nationwide permits that are issued and regulated by the corps.

Unclear Impact on Nano Rule

Attorneys said they were unsure of the memo’s impact on an EPA rule (RIN:2070-AJ54) that requires manufacturers, importers and processors to submit information about nanoscale chemicals, including production volumes. This rule was published Jan. 12 and takes effect May 12, more than 60 days from the date of the Priebus memo.

Martha Marrapese, an attorney with Keller & Heckman LLP told Bloomberg BNA, said the memo could shift the effective date 60 days, meaning its requirements would enter into effect July 11.

However, Lynn Bergeson, an attorney with Bergeson & Campbell, P.C., and Lawrence Culleen, an attorney with Arnold & Porter Kaye Scholer LLP, said the nanoscale materials rule may fall outside the scope of the memo because of its later effective date.

Also falling under the regulatory freeze is a Superfund rule the EPA proposed, and published Jan. 9, that would establish financial assurance commensurate with the risk of producing, handling, storing, moving or treating hazardous substances from hard rock mining. Another Superfund rule, which was published Jan. 11, would establish financial responsibility for the chemical manufacturing, petroleum and coal manufacturing and electric power generation and transmission sectors.

Slowing Pipeline Safety Rules

At least three of the Pipeline and Hazardous Materials Safety Administration’s recent rules may be affected by the memo, including a final rule that was published in the Federal Register Jan. 23.

The agency is amending the timeframe for notification of accidents, alcohol and drug testing requirements and incorporating certain standards for in-line inspections.

The rule goes into effect March 24.

“What’s interesting about the pipeline safety final rules is that they’ve been under development for several years, and even though both of them have provisions in them that are designed to react to accidents in the next couple of years, they don’t have that emergency urgency to them,” said Susan Olenchuk, partner at Van Ness Feldman LLP.

Olenchuk said it’s difficult to say if the delay will benefit anyone outside the executive branch, but for pipeline operators, the freeze might temporarily postpone capital investments necessary for compliance.

—With assistance from Sylvia Carignan, Pat Rizzuto and Tiffany Stecker.

To contact the reporter on this story: Amena H. Saiyid in Washington at asaiyid@bna.com and Rebecca Kern in Washington at rkern@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

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