Midnight Regs: Many Environmental Items on Final Bush Agenda

As the Bush administration closes out its terms in office, a number of rules, policies, orders, and other actions related to the environment are expected by Jan. 19, 2009. We've highlighted some of these, and provided a few general resources for tracking various issues. Other moves by the administration will turn up in coming months.

One thing's likely: regulations and their timing over the next seven months could impact — or be impacted by — the presidential election. White House Chief of Staff Joshua Bolten gave agencies a deadline of June 1 to propose regs and a deadline of Nov. 1 to finalize them.

This edition of the TipSheet includes the second installment of our list of the many forthcoming regulatory and administrative actions related to the environment. See Part 1 for additional information and sources.

MIDNIGHT REGS: POTENTIAL FINAL ACTIONS

AIRBORNE LEAD STANDARD

As required by law, EPA is reviewing its standard for airborne lead, one of the primary "criteria" air pollutants. Information EPA has released so far indicates that a new standard likely will be more stringent than the current standard. Critics say the lowest end of the proposed range for the standard would be protective enough of public health, but much of the rest of the proposed range would not be. They also are highly critical of the possibility EPA has raised of dropping lead altogether as a criteria pollutant. A final rule is required by Oct. 15, 2008.

• EPA Rule.
• TipSheet of April 2, 2008.

NATIONAL PARKS AIR POLLUTION: REVISED PROCEDURES

EPA is in the process of revising the methods it uses to calculate emissions from power plants and other sources of pollutants such as particulates, sulfur dioxide, and nitrogen oxides. The revisions would smooth out the effects of peak pollution periods and allow for other bookkeeping techniques that could permit more total pollution in an area. That could lead to an increase in pollution in national parks and wilderness areas that are now legally mandated to have the cleanest air. Advocates for those areas, including some EPA and National Park Service personnel and federal legislators, say that would be contrary to what Congress intended when it passed laws protecting these areas.

If the changes go through, pollution sources such as coal-fired power plants that are proposed near a number of parks might have better prospects for approval. EPA has a target date of October 2008 for finalizing the rule.

• EPA Rule.
• Example of media coverage: "Clean-Air Rules Protecting Parks Set to Be Eased," Washington Post, May 16, 2008, by Juliet Eilperin.

"NEW SOURCE REVIEW" REVISIONS

In its ongoing efforts to revise the "New Source Review" process that is intended to regulate emissions from older pollution sources that are undergoing upgrades or modifications, the EPA is pursuing another new rule. It would change how hourly maximum emissions from sources such as existing coal-fired power plants are calculated, and change the way the agency weighs the effects of both hourly maximum and total annual emissions. Critics say the changes would result in more total pollution. The courts have ruled that some of EPA's other attempts to revise the NSR process were illegal.

Critics of the current effort, which is targeted for finalization in August 2008, include state officials in New York, Florida, and California, provincial officials in Ontario, Canada, the American Lung Association, Earthjustice, Environmental Defense Fund, Natural Resources Defense Council, Sierra Club, and some industry groups that say the rule would benefit just some emitters such as power plants, not all industries. A primary supporter of the rule is the Edison Electric Institute.

• EPA Rule.

FEEDLOT EXEMPTION FROM AIR EMISSIONS REPORTING

After industry groups failed to convince Congress to exempt feedlots from reporting airborne toxic releases such as ammonia and hydrogen, EPA is attempting to do the same thing via a new rule. The agency's rationale is that such releases are normal, and don't require an emergency response, so shouldn't be necessary to report under the requirements of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Emergency Response Planning and Community Right-to-Know Act (EPCRA). SEJ formally protested the potential exclusion of this information from the public, since such releases can pose health and environmental threats, and because the public has no other way of knowing how much pollution is being emitted. Final action on the rule is expected by November 2008.

• EPA Rule and December 28, 2007, Federal Register, CERCLA/EPCRA Administrative Reporting Exemption for Air Releases of Hazardous Substances From Animal Waste.
• WatchDogs of March 26, 2008; and Feb. 27, 2008.

MINES AND STREAM BUFFERS

The US Office of Surface Mining Reclamation and Enforcement (OSM) is finalizing its rule addressing the dumping of "mountaintop removal" mining debris near streams. Mining organizations are generally supportive of the rule. Environmental groups say it'll allow even more destruction of streams and adjacent areas, on top of the 1,700 miles of streams already filled in during the past few decades. The rule may be finalized soon after the November 2008 elections.

• OSM Rule and August 24, 2007, Federal Register, Excess Spoil, Coal Mine Waste, and Buffers for Waters of the United States.
• TipSheet of Sept. 12, 2007.

ENDANGERED SPECIES: SAGE-GROUSE

The US Fish and Wildlife Service is revisiting its assessment of the status of the greater sage-grouse as an endangered or threatened species, after a court ordered it to reexamine its 2005 determination that the birds aren't in danger. If the birds and their habitat have to be protected under the Endangered Species Act, this could have a major impact on land uses in 11 Western states, including oil and gas drilling and grazing.

An FWS ruling on whether pursuing an official listing of the species is warranted could occur before Bush leaves office. If pursuing such a listing is approved, the agency could say that the birds are a lower priority than some other species, and defer further work for an unknown period of time. In this scenario, the birds would remain unprotected by the ESA.

The decision on sage-grouse is one of seven endangered species findings that FWS is reviewing after the agency acknowledged excessive political interference from former Deputy Assistant Secretary Julie MacDonald, who resigned in 2007. Findings on several dozen other species are also under investigation.

• FWS.
• BLM.
• The Wilderness Society: Peter Aengst, 406-586-1600.
• Western Watersheds Project: Jon Marvel, 208-788-2290.
• TipSheet of Oct. 13, 2004.

WETLANDS AND WATERWAYS; REVISED DEFINITIONS, JURISDICTION, AND ENFORCEMENT

A Supreme Court decision in June 2006 (known as "Rapanos") left unresolved some key questions regarding wetlands and some streams, rivers, and lakes, including who has jurisdiction over them under the Clean Water Act. EPA and the Corps of Engineers attempted to clarify things by issuing new guidance in June 2007. However, that left many situations to be resolved on a case-by-case basis, and hundreds of those decisions have been made since, often to the detriment of the wetlands and waterways, according to critics. Decisions, which routinely become public only when finalized, often vary between EPA and the Corps, and within each agency's regions and districts. Prospects are high that additional guidance will be issued before Bush leaves office (though possibly after the November elections), due in part to the urging of various industry interest groups. Under the next administration, there is the possibility of other Congressional or judicial action.

• EPA.
• Environmental Law Institute: Jay Austin, 503-775-5705.
• TipSheet of Sept. 13, 2006.
• Background: "EPA Dropped Wetlands Cases After High Court Ruling," Associated Press, July 7, 2008, by Dina Cappiello.

HAZARDOUS WASTE DEFINITION

EPA is revising its definition of hazardous materials included in solid waste, with the avowed goal of increasing recycling of solid waste materials. Products such as lead batteries, tires, electroplating sludges, steel furnace dusts, and spent solvents might be excluded as hazardous waste if the revisions are approved. Such changes could lead to less regulation of solid waste materials, and make it harder to determine if they or their recycled endproducts are contaminated, or if hazardous materials are being released during the recycling process. Many recycling plants have been designated Superfund sites. Final action on the rule, which could affect up to 4,600 facilities in 530 industries that might then be exempted from cleaning up any resulting contamination, is expected by August 2008.

• EPA Rule and March 26, 2007, Federal Register, Revisions to the Definition of Solid Waste.
• Earthjustice: Lisa Evans, 781-631-4119.

AQUATIC NATIONAL MONUMENTS

On their way out the door, presidents of both parties have used the powers of the Antiquities Act to designate areas as National Monuments that would otherwise likely meet stiff resistance if they had to go through the normal approval channels and public scrutiny. Bush may be following the same course, by using the Act to designate a handful of US territorial waters as marine reserves. It appears that many of these don't have high prospects for commercial use, lowering the risk of a backlash from some quarters. There is little hard information available so far, but for one perspective, see:

• "Bush Eyes Unprecedented Conservation Program," National Public Radio, May 23, 2008, by John Nielsen and David Malakoff.

MIDNIGHT REGS: SINGLE-STATE ISSUES WITH IMPLICATIONS ELSEWHERE

• Approval (possibly in October) of six controversial BLM resource management plans in UT that could expedite leasing of nine million acres for oil and gas leases. Example of media coverage: "Bush Prepares Parting Shots," Denver Post, June 15, 2008, by Mark Jaffe. Contact: The Wilderness Society, Nada Culver, 303-650-5818.
• Approval of roadless-area plans for Idaho, by about September 2008, and for Colorado, by about December 2008. These plans were developed after the failure of earlier Bush administration initiatives at the federal level led the administration to direct individual states to prepare their own plan. Idaho plan. Colorado plan. Information on the status of plans in other states. This whole issue could be revisited by the next administration.
• Designation of critical habitat for 12 species of Hawaiian picture-wing flies. This is another of the cases improperly influenced by now-resigned Bush appointee Julie MacDonald. A final decision is expected by Nov. 15, 2008, per court order: FWS Rule.

MIDNIGHT REGS: OTHER POTENTIALLY NEWSWORTHY ACTIONS

ENERGY EFFICIENCY STANDARDS

The Dept. of Energy is in the process of updating or setting energy efficiency standards for about two dozen product types. A few minor actions might be completed in the next six months, but most likely will segue into the next administration. However, a proposal for commercial lighting may come out in November 2008.

• DoE 5-year rulemaking schedule.
• Appliance Standards Awareness Project: Andrew deLaski, 617-363-9470.
• TipSheet of Nov. 22, 2006.

MIDNIGHT REGS: SOME KEY SOURCES

• Endangered Species, Roadless Areas, and EPA Issues: Earthjustice, Joan Mulhern, 202-667-4500 x223.
• Forest, Wildlife, Land Issues, Feedlots, and Hazardous Waste: Sierra Club, Ed Hopkins, 202-675-7908.
• Air Pollution and Hazardous Waste Issues: National Assn. of Manufacturers, 202-637-3134.
• Business Issues: US Chamber of Commerce, Bill Kovacs, 202-463-5533.
• Sources for Air, Parks, Mining, and Agriculture Issues, see Midnight Regs, Part 1.