EPA Eyes 'Burdensome' Rules

White House aims to ensure rules are properly designed to meet their goals

By Lynn L. Bergeson

On February 24, 2017, President Trump issued Executive Order (EO) 13777, Enforcing the Regulatory Reform Agenda. The EO offers opportunities for stakeholders to improve regulations. This article summarizes efforts to implement this EO, and identifies opportunities stakeholders may wish to pursue to eliminate or amend regulatory initiatives they feel have outlived their utility or were ill-conceived from the get-go.

The EPA will focus on rules flawed from the get-go.

Implementing EO 13777

EO 13777 is intended to reduce the burdens that agencies impose through regulatory initiatives, and directs federal agencies to undertake activities to further this goal. The scope of the EO is unusually broad, and applies to regulations and rules that are defined under the Administrative Procedure Act as “an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency.” This definition is broader than the definition of a rule or regulation in other EOs involving regulatory review. Existing EOs exclude “formal” rules, or rules that are the result of trial-like administrative procedures that require more process than standard notice and comment-type rulemaking initiatives. The EO excludes regulations issued with respect to military, national security, or foreign affairs functions of the U.S., regulations related largely to agency organizational or management functions, and regulations exempted by the Office of Management and Budget (OMB).

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On March 24, 2017, Administrator Pruitt of the U.S. Environmental Protection Agency (EPA) issued a memorandum intended to expand and improve the EPA’s internal mechanisms for information sharing and to comply with the EO. It requires the EPA’s programs and regional offices “report all regulatory actions in the agency’s regulatory management system and adopt such reporting as common practice moving forward.” Actions that must be reported include “those related to any statutory or judicial deadlines, petitions, pesticide tolerances, significant new use rules, national priority listings or de-listings, permits, federal implementation plans and state implementation plans.” Officials entering the information must certify its accuracy. This new directive will ensure that few, if any, regulatory decisions escape the scrutiny of the EPA’s political appointees, and allow them to identify any and all regulations that can be repealed, replaced or modified to make them less “burdensome.”

Also on March 24, 2017, Pruitt, in another memorandum tasked Samantha Dravis, senior counsel and associate administrator for the Office of Policy, to serve as the EPA’s regulatory reform officer (RRO). That memorandum also assigns Ryan Jackson, Pruitt’s Chief of Staff, to chair the Regulatory Reform Task Force (RRTF) that the EPA is required to establish, as are all federal agencies, under the EO.

The RRTF charge is broad and its work could have a significant impact. The task force evaluates existing regulations and recommends “those that can be repealed, replaced or modified to make them less burdensome.” As a first step, the EO memorandum states that by May 15, 2017, “the Offices of Air and Radiation, Land and Emergency Management, Chemical Safety and Pollution Prevention, Water, Environmental Information, Congressional and Intergovernmental Relations, and Small and Disadvantaged Business Utilization should provide the Task Force with recommendations regarding specific rules that should be considered for repeal, replacement or modification.”

Under the EO, the EPA’s RRTF is required to seek input from entities significantly affected by the EPA’s regulations — such as those that are potential candidates for repeal, replacement, or modification. The EO memorandum goes further and directs the EPA’s offices to hold public meetings to seek input directly from affected stakeholders. The EPA has convened several such meetings. Over 45,000 comments have been filed in response to the EPA’s request for regulatory reform suggestions.

Discussion

The public meetings the EPA convened and the request for comment provide unique opportunities for stakeholders to call attention to regulations and policies they feel should be revised or repealed, or are being implemented or enforced incorrectly. The EPA likely will focus on rules most deserving of serious consideration because they have outlived their utility, were flawed from the get-go, or need adjusting to reflect the passage of time. Stakeholders are urged to keep the momentum going and ensure rules are designed to achieve their intended purpose efficiently.


bergeson-color.jpgLYNN L. BERGESON is Chemical Processing's Regulatory Editor. You can e-mail her at lbergeson@putman.net

Lynn is managing director of Bergeson & Campbell, P.C., a Washington, D.C.-based law firm that concentrates on conventional, biobased, and nanoscale chemical industry issues. She served as chair of the American Bar Association Section of Environment, Energy, and Resources (2005-2006).

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