National Association of Attorneys General

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Upcoming Federal Environmental Regulations Will Affect States

Paula Cotter, Environment Project Director and Chief Counsel

The U.S. Environmental Protection Agency (EPA) has made public its regulatory agenda for the upcoming year, outlining the agency’s plans for rulemaking. It has identified five priority areas that will drive its rulemaking: climate change, improvement of air quality, management of chemical risks, water protection, and cleanup of hazardous waste.

The plans are ambitious – they include areas not previously regulated and they impose tighter restrictions than earlier rules. State Attorneys General will feel the impact of the rules. Some of the proposed rules will no doubt trigger litigation in which states may well participate, either supporting EPA as amici curiae or opposing the federal government to the upcoming changes. Moreover, it will probably fall to state Attorneys General to enforce the new rules under the existing system of shared state and federal authority. The full regulatory agenda and plan are available online.

Within the five categories, specific regulations are at various levels of development—running the gamut from areas in which EPA knows that a review and new rulemaking are necessary but has not conceptualized them, to nearly final rules that have already been proposed and reviewed by the public. For instance, EPA is required by Section 402(c)(3) of the Toxic Substances Control Act to develop rules for renovating a defined set of buildings. The purpose of the rules is to reduce the risk of people, particularly children, being exposed to lead. In April 2008, EPA finalized rules for most housing and child-occupied public buildings built before 1978. The statute still requires EPA to address public buildings built before 1978 and commercial buildings not occupied by children. The agency has included that process in its regulatory agenda. However, this particular rulemaking is not far along, and the agency has simply announced that it will issue an Advance Notice of Proposed Rulemaking in April. In contrast, mandatory reporting of greenhouse gas production was finalized in 2009 and became effective Jan. 1, 2010.

Among the significant rule changes and promulgations is EPA’s proposed tightening of the National Ambient Air Quality Standards for ground level ozone. The proposed rule, which is a reconsideration of the Standard promulgated in 2006, was published in the Jan. 19 Federal Register. Public hearings are scheduled in Virginia and Texas.

Other major rulemaking in the context of air regulation includes three related sets of rules: EPA’s proposed finding of endangerment from greenhouse gases. The endangerment finding was published on Dec. 15, 2009; it may well be appealed to the U.S. Court of Appeals for the District of Columbia. The endangerment finding is a prerequisite for another rule that EPA hopes to issue in March: “tailpipe” standards for greenhouse gases—standards for vehicles. The “tailpipe” standards will trigger parallel standards that apply to stationary sources of air pollution, potentially including coal-fired power plants. EPA has said that it plans to issue a “tailoring rule” that will apply requirements binding on stationary sources to larger sources; that rule is also expected in March.

One more significant area that will likely trigger litigation is the requirement for rules governing the financial responsibility of industrial handlers of “hazardous substances,” as that term is used in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Financial responsibility rules promulgated under the Resource Conservation and Recovery Act (RCRA) have long governed hazardous waste producers. However, EPA has never developed rules for those who handle CERCLA hazardous substances, as required by Section 108(b) of the statute. In summer 2009, EPA identified hardrock mining as an industry for which financial responsibility standards were appropriate, but such rules have not yet been published. On Jan. 6, 2010, EPA issued an Advance Notice of Proposed Rulemaking, identifying a broad range of industrial activities that it will consider for financial responsibility requirements. The industries under consideration include coal mining, electricity generation, transmission and distribution, as well as chemical manufacturing and petroleum refining.

State Attorneys General and their clients may wish to review the federal regulatory agenda for environmental rulemaking to see what effect it might have in their states, and to be prepared in the event that the states are drawn into litigation predicated on new rules.

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