By Kristen Hildreth
Last week, we provided you with an overview of a few of the major federal environmental regulatory actions—both headline and page 3—that have the potential to significantly impact state laws and policies.
Today, we’ve put on our fortune-teller hats to provide a look at what actions we can expect in 2019. For more information on any of the below, or for their fortune-telling services, please contact NCSL's Kristen Hildreth or Ben Husch.
The Ghosts of 2018
No, you’re not experiencing deja vu—several of the actions below were also featured in our 2018 wrapup, as we expect they will carry over into 2019 via rule finalizations and new proposals outlined in the 2018 Fall Unified Agenda.
Waters of the United States (WOTUS) will continue to remain a focal point, with the Environmental Protection Agency (EPA) and the Army Corp of Engineers moving forward with their proposals to not only recodify the definition of “waters of the United States” that existed prior to the 2015 final rule by March 2020, but to also replace it with a revised definition by September 2019.
For a full legal and regulatory walk-through of the rule, read NCSL’s timeline here. The EPA anticipates finalizing the Affordable Clean Energy proposed rule to replace the 2015 Clean Power Plan (CPP) final rule by March 2019. We will also likely see a finalized Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years (MY) 2021-2026 Passenger Cars and Light Truck rule from the EPA and the National Highway Safety Administration by March 2020. For more information on any of the actions above, please visit NCSL’s Info Alert Archives here.
Additionally, the Trump administration plans to finalize its second proposal related to coal combustion residuals (CCR), which would address specific technical issues in resolving litigation of the 2015 final rule, and potentially include provisions which establish alternative performance standards for owners and operators of CCR units located in states that have approved CCR permit programs, by June 2019.
The White House Council on Environmental Quality (CEQ) may also take additional steps in early 2019 on its call to action to update its implementing regulations for the procedural provisions of the National Environmental Protection Act. And, of course, we anticipate the administration to finalize Endangered Species Act (ESA) implementation revisions which would affect the listing, delisting, critical habitat designations, consultation, and prohibitions for listed species sometime mid-2019.
National Primary Drinking Water Regulations for Lead and Copper
The EPA is expected to release a notice of proposed rulemaking for the regulatory revisions to the Lead and Copper Rule (LCR) sometime in early 2019.
The LCR was promulgated in 1991 and aims to reduce risks to drinking water consumers from lead and copper that can enter drinking water as a result of corrosion of plumbing materials. Recent lead crises such as those in Flint, Mich., Washington, D.C., and Philadelphia, Penn., have “underscored significant challenges in the implementation of the current rule.” The administration notes that there is a “compelling need to modernize and strengthen implementation of the rule—to strengthen its public health protections and to clarify its implementation requirements to make it more effective and readily enforceable.” In fall of 2016 EPA published a LCR revisions white paper, which provided regulatory options to improve the rule. For more information on that white paper read NCSL’s Blog.
Clean Water Act—Section 401 State Certification Procedures
Section 401 of the Clean Water Act (CWA) provides states the ability to certify, or condition, “any activity” which “may result in any discharge into the [nation’s] navigable waters,” thus allowing states to ensure that permits issued at a desk in Washington do not negatively impact water quality at a farm in Kentucky, a lake in New York, or a city in California. Unfortunately, there have been several attempts made to restrict state’s authority under 401, despite having been reaffirmed via several Supreme Court decisions.
On the EPA’s list for March 2019 is to consider whether the Section 401 certification process would benefit from updated rulemaking to “promote nationwide consistency and regulatory certainty for states, permit applicants, and other stakeholders.” As of right now, it is unclear if the agency will proceed with a formal ruling or simply provide an update to its previously issued state guidance. NCSL, along with other stakeholder associations, plans to continue efforts to ensure that state authority under Section 401 is preserved.
Pesticide Applicator Certification and Agricultural Worker Protection
In the pipeline since 2017, the EPA plans to issue a proposed rule revising existing standards and take final action on amendments to the certification of the pesticide applicators rule and establish agricultural worker protection standards (WPS) by September 2019. The agency’s pesticide applicators rule had amendments finalized prior to the start of the current administration.
The current administration requested comments on regulations that may be appropriate for repeal, replacement or modification per Executive Order 13777. As a result of such comments, the EPA is planning to propose a rule revising the minimum age requirements for applicators certified to use restricted use products (RUPs) and for persons who use such products under the supervision of a certified applicator.
The agency is proposing to defer to state or tribal minimum age requirements for commercial applicators, private applicators and noncertified applicators who use RUPs under the supervision of a certified applicator, and establish a federal minimum age of 16 for all three types of applicators if states do not establish enforceable minimum-age requirements.
Additionally, the agency’s plans to amend its agricultural WPS, which is aimed at reducing the risk of pesticide poisoning and injury among agricultural workers and pesticide handlers, was revised in 2015 and went into full effect in January 2018. Changes being considered are related to minimum age, designated representatives, an application exclusion zone and entry restrictions for enclosed space production.
Kristen Hildreth is a policy specialist with NCSL's National Resources and Infrastructure Committee.