Environmental Protection Agency Retrospective Review Plan
Overview of Plan
This U.S. Environmental Protection Agency (EPA) final retrospective review plan retains the preliminary plan’s focus on using 21st century technology to meet the principles of President Obama’s Executive Order on Improving Regulation and Regulatory Review, E.O. 13563. The plan includes four broad initiatives: electronic reporting, improved transparency, innovative compliance approaches, and integrated problem-solving. EPA appears to have developed a plan that will provide for a thorough and effective review process without sacrificing public health protections.
Major Rules to be Revised
The final plan identifies 35 priority regulatory review items. Of these, 16 are slated for early action, meaning that EPA "intends to take a specific step toward modifying, streamlining, expanding, or repealing a regulation or related program" in 2011. The remaining 19 actions will require review to determine if revisions are needed. The priority reviews do not specify exactly what action will be taken for each review. For example, EPA intends to propose modifications to the Clean Water Act’s National Pollutant Discharge Elimination System (NPDES) program by the end of 2011, but gives no indication of what modifications, revisions, or repeals will occur.
Many focus on modernizing reporting requirements and streamlining permit and reporting processes for regulated entities. The NPDES permit review, for example, will clarify the existing regulations, revise or repeal requirements that have become obsolete or outdated, update and improve permit application forms, and modify permit procedures to improve quality and transparency. Similarly, EPA intends to utilize online electronic reporting to improve efficiency and reduce costs through a variety of regulations issued under the Toxic Substances Control Act (TSCA), the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and the Federal Food, Drug, and Cosmetic Act (FFDCA). The agency will also try to finalize a rule that uses an electronic manifest system to track hazardous waste under the Resource Conservation and Recovery Act (RCRA), which could save hazardous waste handlers and regulators between $76 million and $124 million annually.
Other priority reviews are expected to clarify and simplify requirements to save industry costs without sacrificing public safety and health. EPA expects to propose greenhouse gas (GHG) standards in September 2011 and new vehicle and fuel standards in late 2011. Consistent with the presidential directive to achieve greater coordination across federal agencies and reduce redundant requirements, EPA will review vehicle regulations for ways to achieve greater harmonization with the U.S. Department of Transportation (DOT). Following a recommendation submitted by an auto industry representative during the public comment process, EPA and DOT will review opportunities to further harmonize compliance requirements between the agencies. EPA will also review the Clean Air Act (CAA) operating permit implementation process this year to determine if the process can be simplified. In addition, EPA expects to begin the review process of the Long Term 2 Enhanced Surface Water Treatment (LT2) rule under the Safe Drinking Water Act (SDWA).
One of the two completed actions described in the plan, the Lead Renovation, Repair, and Painting Program rule (Lead RRP) reexamination, will produce cost savings between $278 million and $300 million annually based on EPA’s decision. In 2010, EPA proposed additional requirements to a 2008 Lead RRP rule aimed at preventing lead poisoning. After receiving comments from over 300 stakeholders, mostly industry groups, EPA decided not to finalize the additional requirements. Although this action suggests that the agency withdrew the proposed rule due to industry pressure, EPA wrote in the final plan that currently no data or information exist that "call into question the reliability, safety, and efficacy of the lead safe work practices established in the 2008 RRP rule."
Aside from this decision to withdraw the proposed additional Lead RRP requirements, the priority reviews do not appear to weaken public health protections. In fact, reviewing and evaluating current program approaches could increase public protections and health benefits. For example, in reviewing the Long Term Enhanced Surface Water Treatment rule, EPA intends to look for “effective and practical approaches that may maintain, or provide greater protection of,” the drinking water treated by public water systems and distributed to consumers. By examining new data and technology, EPA will look for additional ways to manage the risk of contamination by disease-causing microorganisms. In addition, improvements to the Clean Air Act operating permit process could increase transparency and give regulated permit holders greater certainty.
Although it is too early in the review process for EPA to draft cost savings estimates for many of the ongoing reviews, the final plan does provide estimates for four completed or proposed actions, two ongoing reviews, and one reexamined proposed rule. The four proposed rules (the Spill Prevention, Control and Countermeasure amendments for the dairy industry; a regulation streamlining the approval process for alternative fuel conversions of vehicles and engines; a rule that would remove redundant requirements for vehicle vapor recovery systems; and a rule allowing the tracking of hazardous waste under RCRA using the electronic manifest system) are expected to achieve between $309.1 and $360.1 million in cost savings annually.
EPA estimates that, as a whole, recent reforms already finalized or formally proposed could save up to $1.5 billion over the next five years. The total savings of all reviews is expected to be much greater.
Transparency, Outreach, and Public Input
EPA engaged the public through a variety of outreach mechanisms, and as a result received a substantial amount of public input on its retrospective review. EPA accepted public comments during two separate comment periods held from Feb. 18 to April 4, 2011 and May 26 to June 27, 2011. During the first comment period, EPA accepted written comments submitted to dockets in Regulations.gov, established an email account where the public could submit ideas, and held public meetings to gather verbal input on how the preliminary plan should be designed. EPA requested additional input on the preliminary plan after its May 26 release through the general docket.
EPA also established the “Improving Our Regulations” website to publicize the public comment process and provide updates on the agency’s progress throughout the regulatory review process. The website proved to be a valuable tool because it allowed the public to easily search for opportunities to participate in the process and track the status of EPA's regulatory review efforts. It also gave stakeholders interested in EPA's review plan an additional and more direct way to access the information through the agency instead of by using the administration's general page for all of the review plans.
According to the final plan, EPA received over 800 comments through its outreach efforts. The general docket contained 136 public submissions. Most comments were submitted by industry groups and businesses, although a few of the comments were from individuals and public interest organizations. Some comments concerned the process and scope of the review, and many submissions identified specific rules for review.
Common among the submissions were recommendations that EPA include guidance documents in the scope of the review, address the cumulative impacts of all regulations across various EPA programs and other agencies, conduct retrospective reviews more often than every 5 years (as proposed under the cycle identified in the preliminary plan), and give more consideration to the impacts of regulations on small businesses.
In addition, a number of industry groups and trade associations targeted specific rules for elimination, including new national standards for ozone and coarse particulate matter. Many industry groups voiced opposition to the Boiler and Utility Maximum Achievable Control Technology (MACT) rules for air toxics and objected to EPA’s regulation of greenhouse gases under the Clean Air Act. Several urged EPA to refrain from regulating coal ash as a hazardous waste under RCRA.
Ongoing Retrospective Review and Other New Initiatives
EPA's plan emphasizes that the 35 reviews listed are only a first step toward meeting the desired outcome of E.O. 13563, and that the agency plans to conduct many more reviews that could also reduce costs. The agency intends to follow the 5-year review cycle proposed in the preliminary plan, but notes that reviews are ongoing. EPA will use the Semiannual Regulatory Agenda and relevant portions of the EPA website to regularly report on the reviews that are underway.
According to the plan, the priority for future reviews will be determined by five factors: comments gathered from the public, other federal agencies, and EPA experts; the expertise of the EPA offices writing the regulations; agency and administration priorities, such as judicial rulings, emergencies, etc.; the principles and directives of E.O. 13563; and EPA resources.
EPA also intends to combine and coordinate retrospective reviews with reviews required by Section 610 of the Regulatory Flexibility Act (RFA) and any other reviews that arise from statutory and presidential mandates.
Other Changes to the Final Plan
The final plan identifies 35 regulatory review items to be reviewed, as opposed to the 31 items listed in the preliminary plan. Several priority reviews listed as early actions in the preliminary plan were moved back to longer-term actions, and the longer-term action to simplify and clarify the CAA operating permit program requirements moved up to an early action.
EPA added a new review to the longer-term actions list in response to comments from a coalition of grain industry groups that called on EPA to review the CAA’s New Source Performance Standards (NSPS) (the air pollutant emissions standards for new or modified stationary sources) for grain elevators. EPA agreed that the current NSPS, last reviewed in 1984, should be reviewed based on technology changes.
Notably, EPA did not choose to make any of the controversial rules in the pipeline, which were the subject of a majority of industry comments, priority review areas. Unlike some of the other agencies, such as DOT, EPA did not include a comprehensive list of comments received accompanied by the agency's response to each recommendation. The agency's failure to provide an explanation for its choices is likely to frustrate industry groups, even as its choices are supported by public interest groups. The final plan illustrates that, overall, the agency resisted industry pressure to strike regulations currently going through the rulemaking process and instead used the exercise to review and revise existing, possibly outdated rules to reduce costs and improve efficiency through modern, innovative technology and more streamlined processes, as the presidential directive mandated.