EPA: Home for the Holidays

While legislators were leaving Washington and families across America spent time celebrating the holidays, the U.S. Environmental Protection Agency (EPA) continued to issue rules and contemplate regulations. Several issues received little attention from media and lawmakers despite their potentially significant impact on the nation’s public health and welfare. Here is a brief summary of some of EPA's work during late December and early January.

EPA and OMB Ease Disposal Requirements on Certain Hazardous Substances

EPA and the White House Office of Management and Budget (OMB) continue to argue over the provisions of a waste regulation rule, according to BNA news service. EPA will likely reissue the rule, originally proposed in October 2003, soon if the two administrative entities can reconcile their differences.

The proposed rule would reclassify certain hazardous waste substances as solid waste. Though both classes of substances are regulated under the Resource Conservation and Recovery Act (RCRA), hazardous substances are subject to more stringent disposal requirements.

The impasse occurs not over the rule itself, but over how states are to interpret its impact. Under RCRA, states must have in place waste disposal programs that are "no less stringent than" federal programs. These are to include comprehensive recycling programs.

EPA asserts the proposal — which clearly eases disposal requirements for the waste management industry — is less stringent than existing regulations. However, OMB claims that, because the resulting increase in solid waste would increase the amount of waste subject to recycling, the proposed rule is a more stringent regulation. Therefore, in OMB's view, all states should implement the proposed rule.

BNA reports that an EPA official described the rule as in its "final administrative review." OMB was to complete its review of the proposed rule by Jan. 8, but an OMB official tells OMB Watch the review period has been extended by 30 days.

EPA Rules that Drinking Water Facilities Assess 25 New Contaminants, not Perchlorate

On Dec. 21, EPA issued a final rule which will expand the list of chemicals, from 90 to 115, that drinking water utilities are required to monitor. EPA uses the monitoring data to identify opportunities for drinking water regulation.

However, while the proposed list of chemicals included perchlorate, the final list does not. Perchlorate, a chemical commonly found in rocket fuel, interferes with thyroid function and is a possible carcinogen.

No federal or state regulation of perchlorate currently exists. On Jan. 4, Sens. Barbara Boxer (D-CA), Dianne Feinstein (D-CA) and Frank Lautenberg (D-NJ) introduced legislation addressing perchlorate contamination.

According to BNA news service, an EPA official commented the agency is examining other sources of perchlorate exposure such as food, as well as assessing the health impacts of the chemical.

EPA Proposes Relaxed Controls for 'Major Source' Air Polluters

On Jan. 3, EPA published a proposed rule potentially allowing "major source" air pollutant emitters to be downgraded to "area source" emitters. Major sources are those emitting more than 25 tons of hazardous air pollutants per year. Major sources are subject to maximum achievable control technology (MACT), which often results in a significant reduction in air pollution. Area sources are not subject to the MACT standard.

Under the current rules, major sources retain that designation permanently — a policy EPA refers to as "once-in, always-in." The proposed rule would repeal the current policy. EPA argues the proposed rule would encourage all facilities to maintain pollution levels below 25 tons per year.

However, critics argue more pollution will ultimately occur if the number of facilities subject to the MACT standard decreases. The proposed rule raised the ire of Boxer. In a press release, she stated: "We need less, not more, cancer-causing air pollution. This proposal will allow thousands more pounds of cancer-causing air pollution to be emitted each year." Boxer went on to promise action during the 110th Congress: "I have said that the days of rollbacks without scrutiny are over, and I meant it."

Boxer's comments may raise the public profile of this issue and cause EPA to consider her objections before the agency issues a final rule. The public comment period on the proposed rule lasts until March 5.

EPA Takes Preliminary Step on Valuating Ecosystems

The federal government's regulatory process requires agencies to perform cost-benefit analyses when formulating new rules. This requirement often complicates the work of the EPA due to the complexity and abstractness of some environmental benefits. With this in mind, the EPA released its "Ecological Benefits Assessment Strategic Plan" the week of Dec. 18. The plan attempts to "help improve Agency decision making by enhancing EPA's ability to identify, quantify, and value the ecological benefits of existing and proposed policies."

The plan's intent is to influence EPA managers, analysts, and scientists, and is not itself a rule. The directive contains both short-term and long-term objectives and focuses on incorporating "ecological benefits" into EPA cost-benefit analysis. It is unclear at this early stage whether EPA’s objectives would more accurately value intangible aspects of the natural environment.

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