Audit, Compliance and Risk Blog

Reopening Review of Automobile GHG Emission Standards For 2022-2025

Posted by Jon Elliott on Tue, Apr 25, 2017

The biggest difference between Presidents Obama’s and Trump’s environmental policies relate to regulation of greenhouse gases (GHGs) that most scientists and policy-makers believe contribute to climate change – a proposition which President Trump and his appointees do not embrace. On March 15, the Environmental Protection Agency (EPA) announced its reconsideration of GHG emission standards from “light duty” vehicles such as automobiles and small trucks, for model years 2022-2025. These standards were set in 2012 by EPA, in cooperation with the (US federal) National Highway Traffic Safety Administration (NHTSA) and the California Air Resources Board (ARB). Three days before President Obama left office, on January 17, EPA reaffirmed the 2022-2025 standards, determining them to be technically and economically feasible for auto makers to meet and cost-effective for customers.

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Tags: California Legislation, Environmental risks, Environmental, EPA, ghg

Trump Proposes To De-Fund Chemical Safety Board

Posted by Jon Elliott on Tue, Apr 18, 2017

On March 16, President Trump released his initial budget proposal for the 2018 federal Fiscal Year. Among its many provisions is a proposal to zero out budgeting for the Chemical Safety and Hazard Investigation Board (more often referred to as the Chemical Safety Board or CSB).

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Tags: Environmental risks, Environmental, EPA, Hazcom

President Trump Orders Review of “Waters of the United States”

Posted by Jon Elliott on Tue, Apr 11, 2017

On February 28, President Trump issued Executive Order (EO) Number 13778, ordering the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) to review their current regulatory definitions of “waters of the United States” – sometimes called “navigable waters.” (I blogged about this definition here). The EO strongly points toward a narrower definition that would reduce the agencies’ jurisdiction, reversing rules issued in 2015 during President Obama’s administration.

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Tags: Environmental risks, Environmental, EPA, Hazcom, effluent, clean water

Trump Executive Order Rolls Back Obama’s Climate Initiatives

Posted by Jon Elliott on Tue, Apr 04, 2017

Candidate Trump promised to reverse President Obama’s climate initiatives, which he variously described as based on uncertain science and/or as a “war on coal.” Since taking office, President Trump has moved expeditiously to make good on those promises. On March 28 he issued an executive order (EO) “Promoting Energy Independence and Economic Growth,” packaging a large set of repeals and re-directions to move US federal policies firmly away from climate change and toward domestic fossil fuels.

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Tags: Environmental risks, Environmental, EPA, climate change

EPA Revises Accidental Release Prevention Requirements

Posted by Jon Elliott on Tue, Mar 28, 2017

Efforts to prevent and respond to chemical disasters are undergoing their first thorough review since many were created decades ago after December 1984’s catastrophe in Bhopal, India. President Obama triggered these reviews in August 2013, when he issued an Executive Order directing federal regulatory agencies to review specified regulatory programs that are designed to prevent such disasters: Occupational Safety and Health Administration’s (OSHA) Chemical Process Safety Management Standard (PSM); Environmental Protection Agency’s (EPA) Accidental Release Prevention (ARP) program and Emergency Planning and Right-to-Know Act (EPCRA) program; and Department of Homeland Security’s (DHS) Chemical Facility Anti-Terrorism Standards (CFATS) program (I blogged about the EO here). EPA proposed ARP revisions in March 2016 (I blogged about them here), and adopted final revisions on January 13, 2017.

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Tags: Environmental risks, Environmental, EPA, Hazcom

President Trump Formalizes Regulatory Reform Procedures

Posted by Jon Elliott on Wed, Mar 22, 2017

Candidate Trump frequently railed against “over-regulation” in the U.S, and President Trump is taking steps to address the issue. On February 24, he issued an Executive Order (EO) outlining procedures that federal agencies are to use in order to review – and presumably reduce – their rules and the associated burdens of compliance. This new EO Number 13777 references and incorporates previous EOs calling for regulatory reform and/or reduction. Although none of these EOs guarantee any particular outcome, since federal regulations can only be revised or rescinded in compliance with procedural requirements in the statutes they implement, the latest EO does ensure a government-wide and reviewable set of procedures. It will give the President and his aides specific information to guide agency appointees, and will give those appointees information to direct agency personnel. Read More

Tags: Business & Legal, Environmental risks, Environmental, EPA

EPA Revises Stormwater General Permit For Construction

Posted by Jon Elliott on Tue, Mar 14, 2017

Effective February 16, 2017, the Environmental Protection Agency (EPA) has issued a revised “National Pollutant Discharge Elimination System [NPDES] General Permit for Discharges from Construction Activities” (CGP).” This new 2017 CGP replaces EPA’s 2012 CGP, updating requirements for entities with construction sites that disturb more than 1 acre of land – readers should keep in mind that this covers individual projects, so that even if your organization isn’t a construction company or developer, a big expansion at your facility may be covered.

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Tags: Health & Safety, Environmental risks, Environmental, EPA, Stormwater

Congressional Review Act Versus the Obama Administration’s Late Regulations

Posted by Jon Elliott on Tue, Mar 07, 2017

Former President Obama and his Administration spent much of 2016 racing to complete long-term regulatory and administrative initiatives, to cement his legacy. Now that it’s 2017, President Trump and the Republican majority in Congress are racing to undo many of these initiatives. These counter-initiatives appear in a variety of forms, depending on available statutory, executive, and administrative authorities.

One mechanism seeing its first use in 16 years is the Congressional Review Act, which gives Congress the power to pass a joint resolution “disapproving” – repealing – a federal agency rulemaking. Each resolution requires Presidential approval, so as a practical matter it only works when a new president agrees with Congress to repeal one of his predecessor’s regulations. In 2001, President George W. Bush agreed with Congressional disapproval of an ergonomics standard adopted by the Occupational Safety and Health Administration (OSHA) during President Clinton’s governance in 2000. In contrast, President Obama vetoed five such resolutions while he was still president, blocking Congressional attempts to disapprove rules his own administration had adopted because Congressional leaders were unable to muster 2/3 supermajorities in both houses to override his vetoes. As of the end of February, three such resolutions have been passed and signed into law by President Trump.

What is the Congressional Review Act?

The Act was passed early in 1996, toward the end of President Clinton’s first term, and after the Republicans had gained majorities in both house of Congress from Democrats. Congressional leaders wanted the opportunity to review regulations and reject those they opposed, and were concerned that the Democratic Administration might enact so-called “midnight regulations” before the 1996 election. Accordingly:
  • Federal agencies must submit a copy of each new rule to Congress, along with a concise general statement relating to the rule, including whether it is a major rule (i.e., likely to affect the national economy by more than $100 million annually); and its effective date.

  • Congress then has a total of 60 days in which both houses are in session, to review the rule and adopt a resolution of disapproval. Because a recess by either house stops the clock, 60 legislative days may cover many weeks – in 2016 any rule adopted on or after June 13 turned out to have fewer than 60 days remaining before the end of the 2015-2016 Congress.

  • When a rule is adopted with fewer than 60 days remaining, the 60-day clock restarts when the next Congress convenes, and is again measured based on days both houses are in session. During 2017, the House and Senate calendars presently indicate that the reconvened 2017-2018 Congress will have until May 17, 2017 to consider an Obama Administration rule adopted on or after June 13, 2016.

Proposed resolutions of disapproval are drafted as legislation and assigned to appropriate Congressional committees, and if voted out to the floor are then voted on by the full house. A resolution that passes both houses is sent to the President for signature or veto.

Which Resolutions Have Already Been Enacted During 2017?

As of the end of February, President Trump has signed legislation encompassing three resolutions of disapproval, vacating the following:
  • Securities and Exchange Commission (SEC) Rule 13q-1, which would have required each “resource extraction issuer” to include in its annual reports information about any payment made by the issuer (or a subsidiary or entity under its control) to the U.S. federal government or any foreign government for the purpose of the commercial development of oil, natural gas, or minerals. This Rule implemented a statutory requirement enacted in 2010 by the Dodd-Frank Act.

  • Department of Interior (DOI) “Stream Protection Rule” (actually extensive rules in 30 CFR part 700 et seq.), which would have established extensive new and modified regulatory requirements intended to “protect water supplies, surface water and groundwater quality, streams, fish, wildlife, and related environmental values from the adverse impacts of surface coal mining operations.” This rule was adopted pursuant to the Surface Mining Control and Reclamation Act of 1977.

  • Social Security Administration (SSA) rules for providing the Attorney General with information about SSA beneficiaries who may be denied the right to buy and own guns, based on their mental health issues. These rules were adopted pursuant to the National Instant Criminal Background Check System (NICS) Improvement Amendments Act of 2007.

Many additional proposed resolutions are presently pending, covering a wide range of environmental, health and safety, labor, and financial rules adopted between June 13, 2016 and President Obama’s last day of office on January 20, 2017.

What Might Happen After a Rule is Disapproved?

A resolution of disapproval voids the targeted rule, sending the issue back to the adopting agency for more action. The Act prohibits the agency from reissuing the disapproved rule “in substantially the same form” – although few would expect an agency staffed by President Trump’s appointees to readopt a rule first approved by President Obama’s appointees. The Act provides no timeline for subsequent action, so SEC, DOI, and SSA (and other agencies that may experience similar disapprovals in the coming months) can move as quickly or slowly as their present priorities dictate.

Congressional Review Act disapprovals have no direct effect on the underlying statute that provided authority and direction to the agency that adopted the rule. That requires separate legislation, approved by both houses of Congress and signed by the President.

Self-Assessment Checklist

Is the organization subject to a federal regulation adopted on or after June 13, 2016?
  • SEC Resource Extraction Issuer reporting rule

  • DOI Stream Protection Rule

  • SSA NICS rule

  • Other rule

Is the organization tracking any proposed Congressional Review Act resolution that would disapprove the rule(s)?

Where Can I Go For More Information?
  • DOI’s Stream Protection Rule

  • SSA’s NICS (eligibility for guns) rule

Specialty Technical Publishers (STP) provides a variety of single-law and multi-law services, intended to facilitate clients’ understanding of and compliance with requirements. These include:

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About the Author

Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 25 years. He was involved in developing 13 existing products, including Environmental Compliance: A Simplified National Guide and The Complete Guide to Environmental Law.

Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).

Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).

You may contact Mr. Elliott directly at:

photo credit: Ania Mendrek Capitol Hill via photopin (license)
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Tags: Business & Legal, Environmental risks, Environmental

EPA Revises Hazardous Waste Generator Requirements – Part 2 (Separate Summaries For Generator Categories)

Posted by Jon Elliott on Tue, Feb 21, 2017

In November, EPA published substantial regulatory revisions (which EPA entitles collectively as the Hazardous Waste Generator Improvements Rule). The revisions are scheduled to become effective on May 30, 2017. In Part 1 of this pair of blogs (click here), I summarized the principal revisions. In this Part 2 I re-compile the changes applicable to different categories of generators:

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Tags: Environmental risks, Environmental, EPA, Hazcom

EPA Revises Hazardous Waste Generator Requirements – Part 1

Posted by Jon Elliott on Thu, Feb 16, 2017

In November, the U.S. Environmental Protection Agency (EPA) published substantial revisions to its hazardous waste regulations, which it entitles the “Hazardous Waste Generator Improvements Rule (HWGIR).” These include more than 60 changes to specific requirements, plus dozens of technical clarifications and corrections. Some requirements apply to nearly all generators, while others are targeted at one or more of three volume-based tiers. EPA has scheduled the revisions to take effect on May 30, 2017 – but it’s possible that some provisions will be reviewed and revised by the incoming Trump Administration before that date.

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Tags: Environmental risks, Environmental, EHS, EPA, Hazcom