New directions from the Obama EPA

In less than a year into its new administration, the Obama White House and its EPA Administrator Lisa Jackson have already made quite an imprint on the environmental regulatory landscape.

During his first month in office, President Obama directed EPA to review the action taken by the previous administration in prohibiting California from regulating automobile carbon dioxide emissions. This directive followed the Supreme Court’s ruling under Massachusetts v EPA that carbon dioxide is an air pollutant under the Clean Air Act and that EPA must regulate it if it is found to cause harm to public health and welfare.

EPA promptly issued a draft endangerment study on April 14, 2009 proposing that CO2 and other greenhouse gases pose a threat to public health and welfare. On July 1, 2009, EPA reversed the Bush administration’s decision and allowed California to regulate CO2 from tail pipes.

The Obama EPA is tackling the greenhouse gas issues on two fronts. It is working with Congress to develop new cap-and-trade laws to reduce greenhouse gas while developing its own regulations under the Clean Air Act to regulate it.

On September 30, 2009, Lisa Jackson announced that EPA is proposing new regulation under the Clean Air Act to curb greenhouse gas from industries that emit more than 25,000 tons of CO2 per year. This would bring many plants under the new regulation if it becomes final.

The Obama EPA has also dropped a Bush plan to exempt some 3,500 facilities from reporting chemical releases under the Toxic release Inventory. You can expect to see a few more rule reversals in the future.

The latest on the Greenhouse Gas (GHG) bill in Congress

As many of you know, the Obama Administration is pushing for legislature in Congress that will regulate GHG. In fact, President Obama told 34 Democratic members of the House Energy and Commerce Committee on May 5 that he would like to see cap-and-trade legislation before the end of this year.

One of the targets in the original proposal from the White House was to reduce GHG to 14% below 2005 emission levels by 2020. The powerful Chairman of the House Energy and Commerce Committee Henry Waxman set the target at 20% below 2005 emission levels by 2020 in his own original draft cap-and-trade bill. This was a much more ambitious target than the White House’s. It has been reported that Waxman will be softening his target to 17% as a compromise to attract more Democrats in his committee to vote for it.

There are 59 members (36 Democrats and 23 Republicans) on Waxman’s committee. He needs 30 votes to get any legislation out of the committee. At last count, Waxman has 18 yes votes (all Democrats), 19 maybes (all Democrats plus one Republican) and 22 no votes (all Republicans). He needs to get 12 votes out of the 19 maybes to pass his legislation.

In case you are wondering who is that lone Republican in the “maybe” column. That is Mary Bono Mack – who was married to the late Sony Bono (of Sony and Cher fame).

The firm of Cantor Fitzerald has a website that does an excellent job in tracking the cap-and-trade legislation. This post is based on the report from that website.

Change has come to EPA

 

As expected, the new Obama EPA has begun the process of “un-doing” some of the rules put into place by the previous administration. In December of 2006, the Bush EPA issued the TRI Burden Reduction Final Rule that expanded Form A eligibility for non-Persistent, Bioaccumulative, Toxic (non-PBT) chemicals to 5,000 pounds and allowed use of Form A for the first time for PBT chemicals under limited circumstances. This rule was met with concern over the availability of required data under the Emergency Planning and Community Right-to-Know Act (EPCRA) and resulted in a lawsuit by 13 states to restore the TRI Form A thresholds and usage to what they were prior to the 2006 rule.

 

On April 21, 2009, Lisa Jackson – the new EPA Adminstrator – reversed the 2006 rule and restored the original TRI Form A threshold. 

 

Following the rule signature, all reports on PBT chemicals must be submitted on the more detailed Form R. For all other chemicals, the shorter Form A may only be used if the annual reporting amount is 500 pounds or less and less than 1 million pounds of the chemical was manufactured, processed or otherwise used during the reporting year.

 

TRI-ME software and other reporting assistance materials are being revised and will be available soon. TRI reports for 2008 are due on July 1, 2009.

 

 

This is no April Fool’s Joke

On December 5, 2008, the Bush EPA issued final rules on several amendments to the SPCC (Spill Prevention Control and Countermeasure) regulations. These amendments included exemptions for some operations. These final rules were to be effective February 3, 2009.

On April 1, 2009, the  Obama EPA issued a final rule to postpone the effective date of the December 5 amendments till January 14, 2010. As expected, the Obama White House had ordered all federal agencies to delay and review all last-minute regulatory changes that were made by the out-going Bush Administration. 

The delay in implementing the December 5, 2008 amendments does NOT mean that you do not have to comply with the SPCC if you meet those SPCC thresholds.

Cap-and-trade program

It is official White House policy that the country reduces its green house gas emissions 80 percent by 2050.  The mechanism to achieve this is an economy-wide cap-and-trade program.

Just exactly what is a cap-and-trade program? It is a regulatory program by which a limit is placed on the amount of emission that a facility can emit. If the facility is able to come in under the limit (cap) through operational means or emission control, it can then sell (trade) its emission surplus in an open market. If  it is not able to meet the cap, it must go to the same open market to purchase (trade) emission credit to make up the deficit.

An excellent example of a cap-and-trade program is the California’s Regional Clean Air Incentives Market (RECLAIM) implemented by the South Coast Air Quality Management District (AQMD) in 1993 for NOx and SOx.

The AQMD issued its review or progress report of its RECLAIM awhile back and it is very instructive. Click on the links below to download the AQMD reports and read the lessons learned:

RECLAIM policy report part 1

RECLAIM policy report part 2

RECLAIM policy report part 3

How will the new administration and Congress impact environmental regulations

When President Obama takes office next year and the Democrat-controlled Senate and House convene, you can expect two things: A roll back of some of the new environmental rules that the Bush administration put in place and a step up on enforcement.

Congress has the power to reverse federal regulations that have become finalized during the last months of a previous administration.

Henry Waxman – a powerful Democrat congressman has just been elected chairman of the House Energy and Commerce Committee. This is one of the most powerful committees in Congress and it has jurisdiction over the environment and EPA. Waxman’s counterpart on the Senate side is Barbara Boxer – viewed as an environmental activist by many.

The politics of new environmental regulations

When EPA finalized its rule on excluding wastes that are to be reclaimed or recycled from the definition of RCRA solid waste on October 7, 2008, it was following a long tradition of rushing through final regulations in the waning days of an administration. These rules are to become effective December 29, 2008 – several weeks before a new administration takes over EPA in 2009.

The Clinton White House did the same “last minute” rush in finalizing environmental regulations. The difference was that they rushed to finalize more stringent regulations whereas the Bush White House is relaxing the regulations.

There are two ways the new Obama administration can reverse the last minute changes if it so chooses. One is for the Democratic Congress to pass a new law specifically reversing the new regulations. The other way is for the new EPA Administrator to go through the rule-making process all over again to reverse it. Both processes will take considerable amount of time.

One note about the new EPA regulation on redefining “RCRA solid waste”: it does not require state agencies to adopt it in their state regulations. What that means is that a state agency does not have to recognize EPA’s new regulation. So – check with your state agency after Decemebr 29, 2008 to see if it has adopted the new EPA regulation.