NRDC Will Challenge EPA’s Navigable Waters Protection Rule: NRDC filed a notice of intent to sue EPA for violating the Endangered Species Act (ESA) in promulgating the Navigable Waters Protection Rule. The January 2020 rule limits the types of waterways protected by federal law, removing protections for smaller bodies of water. According to NRDC, the rule fails to protect wetlands and intermittent streams that provide water for protected desert species. NRDC argues that because the rule removes Clean Water Act (CWA) protections for wetlands and streams that endangered and threatened species depend on for habitat and food, “there is no question that the rule ‘may affect’ ESA-listed species.” NRDC states that this impact requires EPA to consult with the Fish and Wildlife Service before introducing new regulations.

EPA And DOT Release Final SAFE Vehicles Rule: On March 31, 2020, EPA and the U.S. Department of Transportation’s National Highway Traffic Safety Administration (NHTSA) released the final Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule setting corporate average fuel economy (CAFE) and carbon dioxide (CO2) emissions standards for model years (MY) 2021-2026 passenger cars and light trucks. In its March 31, 2020, press release, EPA states that the final rule will increase stringency of CAFE and CO2 emissions standards by 1.5 percent each year through MY 2026, as compared with the standards issued in 2012 that would have required about five percent annual increases. EPA notes that this is a change from the proposal issued in 2018. According to EPA, the majority of automakers are not meeting the 2012 standard without resorting to the use of credits. Specifically, EPA is amending CO2 standards for MYs 2021 and later, and NHTSA is amending fuel economy standards for MY 2021 and setting new fuel economy standards for MYs 2022-2026. The final rule withdraws a waiver previously provided to California under the Clean Air Act (CAA). EPA has posted a pre-publication version of the final rule. The final rule will take effect 60 days after publication in the Federal Register.

EPA Requests Comment On Designations And Recommendations For Recycled-Content Products: On April 7, 2020, EPA announced that it is seeking comment on its current list of items that are or can be made from recovered materials and its recommendations to federal agencies on purchasing these items. Resource Conservation and Recovery Act (RCRA) Section 6002 requires EPA to designate items that are or can be made with recovered materials and to recommend practices for procurement of such items. EPA has designated 61 items in eight product categories in a Comprehensive Procurement Guideline (CPG) and has issued recycled-content recommendations and procurement specifications for these items in a series of Recovered Materials Advisory Notices (RMAN) published in the Federal Register. EPA states in its April 7, 2020, Federal Register notice that it requests comments on the existing five CPGs and the five corresponding RMANs. 85 Fed. Reg. 19473. These five CPGs and RMANs pertain to 61 items in the following eight product categories: Paper and Paper Products; Vehicular Products; Construction Products; Transportation Products; Park and Recreation Products; Landscaping Products; Non-paper Office Products; and Miscellaneous Products. Comments are due July 6, 2020.

EPA Updates Air Sensor Toolbox: On April 1, 2020, EPA announced the availability of its newly designed and updated online Air Sensor Toolbox. The toolbox offers easier navigation and more information on what EPA is doing to advance and support the development of air sensors for measuring local air quality. Users can:

• Learn about air sensor performance, evaluation, and use;

• Understand air sensor readings;

• Explore EPA’s air sensor research projects and activities; and

• Find resources for air sensor projects.

EPA Submits Proposed Rule To OMB On Increasing Consistency And Transparency In Considering Benefits And Costs In The CAA Rulemaking Process: On April 10, 2020, EPA submitted to the Office of Management and Budget (OMB) a proposed rule on “Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process.” According to an item in the fall 2019 Unified Agenda, as part of developing a consistent and transparent EPA-wide regulation, EPA will first develop proposed changes to the regulatory development process that are intended to improve consistency, reliability, and transparency of its treatment of CAA provisions related to benefits and costs. The item states that this action will provide the public with a better understanding on how EPA is evaluating benefits and costs when developing CAA regulatory actions and allow the public to provide better feedback to EPA on potential future proposed rules.

EPA Issues Interim Guidance Concerning Health And Safety Decisions At Cleanup Sites During COVID-19 Pandemic: On April 10, 2020, EPA issued interim guidance to its regional offices to ensure that decisions about new or ongoing cleanup activities at sites across the country are made with the health and safety of communities, state and tribal partners, EPA staff, and contractors as the priority. EPA states in its announcement that the interim guidance focuses on decision making at emergency response and longer term cleanup sites where EPA is the lead agency or has direct oversight of, or responsibility for, the cleanup work. This includes, but is not limited to, Superfund cleanups, RCRA corrective actions, TSCA polychlorinated biphenyl (PCB) cleanups, Oil Pollution Act spill responses, and Underground Storage Tank Program actions.

The interim guidance includes directions to the EPA regional offices on the following:

• Considering site-specific factors when deciding on whether response actions will continue or be reduced, paused, or resumed;

• Applying applicable enforcement instruments;

• Conducting non-field site work; and

• Planning for next steps after pausing site work.

OMB Reviewing Interim Final Rule On Continuous Emission Monitoring Quality Assurance Requirements During National Emergencies: EPA submitted to OMB on April 10, 2020, an interim final rule on continuous emission monitoring quality assurance requirements during national emergencies. According to EPA, the interim final rule is intended to protect workers during the coronavirus pandemic. It would allow industrial facilities to delay certain required quality assurance tests.

EPA Will Propose Updates To Existing Gasoline, Diesel, And Other Fuels Regulations: EPA announced on April 13, 2020, that it will issue a proposed rule intended to streamline and modernize its existing fuels regulations by eliminating “costly and unnecessary” duplication. EPA will propose to streamline existing fuels regulations by deleting expired provisions, eliminating redundant compliance provisions, and removing unnecessary and out-of-date requirements. The proposed rule will replace them with a single set of provisions and definitions that will apply across all gasoline, diesel, and other fuels programs. EPA states that it is proposing the regulations would replace the existing regulations on January 1, 2021. EPA notes that it “believes having an implementation date at the beginning of a new compliance period will provide for a smooth transition to new regulatory requirements.” Publication of the proposed rule in the Federal Register will begin a 60-day public comment period.

EPA Proposes To Retain NAAQS For PM: EPA announced on April 14, 2020, its proposal to retain, without changes, the National Ambient Air Quality Standards (NAAQS) for particulate matter (PM) including both fine particles (PM_2.5) and coarse particles (PM₁₀). According to the announcement, the proposal “comes after careful review and consideration of the most current available scientific evidence and risk and exposure information, and with consultation and confirmation by the agency’s independent science advisors.” The fact sheet provides the following summary of the proposed rule:

• Primary (Health) Standards for PM_2.5:

  • Annual standard: EPA is proposing to retain the current annual standard, with its level of 12.0 micrograms per cubic meter (μg/m³). An area would meet the standard if the three-year average of its annual average PM_2.5 concentration is less than or equal to the level of the standard; and

  • 24-hour standard: EPA is proposing to retain the existing 24-hour standard, with its level of 35 μg/m³. An area would meet the 24-hour standard if the 98th percentile of the yearly distribution of 24-hour PM_2.5 concentrations, averaged over three years, is less than or equal to 35 μg/m³.

• Primary (Health) Standard for PM₁₀:

  • EPA is proposing to retain the existing 24-hour primary standard for PM₁₀, with its level of 150 μg/m³. An area meets the 24-hour PM₁₀ standard if it does not exceed the 150 μg/m³ level more than once per year on average over a three-year period.

• Secondary Standards for Particle Pollution:

  • EPA’s current secondary standards for particle pollution are identical to the primary standards for PM_2.5 and PM₁₀, except for the annual PM_2.5 standard, which has a level of 15.0 μg/m³. After reviewing the science on particle pollution, analysis by EPA experts and advice from the agency’s independent science advisors, the Clean Air Scientific Advisory Committee (CASAC), EPA is proposing that the current secondary standards are adequate to protect against PM-related visibility impairment, climate effects, and effects on materials.

EPA will accept public comment for 60 days after the proposed standards are published in the Federal Register. EPA states that it will announce details on virtual public hearings “shortly.” According to the announcement, EPA will issue the final standards by the end of 2020.