Regulatory Update

Compiled by WaterWorld.com staff

WASHINGTON, D.C., Nov. 13, 2000—The Environmental Protection Agency (EPA) and the federal government are working on several issues this week including a reported possible list of 88 surprise regulations, an update of scientific guidelines and a reauthorization of the national estuary program.

EPA planning 'October Surprise' of 88 new regulations
Nov. 10, 2000 (Human Events)—Congressional investigators recently uncovered an effort by the Environmental Protection Agency (EPA) to promulgate 88 "midnight" regulatory decisions that would undercut a possible Republican administration.

The regulations, dubbed by congressional aides as a classic "October Surprise," cover a host of environmental matters, including rules governing toxics, water pollution, ozone and automobile emissions. Some were already mandated by courts to take effect at the end of the year, but many others are new initiatives undertaken by EPA. In addition, EPA is proposing numerous interim final rules, policy statements and guidance documents.

On August 25, the Washington Post reported that EPA had prepared a list of 67 regulations to be implemented at year's end. On September 11, investigators for the subcommittee on Natural Economic Growth, Natural Resources and Regulatory Affairs, chaired by Rep. David McIntosh (R.-Ind.), demanded that EPA turn over the list.

John Spotila, administrator of the Office of Management and Budget (OMB), in a speech at an American Bar Association forum, acknowledged that OMB had reviewed the list. Three days later, McIntosh staffers again asked EPA produce it, but agency officials stonewalled, declaring that McIntosh needed to submit a formal letter to obtain the requested information.

EPA, according to a McIntosh aide, questioned the veracity of the Post story. "The agency does not know the source of the Washington Post's information nor understand the number that was cited," EPA Deputy Administrator W. Michael McCabe wrote in a letter to McIntosh on September 22.

To McIntosh's surprise, McCabe produced a list, but one with 88, not 67, impending regulatory decisions.

Red Tape at Midnight
In an attempt to insulate the agency from criticism, an EPA staffer subsequently sent an unsigned note to Barbara Kahlow, counsel to McIntosh's subcommittee, saying that the agency had "neglected to copy the enclosure [the 88 potential regulatory decisions] onto privileged paper." In effect, EPA tried retroactively-albeit unsuccessfully-to prevent McIntosh from making the information public.

Moreover, the administration still has not printed the October 2000 "Regulatory Plan and Unified Agenda of Federal Regulatory and Deregulatory Actions," created by executive order in 1981. The manual identifies "regulatory priorities" and contains details on significant regulatory actions and, by law, must be printed in April and October of each year. The 88 midnight regulations presumably would be included in the manual.

But with Congress in session throughout October, the administration simply delayed printing the manual to side-- step congressional oversight. "It is pretty clear what is going on here," said an aide to McIntosh. "The administration was spooked by the fact that Congress was still here. So they're just keeping this report [Unified Agenda] under wraps."

The cost these regulations will impose on business is not yet clear. There will likely be an effort, according to congressional sources, to pressure a Bush Administration-assuming the Texas governor wins November 7-into overturning them. But this will not be easy.

First, Bush officials can place a freeze on the regulations for 30 lays, beginning the day after they are to become law. During that time, Bush can ask Congress to invoke the Congressional Review Act (CRA) to strike them down. Congress can then, under the terms of the act, scrutinize the regulations for up to 60 days, and if necessary, overrule them. But the prospect that it will appears dim: Since it became law in 1996, despite thousands of new rules and regulations, the CRA has never been invoked.

Steps taken to strengthen water quality standards
To better protect public health and provide cleaner water nationwide, EPA is updating scientific guidelines that will result in stronger, more protective water quality standards. On Nov. 3, EPA revised its methodology for developing water quality criteria. States and authorized tribes use EPA's published criteria in setting water quality standards but may also use the methodology to develop their own criteria. Today's revisions incorporate significant scientific advances in key areas such as cancer and non-cancer risk assessments, exposure assessments, and bioaccumulation in fish. EPA, states, and tribes will use the new guidelines to update existing water quality criteria in the future. The availability of the revised "Methodology for Deriving Ambient Water Quality Criteria for the Protection of Human Health," was announced in the Nov. 3, Federal Register. The methodology, and a fact sheet are available on EPA's Office of Water web site: www.epa.gov/water, under "What's New."

Congress reauthorizes national estuary program, Chesapeake Bay, Clean Lakes and other programs
On Nov. 7, President Clinton signed the Estuaries and Clean Waters Act of 2000. This legislation reauthorizes the National Estuary Program, the Chesapeake Bay Program, the Long Island Sound Program, the Clean Lakes Program, and authorizes pilot programs of alternative water sources, a Lake Ponchatrain restoration program and funds for the cleanup of the Tijuana River near San Diego. It establishes a national goal of restoring one million acres of estuary habitat by 2010 and authorizes a total of $275 million over the next five years for matching funds for local estuary habitat restoration projects. It also establishes an Estuary Habitat Restoration Council that is responsible for developing a National Habitat Restoration Strategy within one year and for reviewing and establishing funding priorities among restoration projects. EPA serves on the Council, which is chaired by the U.S. Army. To view the law, visit: www.epa.gov/owow/estuaries.