June 3, 2023

Washington Wire: Administration Releases Unified Agenda

01/11/2023

 

Administration Releases Unified Agenda
 
On January 4, 2023, the Biden administration released the semi-annual preview of its regulatory priorities for the coming year. Issued by every administration and formally known as the Unified Agenda, the release offers a blueprint on how the Administration will move forward to implement their priorities within each agency.
 
Several top One Voice interests appear in the Unified Agenda including plans to initiate a Small Business Regulatory Enforcement Fairness Act (SBREFA) advisory panel this month for the Occupational Safety and Health Agency’s (OSHA) upcoming heat standard; issue the next round of multi-pollutant emissions standards for light and medium duty vehicles model years 2027 and later in March with a final rule coming in March 2024; issue a proposed rule restoring portions of the Obama-era Tracking of Workplace Injuries and Illnesses rule this upcoming March; release a proposed rule in July 2023 to update Lock-Out/Tag-Out; issue a proposed WOTUS phase 2 rule in November with a  final rule issued in July 2024; issue a final fine particulate matter (PM2.5) national ambient air quality standard (NAAQS) in August; issue a proposed rule on occupational exposure to  crystalline silica in September; issue a proposed rule making National Apprenticeship System enhancements to more clearly establish pipelines for registered and pre-apprenticeships in June 2023; issue a final independent contractor classification rule in May 2023; and release of a request for information by the Department of Energy in May related to the advanced technology vehicle manufacturing loan program.

 

 
  
Final Interim WOTUS Definition Announced
 
The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) have announced a final interim definition of "waters of the United States" (WOTUS) under the Clean Water Act. The final rule, announced on December 30, 2022, and soon to be published in the Federal Register, provides a durable definition that codifies the pre-2015 definition while updating the definition to reflect “Supreme Court decisions, the science, and the agencies’ technical expertise.” The agencies are anticipated to propose a second rule to build on this interim definition's foundation in the coming year. 
 
The rule interprets WOTUS to include: traditional navigable waters; the territorial seas; interstate waters; most impoundments of WOTUS, like reservoirs; tributaries to traditional navigable waters, interstate waters, the territorial seas, and impoundments that meet either the relatively permanent standard or the significant nexus standard; wetlands adjacent to other jurisdictional waters, that meet either the relatively permanent standard or the significant nexus standard; and "other waters" that meet either the relatively permanent standard or the significant nexus standard. 
 
The relatively permanent test includes “relatively permanent, standing or continuously flowing bodies of water,” such as streams, rivers, or lakes; and wetlands that have a “continuous surface connection” to other waters subject to the CWA. The significant nexus standard, states wetlands must have a “significant nexus” to traditionally navigable waters which “exists when the wetland, either alone or in connection with similarly situated properties, significantly impacts the chemical, physical, and biological integrity of a traditionally navigable water, the territorial seas, or interstate waters.”
 
The rule does not include distance limits when determining if a wetland is adjacent to jurisdictional water or if a body of water meets either the relatively permanent or significant nexus standards, as the EPA determined that distance between jurisdictional water and its adjacent wetlands may vary by region and climate. 
 
While primarily, under the rule the standards for determining if tributaries, adjacent wetlands, and additional waters fall under the jurisdiction of the Clean Water Act are the relatively permanent and significant nexus tests, the final rule does codify eight exclusions from the WOTUS definition including prior converted cropland, waste treatment systems, ditches, artificially irrigated areas, artificial lakes or ponds, artificial reflecting pools or swimming pools, waterfilled depressions, and swales and erosional features. 
 
The issue is also being considered by the Supreme Court in its review of Sacket v. EPA, a long a long-running dispute regarding whether certain wetlands are subject to protection under the CWA. In the case, the Court is reviewing what standard is to be used when deciding if a body of water qualifies as a WOTUS. Specifically, the Court is examining whether EPA’s reach extends to wetlands that are connected below the surface to federal waters.

 

 

 
EPA Proposes Tightened PM2.5 Standard
 
On January 5, 2023, the Environmental Protection Agency (EPA) proposed to strengthen the National Ambient Air Quality Standards (NAAQS) for fine particulate matter (PM2.5) or soot. PM2.5 is a fine inhalable particle resulting from chemical reactions emitted from manufacturing facilities, power plants, and automobiles that are generally 2.5 micrometers and smaller – typically thirty times smaller than a human hair. EPA first established NAAQS for particulate matter in 1971 and has since set and revised standards numerous times for fine particles (PM2.5) and coarse particles (PM10).
 
EPA is proposing to lower the annual standard from its current level of 12 micrograms per cubic meter (µg/m3) to within the range of 9 – 10 µg/m3. The EPA is also proposing to retain all other PM standards, including the primary (health-based) and secondary (welfare-based) 24-hour PM2.5 standard at the level of 35 µg/m3, the secondary annual PM2.5 standard at the level of 15 µg/m3 and the primary and secondary 24-hour PM10 standards at the level of 150 µg/m3.
 
The EPA will be accepting public comments on the proposed rule along with comments on whether, in a final rule, the EPA should revise the primary annual PM2.5 standard as low as 8.0 µg/m3 or up to 11.0 µg/m3. The agency is also soliciting comments on whether the primary and secondary 24-hour PM.25 limits should be tightened, rather than retained, to as low as 25 µg/m3.  
 
Along with accepting comments, the EPA plans on holding a virtual public hearing to hear from stakeholders. The EPA plans to issue a final rule by August that could impose limits on economic activity by manufacturers, producers, and other industries.  

 

 
  
ITA Launches Global Aluminum Trade Monitor
 
On January 3, 2023, the U.S. Department of Commerce’s International Trade Administration (ITA) launched a new online tool to track global aluminum trade flows. The free tool allows users to create custom data visualizations including detailed charts across the top global aluminum importing and exporting countries and seven aluminum product categories such as bars, rods, and profiles; pipes and tubes; plates, sheets, and strip; and wire.   
 
The monitor will track aggregate trends in U.S. imports of certain aluminum products in almost real-time, providing an early indication of trends.  The AIM monitor will also identify surges of specific aluminum products suggesting potential transshipment and circumvention relating to these products. The comparative analysis tool will be updated every two weeks via ITA's "Aluminum Import Monitor," which was created in 2020. 
 
The U.S., Canada, and Mexico agreed in 2019 to set up processes for monitoring aluminum trade after the U.S. agreed to eliminate Section 232 tariffs on steel and aluminum imposed on its North American partners. The Global Aluminum Trade Monitor can be found here: https://www.trade.gov/data-visualization/global-aluminum-trade-monitor and joins ITA’s U.S. Steel Import Monitor, which can be found here: https://www.trade.gov/data-visualization/us-steel-import-monitor.