The Biden Administration recently published its Spring 2021 update to the Unified Agenda of Regulatory Actions. Under the Regulatory Flexibility Act agencies are required to publish a semiannual update of rulemakings expected to have a significant economic impact on small entities. Pursuant to Executive Order 12866, agencies typically also include regulatory priorities and (updated each Fall) the most significant regulatory activities planned for the next year. Agencies also may choose to include long-term actions on a separate list.
The Spring Update of current rulemakings includes 128 items listed for EPA, with OAR and OCSPP leading the pack with 67 and 28 rulemakings respectively. The rulemakings run the gamut from those that are judicially and statutorily mandated to “do-overs” of policies set by the Trump administration. Given the level of effort these rulemakings will require, it is clear why EPA is seeking over 1,000 new employees. Stakeholders with interests in specific EPA rules will find the various deadlines to be of interest. For example, the rule authorizing state enforcement authorities to require consideration of restructuring options for drinking water utilities, mandated by the America’s Water Infrastructure Act, has a statutory deadline of October 23, 2020, for a final rule. EPA does not plan to even propose a rule until 2022. Many of EPA’s announced priorities are not even on the current Agenda and instead are listed as Long-Term Actions. These include revisions to the definition of Waters of the United States (no timetable provided), revisions to the Safe Drinking Water Act Lead and Copper Rule (no timetable provided), setting maximum contaminant levels under the Safe Drinking Water Act for PFOA and PFOS (the statutory deadlines for a proposal in 2023 and a final rule in 2024 are listed), designating PFOA and PFOS as CERCLA hazardous substances (no timetable provided), and replacing the now vacated Affordable Clean Energy Rule that set emission guidelines for reducing power plant greenhouse gas emissions (no timetable provided). The lack of a timetable does not mean that EPA is not working on these actions. It just means that they won’t happen in the next 12 months and EPA is not choosing to provide additional transparency.
The Spring 2021 update to the Unified Agenda of Regulatory Actions, is available by clicking here.