EPA to Undertake 35 Priority Regulatory Reviews

August 26, 2011 Anthony DeRosa

EPA has released its Final Plan for Periodic Retrospective Reviews of Existing Regulations (the Plan) in response to President Obama’s charge in Executive Order 13563 for each federal agency to “develop…a…plan, consistent with law and its resources and regulatory priorities, under which the agency will periodically review its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency’s regulatory program more effective or less burdensome in achieving the regulatory objectives.” In this Plan, EPA defines 35 regulatory reviews for the initial review period – sixteen “early actions,” and 19 other reviews that are longer term actions. Of the 35 reviews, five are related to drinking water.

Broad initiatives:

During their retrospective reviews, EPA intends to seek ways to promote program effectiveness and burden reduction through the following broad initiatives:

Electronic reporting – EPA intends to replace outdated paper reporting with electronic reporting. EPA is considering expanding the electronic reporting concept to existing rules in additional program areas like the Safe Drinking Water Act, among others. In addition, based on the successful Internal Revenue Service model for enabling private vendors to build reporting tools, EPA intends to conduct a proof-of-concept pilot project to see if private vendors could create electronic tools for regulated entities to electronically report their environmental compliance data using an open platform approach.

Improved transparency – In order to improve regulatory effectiveness, EPA intends to enhance transparency by striving to expand public disclosure of pollution, compliance, and other regulatory information to more efficiently provide information to the public upon which choices can be made.

Innovative compliance approaches – The Agency intends to reduce pollution by improving compliance with EPA regulations in ways that are more effective and efficient while reducing burden. In illustration, EPA uses a drinking water example. Following the 1996 Safe Drinking Water Act amendments, researchers found that the simple requirement of mailing Consumer Confidence Reports (CCR) to consumers resulted in a 30-50% increase in utilities’ compliance rates with drinking water requirements in Massachusetts. While EPA is aware that the provision of CCRs is a means of increasing compliance, they are also aware that their production and distribution can be burdensome on water purveyors and states. EPA intends to review these reporting requirements to determine if burden may be reduced while compliance is maintained or increased.

Systems approaches and integrated problem-solving – A primary way to promote pollution prevention and sustainable outcomes is through broader adoption of problem-solving approaches that bring to bear all relevant tools – regulatory and non-regulatory – to provide integrated and comprehensive solutions to priority environmental problems.

Retrospective Reviews:

Of the 16 early actions intended to yield a specific step in 2011, two relate to drinking water:

National primary drinking water regulations – Long Term 2 Enhanced Surface Water Treatment: evaluating approaches that may maintain, or provide greater, public health protection. This review will include a look at alternatives to covering finished water reservoirs that could provide equivalent public health protection. This review was cited in a letter from Administrator Jackson concerning the requirement for New York City to cover one of their finished water reservoirs. The review process for LT2 is expected to begin in 2011 when EPA begins to update the 6-year review protocol to address microbial issues. Further, EPA plans to hold stakeholder meetings on LT2 in 2012.

The costs of regulations: improving cost estimates – EPA intends to evaluate why and to what degree compliance cost estimates developed prior to the issuance of a regulation differ from actual compliance costs realized after a regulation takes effect. EPA intends to explore, through an analysis initially focusing on 5 rules, possible sources of uncertainty and reasons why cost estimates diverge. One of the rules to be reviewed is the Arsenic Rule. The Agency plans to complete a draft report on the first five rules by fall 2011.

There are 19 regulatory reviews where actions are on a longer term schedule relative to the early actions listed in the previous section. The drinking water related issues here include:

Consumer confidence reports for primary drinking water regulations: providing for the open exchange of information – Here EPA will explore ways to promote greater transparency and public participation in protecting the Nation’s drinking water. There has been a major increase and diversity in communication tools since 1998. EPA will consider reviewing the Consumer Confidence Report Rule to look for opportunities to improve the effectiveness of communicating drinking water information to the public, while lowering the burden of water systems and states. One example suggested by water systems is to allow electronic delivery through e-mail, thereby reducing mailing charges. EPA estimates a cost savings of approximately $1 million per year, based on the anticipated reduction in postage and paper costs for systems serving ≥10,000 customers. EPA estimates that a retrospective review of the CCR could be completed within 12-16 months after the review cycle begins in fiscal year 2012.

National primary drinking water regulations for lead and copper: simplifying and clarifying requirements – Under the ongoing LCR review, EPA intends to seek ways to simplify and clarify requirements imposed on drinking water systems to maintain safe levels of lead and copper in drinking water. EPA currently expects to issue a proposed rulemaking in 2012.

Contaminants under the Safe Drinking Water Act (SDWA): coordinating regulatory requirements – EPA intends to coordinate drinking water regulatory requirements and regulate more cost-effectively by addressing contaminants as groups as part of the Agency’s Drinking Water Strategy to help streamline implementation of drinking water rules for the regulated community.. The Agency plans to develop one national drinking water regulation (NDWR) covering up to sixteen carcinogenic Volatile Organic Compounds (VOCs). EPA expects to issue a proposed rulemaking in the fall of 2013.

EPA emphasizes that Executive Order 13563 calls not for a single exercise, but for “periodic review of existing significant regulations.” There is a section of the Plan that defines a process that EPA intends to use for predictable, transparent future reviews, to be conducted every five years. EPA intends to begin each review period with a public solicitation, during which time EPA would ask the public to nominate any of the Agency’s existing regulations for retrospective review. The first review period is expected to last from spring 2011 to spring 2016, the next period would then span spring 2016 to spring 2021, and subsequent periods would continue on five-year cycles.

EPA plans to use the Semiannual Regulatory Agenda and relevant portions of the EPA website to regularly report on the reviews that are underway. The complete Plan can be accessed at http://www.epa.gov/lawsregs/rulemaking/retrospective/index.html.