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November 05, 2012
10-year reviews of major regulations

Affected entities and particularly, affected small businesses should avail themselves of a new opportunity to influence EPA’s thinking on three major regulations.  Specifically, the Agency has announced that it is undertaking 10-year reviews of the heavy-duty engine and vehicle standards and highway diesel fuel sulfur control requirements (heavy-duty review); the national emissions standards for hazardous air pollutants for composites production (NESHAP plastics review); and the national pollutant discharge elimination system (NPDES) permit regulation and effluent limitations guidelines and standards for concentrated animal feeding operations (CAFO review). 

Regulatory Flexibility Act

The 10-year reviews are required under Section 610 of the Regulatory Flexibility Act (RFA), which directs federal agencies to assess the continued need for regulations that are subject to public notice and comment and that have or will have a significant economic impact on a substantial number of small entities.  Following the review, the Agency decides whether to continue a rule unchanged, amend it, or withdraw it.

Heavy-duty review 

This 2001 action establishing new emissions standards took effect with model year 2007 heavy-duty highway engines and vehicles. The standards were based on the use of high-efficiency catalytic exhaust emissions control devices or comparably effective advanced technologies. Because these devices are damaged by sulfur, the rule also significantly reduced the level of sulfur in highway diesel fuel by mid-2006.  According to the EPA, the program provided substantial flexibility for refiners, especially small refiners, and for manufacturers of engines and vehicles.

NESHAP plastics review

The 2003 final rule includes standards for both new and existing sources of HAPs as well as monitoring, performance testing, recordkeeping, and reporting requirements related to those standards.  Regulated areas include production and ancillary processes used to manufacture products with thermoset resins and gel coats. The standards contain a HAP emissions threshold that distinguishes between sources that typically can meet the HAP emissions limits using pollution prevention and those that must use add-on controls.  The EPA estimated that 279 of the 357 companies owning reinforced plastic composites facilities are small businesses.  According to the Agency, provisions to reduce the adverse impact on small business, including minimized reporting and recordkeeping requirements and establishing separate floors for specialty products, were incorporated into the final rule.

CAFO review

The 2003 CAFO rule expanded the number of operations subject to Clean Water Act regulations and included requirements to address the land application of manure.  Under the action, all CAFOs are required to seek NPDES permit coverage.  The EPA says it took several steps to minimize the rule’s impact on small businesses, including regulatory revisions designed to focus on the largest producers, elimination of the mixed animal calculation for operations with more than a single animal type for determining which AFOs are CAFOs, raising the duck threshold for dry manure handling duck operations, and adopting a dry-litter chicken threshold higher than proposed.  Subsequently, as a result of a series of court decisions, the EPA narrowed the universe of entities that must apply for a NPDES permit.

Five areas of review

Under the RFA, 10-year reviews must consider four factors:

  • The nature of complaints or comments received concerning the rules;
  • The complexity of the rules;
  • The extent to which the rules overlap, duplicate, or conflict with other federal, state, or local government rules; and
  • The degree to which the technology, economic conditions, or other factors have changed in areas affected by the rules.

The EPA states that it is encouraging small entities to provide comments on the need to change these rules, and especially how the rules could be made clearer and more effective and if there is the need to remove requirements that conflict or overlap with other federal or state regulations.

Comments must be received on or before December 31, 2012.

EPA’s announcement and details on how to submit comments were published in the October 31, 2012, FR. 

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