Tracking Environmental Midnight Rules as the Clock Ticks down on the Trump Administration
With a new year approaching, so does the imminence of a new presidential administration. The Biden team and transition team have laid out environmental policies since early in the campaign. It is clear the new administration will bring many changes to the regulated community. But, where the Trump administration ends up is equally important. Midnight rules—rules created during the lame duck period of an administration and pushed through before inauguration—have long been a trend of outgoing administrations.
Incoming administrations often issue a regulatory freeze shortly after inauguration to "pause" new regulations that did not go into effect, and the incoming Biden administration has already indicated it will do so. We are tracking the status of environmental regulations that have been published since the election and those anticipated before the inauguration. We will update this tracker through the end of the Trump administration.
Updated: January 20, 2021
Already published in the Federal Register
| Regulatory Item | Rule Stage | Signed | Date in Federal Register | Effective Date or Comment deadline | Brief Summary |
| National Emission Standards for Hazardous Air Pollutants: Phosphoric Acid Manufacturing | November 3, 2020 | Effective November 3, 2020 | Revised mercury MACT floor | ||
| Once In, Always In | November 19, 2020 | Effective January 19, 2021 | Allows major sources to be reclassified at any time as area sources if they reduce potential emit below 10 tons per year of any specific pollutant and below 25 tons per year of any combination of pollutants | ||
| Forest Service NEPA Compliance | November 19, 2020 | Effective November 19, 2020 | Adds new categorical exclusions and combines several pre-existing categories; adds a Determination of NEPA Adequacy so that prior analysis can cover similar subsequent actions | ||
| Risk Assessment of EtO | November 20, 2020 | Comments due January 19, 2021 | EPA's human health and/or ecological risk assessment is available for ethylene oxide | ||
| PFAS Interim Strategy NPDES | November 22, 2020 | Recommends permit writers include PFAS phased-in monitoring and control requirements into permits (including MS4 and storm water) and continue to build information sharing capabilities for permit writers | |||
| Procedures for Considering Environmental Impacts | November 23, 2020 | Comments due December 23, 2020 | Codifying DOT Order 5610.1C, which outline department policy for complying with NEPA | ||
| PSD and NNSR: Project Emissions Accounting | November 24, 2020 | Effective December 24, 2020 | To determine if project is a major modification: (1) will there be a significant increase or a decrease in emissions? (2) if yes, determine if there is a net increase in emissions | ||
| CERCLA Financial Responsibility for EGUs | December 2, 2020 | Effective January 4, 2021 | Exclude electric power generation, transmission, and distribution; petroleum and coal products manufacturing; and chemical manufacturing industries from financial responsibility record keeping requirements under § 108(b) | ||
| NEPA Implementing Procedures DOE | December 4, 2020 | Effective January 4, 2021 | Exclude harms agency cannot control, such as operation of natural gas facilities, from NEPA analysis for natural gas exportation | ||
| Maui implementation guidance | Guidance | December 10, 2020 | Comments due January 9, 2021 | "Functional equivalent" determined by analysis of factors in Maui plus system design and performance | |
| Test Procedure Interim Waiver Process | December 11, 2020 | Effective January 11, 2021 | DOE must notify applicant for interim waiver within 45 business days of receipt of application | ||
| CWA 402/404 criminal intent standard | December 14, 2020 | Comments due January 13, 2021 | State and tribal NPDES programs may use any negligence standard, including recklessness or gross negligence, for criminal liability | ||
| PFAS Significant New Use Rule | Guidance | December 16, 2020 | Comments due January 15, 2021 | Need SNUF if importing article coated with PFAS | |
| Oil and Gas and Sulfur Operations on the Outer Continental Shelf-Revisions to the Requirements for Exploratory Drilling on the Arctic Outer Continental Shelf | December 9, 2020 | Comments due February 8, 2021 | Revises regulations for exploratory drilling related to factors evaluated for SOO, pollution prevention, Control and Containment Equipment, relief rig capabilities, timing/requirements for IOP, contents of IOP, data/info for EP and DPP | ||
| Interim Guidance on the Destruction and Disposal of Perfluoroalkyl and Polyfluoroalkyl Substances and Materials Containing Perfluoroalkyl and Polyfluoroalkyl Substances | December 22, 2020 | Comments due February 16, 2020 | To satisfy the National Defense Authorization Act for Fiscal Year 2020, Public Law No: 116-92, this document provides options to manage PFAS waste that may destroy or control its migration into the environment. It identifies a number of data gaps that, if filled, could allow for additional and specific recommendations in the future. | ||
| CCR Beneficial Reuse | December 22, 2020 | Comments due February 22, 2021 | Proposed: (1) replace static numerical threshold with site-specific threshold or use combination of mass and site specific; (2) use single approach regardless of pile location | ||
| Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process | December 23, 2020 | December 23, 2020 | EPA must: (1) prepare and consider benefit-cost analysis for "significant" regulations under CAA; (2) use best practices for BCA consistent with EPA’s Guidelines for Preparing Economic Analyses and the Office of Management and Budget’s Circular A-4; (3) include summary of BCA results, benefits considered, costs considered and how agency considered BCA in all proposed and final regulations; (4) exclude consideration ancillary benefits | ||
| Ozone NAAQS | December 31, 2020 | Retaining primary and secondary ozone standards | |||
| Updated: Strengthening Transparency in Regulatory Science | Updated: Final Rule | Updated: January 6, 2021 | Public access to data, models and studies supporting pivotal science and pivotal regulatory changes, sufficient to support independent verification | ||
| Updated: Final Risk Evaluation for 1,4-Dioxane | December 31, 2020 | Evaluating risks of 1,4-dioxane to 24 conditions of use and determining that the chemical poses an unreasonable risk in 13 of those categories but no unreasonable risk to the general population. | |||
| Airline Manufacturer GHG Rule | January 11, 2021 | January 11, 2021 | |||
| Updated: Notice of Availability – Preliminary Effluent Guidelines Plan 14 | January 11, 2021 | Provides update to Preliminary Plan 14 and comments received during public comment period. The Plan 14 presents early results from new analyses and provides updates on EPA’s reviews of industrial wastewater discharges and treatment technologies, including analyses of industrial sources and discharges of nutrients, proposed treatment technology reviews, and the effluent limitations guidelines database. This includes updates related to the petroleum refining category, PFAS multi-industry, and updates related to steam EGUs and an upcoming request for information to PFAS manufacturers. | |||
| Updated: Pollutant-Specific Significant Contribution Finding for Greenhouse Gas Emissions From New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units, and Process for Determining Significance of Other New Source Performance Standards Source Categories | Final Rule | January 13, 2021 | March 15, 2021 | Finalizing a significant contribution finding for purposes of regulating source categories for greenhouse gas emissions, under section 111(b) of the Clean Air Act for electric generating units, and reaffirming that EGUs remain a listed source category. | |
| Updated: Standards of Performance for Volatile Organic Liquid Storage Vessels (including petroleum liquid storage) for which construction, reconstruction or modification commenced after July 23, 1984 | January 19, 2021 | January 19, 2021 | Finalizing amendments to allow certain owners and operators of regulated tanks equipped with either an external floating roof or internal floating roof to voluntarily elect to comply with alternative requirements. | ||
| Updated: Applying the Supreme Court's County of Maui v. Hawaii Wildlife Fund Decision in the Clean Water Act Section 402 National Pollutant Discharge Elimination System Permit Program
| January 21, 2021 |
Awaiting publication in the Federal Register
| Regulatory Item | Rule Stage | Signed | Date in Federal Register | Effective Date or Comment deadline |
| CCR Beneficial Reuse | December 22, 2020 | Comments due 60 days after publication in FR | ||
| PM NAAQS | December 14, 2020 | Effective Day Published in FR | ||
| National Primary Drinking Water Regulations: Lead and Copper Rule Revisions | December 21, 2020 | 60 days after publication in the Federal Register |
Awaiting Administrator Signature
| Regulatory Item | Rule Stage | Signed | Date in Federal Register | Effective Date or Comment deadline | Brief Summary |
| Regulations Governing Take of Migratory Birds | Awaiting Final Rule | February 3, 2020 | Comments closed March 19, 2020 | Restrict definition of taking to include only actions directed at birds, their nests or their eggs | |
| Regulations for Listing Endangered and Threatened Species and Designating Critical Habitat | Awaiting Final Rule | August 5, 2020 | Comments closed September 4, 2020 | Proposing adding a definition of habitat to regulations | |
| Regulations for Designating Critical Habitat | Awaiting Final Rule | September 8, 2020 | Comments closed October 8, 2020 | Codifies process for excluding areas from critical habitat |
