ILMA Compoundings January 2018 - 39

ILMA previously
addressed its
concerns about the
EPA's sue and settle
practices in comments
submitted to the
Department of Commerce in March 2017."
court within 15 days of receipt;
reaching out to and including any
states and/or regulated entities
affected by potential settlements
or consent decrees;
* Publishing a list of consent decrees and settlement agreements
that govern agency actions within
30 days, along with any attorney
fees paid, and updating it within
15 days of any new consent decree or settlement agreement;
* Expressly forbidding the practice of entering into any consent
decrees that exceed the authority
of the courts;
* Excluding attorney's fees and
litigation costs when settling with
those suing the agency;
* Providing sufficient time to issue
or modify proposed and final
rules, take and consider public
comment; and
* Publishing any proposed or modified consent decrees and settlements for 30-day public comment
and providing a public hearing
on a proposed consent decree or
settlement when requested.
ILMA previously addressed its concerns about the EPA's sue and settle
practices in comments1 submitted

to the Department of Commerce in
March 2017. ILMA noted the agency's
expansion of the Spill Prevention,
Control and Countermeasure2 (SPCC)
program beyond "oil" to include
tanks storing "hazardous substances"
through a court-approved settlement
that includes an aggressive rulemaking schedule, with a final rule to be
promulgated in 2019.
The rulemaking, if finalized, would
result in a massive expansion of the
EPA's SPCC program and would have
a substantial cost impact on thousands of facilities and manufacturing
processes, including those of ILMA
members and their customers.
Additionally, the House of Representatives passed3 the "Stop Settlements Slush Fund Act" (H.R. 732) by
a 238-183 vote. The measure, sponsored by House Judiciary Committee
Chairman Bob Goodlatte (R-Va.),
seeks to legislatively curb many of the
same issues addressed by Pruitt.
More specifically, H.R. 732
disallows government payments of
attorneys' fees and costs to an entity
or person per the terms of a settlement
agreement, and it requires that each
federal agency electronically submit
to the Congressional Budget Office
(CBO) a report that contains each
settlement agreement that the agency
entered into which directs payment to
a particular individual or entity.
Environmentalists have criticized
Pruitt's directive, arguing that it appears aimed at curtailing their efforts
to hold the EPA to mandatory duties

set forth in the environmental statutes
the agency administers. An EPA
employees' union also has complained
that Pruitt "falsely" accused agency
lawyers of engaging in unlawful and
unethical behavior.
H.R. 732 and Pruitt's directive
should address many concerns regarding "backdoor" rulemakings and other
regulatory actions that have significant
compliance and cost ramifications for
a variety of industry sectors, including
ILMA members. Overall, the policy
shift is representative of further efforts
by the Trump administration and the
Republican-controlled Congress to
reduce the mounting regulatory burden on the private sector and increase
transparency, an action welcomed by
many people and industries.
1 The Department of Commerce requested
comments to respond to President Donald
Trump's Jan. 24, 2017, memorandum "Streamlining Permitting and Reducing Regulatory
Burdens for Domestic Manufacturing." ILMA's
comments addressed concerns with a number
of regulations beyond the SPCC program and
can be reviewed on ILMA's website.
2 Section 311 of the Clean Water Act authorizes
the SPCC program.
3 As this article goes to print, it is unknown
whether the Senate will propose and pass a
companion bill.

Bryant serves as regulatory
counsel to ILMA through
Bassman, Mitchell, Alfano &
Leiter Chtd. He may be reached
at 202-386-7670 or dbryant@bmalaw.net.

ILMA Compoundings January 2018

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