Download the full report for August 2011 (PDF)
Recent Developments (Updated August 8, 2011)
EPA Declines to Revise Lead Renovation Testing Requirements
EPA declined to impose stricter testing requirements on certain lead renovation projects after concluding that the information before the Agency, on balance, did not support the changes. As part of its 2008 lead renovation, repair and painting program rule, EPA required post-cleanup verification consisting of a “white glove” test with optional dust wipe testing. EPA subsequently proposed to require certain larger projects to conduct dust wipe sampling and laboratory analysis to verify cleanup. Although EPA rejected stricter testing requirements, the Agency finalized other minor changes to the lead renovation rule, which applies to commercial renovation activities involving the disturbance of lead-based paint in pre-1978 housing and child-occupied facilities. The recent rulemaking can be found in the August 5, 2011 Federal Register at: www.gpo.gov/fdsys.
EPA Reconsiders Rules Government Hazardous Secondary Materials
EPA recently proposed to clarify the definition of “solid waste” for certain types of hazardous secondary materials that are currently excluded from regulation subject to certain conditions. In 2008, EPA extended an existing rule conditionally excluding certain hazardous secondary materials from regulation as hazardous waste to include materials that are generated and legitimately reclaimed under the control of the generator and materials generated and transferred to another company for legitimate reclamation. In the wake of controversy concerning the 2008 changes, EPA proposed to revise the rule to, once again, regulate hazardous secondary materials transferred from the generator to other persons for the purpose of reclamation as hazardous waste, subject to certain minor concessions. EPA also proposed additional requirements for wastes reclaimed under the control of the generator. The proposed regulation can be found in the July 22, 2011 Federal Register at: www.gpo.gov/fdsys.
Changes to EPCRA Tier I/Tier II Forms Proposed
EPA proposed to revise its Emergency and Hazardous Chemical Inventory Forms (Tier I and Tier II) issued under Section 312 of the Emergency Planning and Community Right-to-Know Act. EPCRA §312 requires facilities that store chemicals covered by a material safety data sheet above certain threshold quantities to submit annual inventory forms to state and local emergency planning organizations and the local fire department containing information about chemicals stored on-site. With the recent rulemaking, EPA proposed to expand the information on the forms by requiring additional facility and contact information as well as more detailed information about the chemicals stored and whether the facility is subject to other emergency planning requirements. The proposed rule can be found in the August 8, 2011 Federal Register at: www.gpo.gov/fdsys.
Other major environmental legal developments:
Federal
• AIR: EPA proposed to retain the existing secondary (welfare-based) national ambient air quality standards for nitrogen and sulfur oxides pending further study of the feasibility of issuing a joint standard based on the collective impacts of these pollutants on sensitive ecosystems.
• AIR: EPA established a new format for materials previously submitted by New York and approved as revisions to New York’s state implementation plan (SIP) to make federally enforceable state air pollution control requirements easier to identify.
• CLIMATE CHANGE: EPA deferred for three years the application of the Prevention of Significant Deterioration and Title V programs to biogenic carbon dioxide from bioenergy and other biogenic stationary sources to provide it with time to assess whether such sources are “carbon neutral” and so do not merit regulation as a source of greenhouse gas emissions.
• CLIMATE CHANGE: After granting waivers authorizing the use of gasoline containing up to 15% ethanol (E15) in model year 2001 and newer light-duty motor vehicles, EPA recently adopted rules designed to mitigate the potential for misfueling engines with E15 by, among other things, requiring labeling of fuel pumps at gas stations.
New York State
• AIR: DEC and EPA have taken measures to phase out Stage II vapor recovery systems on gasoline pumps in the downstate ozone nonattainment area after finding that onboard refueling vapor recovery is in widespread use in the motor vehicle fleet.
• WATER: DEC issued a Commissioner Policy entitled Best Technology Available (BTA) for Cooling Water Intake Structures that identifies measures required to minimize injury and death to fish and other aquatic organisms from impingement and entrainment associated with large-scale cooling water intakes.
• WATER: DEC made available for comment a draft Total Maximum Daily Load (TMDL) Support Document for PCBs in Lake Ontario outlining a strategy for addressing point and nonpoint sources of PCBs, most of which originate from existing contaminated sediment and atmospheric deposition.