Recent Developments (Updated June 8, 2011)

EPA Stays Incinerator and Major Source Boiler Standards

The U.S. Environmental Protection Agency (EPA) stayed the effective date of the National Emission Standards for Hazardous Air Pollutants (NESHAP) for industrial, commercial and institutional boilers and process heaters at major sources and the final standards for commercial and industrial solid waste incineration (CISWI) units after finding that “justice requires postponing the effectiveness of these rules.” EPA adopted the controversial rules limiting hazardous air pollutant emissions from major source boilers and CISWIs earlier this year after making extensive changes in response to public comment. In the wake of numerous administrative and judicial challenges to the rules, EPA postponed their effective date on the ground that the public did not have sufficient time to comment on certain revisions made to the proposed rules. The stay will continue until judicial review of the rules is no longer pending or EPA completes its reconsideration of the rules, whichever is earlier. The announcement can be found in the May 18, 2011 Federal Register at: www.gpo.gov/fdsys. The stay does not affect EPA’s area source standards for boilers, which were adopted at the same time.

EPA Issues Confidentiality Determinations under GHG Reporting Rule

EPA finalized its confidentiality determinations for certain data elements required to be reported under the mandatory greenhouse gas (GHG) reporting rule (40 CFR Part 98), which requires facilities/operations in certain source categories to provide information on GHGs emitted or supplied. The rule distinguishes among emission data (which is never entitled to confidential treatment), data that are not emission data and are not confidential business information (CBI), and data that are not emission data but are CBI. With respect to certain categories of data, EPA made CBI determinations for individual data elements after finding that certain data elements in the category are CBI and certain data elements are not. The final rule does not cover data elements addressed in a series of rulemakings in December 2010 that deferred the requirement to submit information on inputs to emission equations pending further study. The confidentiality determinations can be found in the May 26, 2011 Federal Register at: www.gpo.gov/fdsys.

Other major environmental legal developments:

Federal

• EPA repealed the grandfathering provisions for fine particulate matter under the Prevention of Significant Deterioration program after concluding that permitting authorities now have the information and tools necessary to conduct meaningful permit-related PM_2.5 analyses and no longer need to use PM₁₀ as a surrogate.
• EPA granted requests to reconsider aspects of the recently adopted cement manufacturing NESHAP and New Source Performance Standards, while rejecting other reconsideration requests as well as industry’s request to stay the effective date of the final rules.
• EPA proposed a new NESHAP for polyvinyl chloride and copolymer production facilities as well as major revisions to the NESHAP for secondary lead smelting. The proposed revisions to the secondary lead smelting standard follow a residual risk/periodic technology review.
• The Occupational Safety and Health Administration (OSHA) is accepting additional comment on its proposal to restore to the OSHA 300 Log a column for reporting musculoskeletal disorders. The additional review is targeted at assessing the potential impact of the new requirement on small businesses.

New York State

• The New York State Department of Environmental Conservation (DEC) has submitted a clean data petition to EPA indicating that the downstate area has attained the 2006 national ambient air quality standards for PM_2.5. If approved, the petition will relieve New York of the obligation to submit PM_2.5-related state implementation plan revisions to EPA.
• DEC is seeking data to assist it in developing a list of impaired surface waters as required by Section 303(d) of the Clean Water Act. DEC uses the 303(d) list to prioritize waters for total maximum daily load development.

For information about these and other recent developments, download the PDF for June 2011.

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