Download the full report for January 2012 (pdf)

 

Recent Developments (Updated January 6, 2012)

EPA Proposes Changes to Combustion Standards

The U.S. Environmental Protection Agency (EPA) proposed changes to rules adopted in March 2011 that established emission standards for commercial and industrial solid waste incinerators (CISWI) and commercial, industrial and institutional boilers and process heaters. Three of the rules were developed in response to a court decision vacating the CISWI and major source boiler and process heater standards on the ground that EPA improperly included certain solid waste incineration units under the boiler and process heater standard. With the recent rulemakings, EPA proposed the following changes:

• CISWIs. Revised emission limits for waste-burning kilns and solid fuel-burning energy recovery units; revised monitoring requirements; clarified what types of units are regulated as CISWIs.

• Major source industrial, commercial and institutional boilers and process heaters. Created separate subcategories for units burning light and heavy liquids; set separate particulate matter limits for each solid fuel-fired boiler subcategory; replaced numeric emission limits for dioxins with work practice standards; decreased tune-up requirements for certain small boilers.

• Area source industrial, commercial and institutional boilers. Created new subcategory for “seasonally operated boilers;” extended deadline for existing boilers to complete initial tune-ups; extended time between boiler tune-ups for small oil-fired boilers.

The proposed rules can be found in the December 23, 2011 Federal Register at: www.gpo.gov/fdsys.

DEC Proposes Major Revisions to State Agency Equipment Rules

The New York State Department of Environmental Conservation (DEC) proposed major revisions to the rules implementing the Diesel Emissions Reduction Act (DERA) of 2006, which requires heavy-duty vehicles (HDVs) that are owned by, operated by or on behalf of, or leased by any state agency to satisfy certain requirements designed to reduce emissions. Consistent with the statute, the implementing regulations require HDVs to be equipped with best available retrofit technology (BART) that achieves specified reductions in particulate matter emissions. In response to a court decision, DEC recently proposed to revise the definition of contractor in 6 NYCRR Part 248 to exclude subcontractors. Other proposed changes include: (1) excluding most companies delivering materials to the work site from regulation; (2) establishing a single compliance deadline of December 31, 2012 for using and maintaining BART; and (3) adding a new “useful life” waiver provision. The proposed changes can be found on DEC’s website at: www.dec.ny.gov/regulations/propregulations.html.

Court of Appeals Upholds State Superfund Remedial Standard

New York’s highest court recently issued a decision upholding key provisions of the State’s remedial program regulations against a challenge that DEC had exceeded its statutory authority by requiring the restoration of inactive hazardous waste disposal sites to “pre-disposal conditions.” In In re New York State Superfund Coalition v. DEC, the New York Court of Appeals concluded that while the statute required cleanups to address a “significant threat,” this provision merely established the standard for initiating cleanup and did not limit the scope of the subsequent remedial program. The court went on to find that language in the regulation requiring cleanup to “pre-disposal conditions, to the extent feasible” prevented DEC from unilaterally fashioning a remedy that ignores practical considerations such as cost and technical feasibility. The court’s decision can be found at: www.courts.state.ny.us/CTAPPS/Decisions/2011/Dec11/189opn11.pdf.

Other Regulatory Developments

Federal

• AIR: Pending resolution of petitions challenging the rule, a federal appeals court stayed implementation of EPA’s Cross-State Air Pollution Rule establishing a multi-state cap-and-trade program for nitrogen oxide and sulfur dioxide emissions to replace the Clean Air Interstate Rule.

• AIR: EPA announced the results of its residual risk and periodic technology reviews of the primary aluminum reduction plant and pulp and paper industry National Emission Standards for Hazardous Air Pollutants (NESHAP).

• AIR: EPA adopted a direct final rule establishing a less stringent design efficiency standard under the NESHAP for cyclones located at certain prepared feed manufacturing operations.

• WATER: EPA solicited information to aid in developing numeric effluent limitations for construction-related turbidity following the agency’s decision to stay a 280 nephelometric turbidity unit standard adopted in 2009 for construction sites disturbing more than 10 acres.

• WATER: EPA sought comment on a revised draft general permit authorizing discharges from non-military and non-recreational vessels 79 or more feet in length.

New York State

• GENERAL: DEC issued its regulatory agenda for 2012 identifying the regulatory changes the Department may pursue in the upcoming year.

• AIR: DEC proposed to revise its existing incinerator regulations to implement EPA’s emission standards for sewage sludge incinerators.

• SOLID WASTE: New York’s ban on businesses disposing of electronic waste in landfills took effect January 1, 2012; the statewide ban on disposal of rechargeable batteries as solid waste took effect December 5, 2011.