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Environmental Regulatory Update – February 2017

Download the full report for February 3, 2017 (pdf)

Recent Developments (Updated February 3, 2017)

Presidential Transition Affects EPA Rulemaking Activities

In the waning months of the Obama Administration, the U.S. Environmental Protection Agency (EPA) issued numerous proposed and final regulations and other documents/determinations, presumably with the goal of cementing its legacy before the change in administrations. Upon its arrival, the Trump Administration put a temporary freeze on further regulatory proposals while extending for 60 days the effective date of final regulations that not taken effect as of January 20, 2017 to provide time for further review. The Trump Administration also issued an executive order requiring agencies going forward to eliminate two regulations for every new rule enacted. At the same time, Congress is reviewing regulations enacted since late spring 2016 to determine whether they should be repealed under the Congressional Review Act (CRA), which gives Congress the authority to void agency rules within 60 session days of adoption by enacting resolutions of disapproval. Finally, in the early months of the 115th Congress, the House of Representatives passed several bills designed to limit agency rulemaking powers, including the controversial Regulations from the Executive in Need of Scrutiny (REINS) Act of 2017 (H.R. 26), which would require Congress to specifically approval all “major” agency rules before they can take effect.

EPA Proposes Key TSCA Implementation Rules

EPA proposed several important rules required to implement Congress’ 2016 law reforming the Toxic Substances Control Act (TSCA). The Frank R. Lautenberg Chemical Safety for the 21st Century Act calls for significant changes to TSCA, the decades-old program requiring EPA to evaluate and respond to the risks posed by toxic chemicals. Among other things, the new law: establishes a risk-based process for prioritizing chemicals for risk assessment and sets goals and schedules for completing reviews; establishes a schedule for taking action when EPA identifies unreasonable risks relating to a specific chemical; and requires EPA to make a safety finding before allowing new chemicals/significant new uses into the marketplace. In fulfillment of a statutory mandate, EPA proposed rules implementing three key steps in the chemical review process. The first proposal establishes procedures for reaching out to industry to identify chemicals that are no longer being manufactured and so do not require further review. The second proposal establishes the procedures for identifying high priority chemicals that require evaluation. The third proposal establishes the procedures for conducting a risk evaluation for purposes of deciding whether a particular chemical requires regulation under TSCA. In a related development, EPA proposed regulations prohibiting the manufacture, processing, distribution in commerce and use of trichloroethylene in vapor degreasing and methylene chloride and N-methylpyrrolidone in paint removal after finding that these activities present an unreasonable risk to human health. Information about the TSCA reform statute can be found at: www.epa.gov/laws-regulations/summary-toxic-substances-control-act.

Major Changes to RMP Rules Adopted

EPA revised the risk management plan (RMP) regulations contained in 40 CFR Part 68 as part of an Obama administration initiative to review key emergency preparation and response programs in the wake of several high-profile industrial accidents. The RMP program requires facilities storing listed hazardous substances above threshold quantities to conduct a hazard assessment and prepare a RMP. The rule distinguishes between three levels of programs with Program 2 and 3 processes subject to more rigorous planning requirements because they pose the greatest risk. Key changes in the revised rule include: requiring facilities with Program 2 or 3 processes to conduct a root cause analysis after any incident that resulted or could have resulted in a catastrophic release and conduct or oversee an independent third-party audit following a reportable incident. In addition, certain industries will be required to evaluate safer production alternatives. EPA also is requiring facilities with Program 2 and 3 processes to coordinate with local emergency agencies at least once a year and conduct periodic field and tabletop exercises. Finally, the rule calls for providing additional RMP information to the public. The rule can be found in the January 13, 2017 Federal Register at: www.gpo.gov/fdsys.

DEC Issues Revised CAFO General Permits

The New York State Department of Environmental Conservation (DEC) issued revised general permits under the State Pollutant Discharge Elimination System (SPDES) program to address wastewater associated with concentrated animal feeding operations (CAFOs). Both permits replace the existing CAFO general permit, which expired on June 30, 2016 but was administratively extended. The first permit covers CAFOs that do not discharge from their production areas to surface waters while the second covers discharging CAFOs that are regulated under the Clean Water Act. Both permits require preparation and implementation of nutrient management plans as well as ongoing monitoring, reporting and recordkeeping. Major changes to the CAFO permitting process include: requiring public notice and comment on the NOI and farm-specific annual nutrient management plan for federally-regulated CAFOs; requiring advance notice to DEC whenever significant operational changes are made at the facility; and adding conditions regulating manure spreading during winter months, among other changes The CAFO general permits and related materials can be found on DEC’s website at: www.dec.ny.gov/permits/6285.html.

EPA Proposes CERCLA Financial Responsibility Rule

EPA proposed a new regulation establishing financial responsibility requirements under Section 108(b) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) with the goal of ensuring that the response costs, health assessment costs and natural resource damages associated with hazardous substance releases are borne by the responsible party. The law requires EPA to prioritize industries for regulation, develop standards for calculating the appropriate level of financial responsibility, and identify financial responsibility mechanisms. The current proposal contains the basic financial responsibility requirements as well as establishing specific rules for the hardrock mining industry. The same day, EPA announced its intent to publish a notice of proposed rulemaking on financial assurance requirements for chemical manufacturing, petroleum and coal products manufacturing, and electrical power generation, transmission and distribution. The proposed rule and notice of intent can be found in the January 11, 2017 Federal Register at: www.gpo.gov/fdsys.

Other Recent Developments

Federal                                                                

  • AIR: EPA streamlined, strengthened and clarified key aspects of the regional haze rule, which requires states to implement planning and other measures to reduce emissions of pollutants that impair visibility and track progress toward achieving natural background conditions.
  • AIR: EPA proposed to deny a petition from the states in the Northeast Ozone Transport Region (OTR) to include nine upwind states in the region after finding that other CAA provisions provide a better alternative for addressing interstate ozone transport.
  • REMEDIATION: EPA added a subsurface intrusion (SsI) component to the Hazard Ranking System, a change which will allow EPA to consider SsI when ranking sites for inclusion on the Superfund National Priority List.
  • CHEMICAL: EPA is requiring manufacturers/processors of nanoscale material to report certain information under TSCA to enable EPA to collect the data necessary to determine whether additional action is necessary to prevent health or environmental impacts from nanoscale materials.
  • WATER: The U.S. Army Corps of Engineers (ACOE) reissued nationwide permits (NWPs) used by the ACOE to approve certain common activities that disturb wetlands or waterways, adopting new NWPs for low-head dams and construction and maintenance of living shorelines and revising existing NWPs and general permit conditions.
  • WATER: EPA proposed public notification requirements for combined sewer overflows (CSOs) to the Great Lakes Basin to apprise local health officials and the public of possible sewage discharges following CSOs.
  • WATER: EPA requested comment on the results of its periodic review of existing National Primary Drinking Water Regulations, identifying eight drinking water standards as candidates for possible revision.
  • WATER: EPA proposed regulations lowering the acceptable content of lead in plumbing fixtures and making other changes to implement the Reduction of Lead in Drinking Water Act of 2011.
  • OCCUPATIONAL SAFETY AND HEALTH: The Occupational Safety and Health Administration significantly reduced the permissible exposure limit for beryllium, while adopting work practice, equipment and other changes.

New York State

  • AIR: DEC made available for comment draft guidance on issuing variances under the recently adopted distributed generation (DG) rule, which sets nitrogen oxide emission limits and other requirements for economic dispatch DG sources.
  • BULK STORAGE/REMEDIATION: DEC adopted a fifth emergency rule adding perfluoroctanoic acid (PFOA) and related compounds to the list of hazardous substances under 6 NYCRR Part 597, allowing the State to address sites contaminated with these chemicals under the State Superfund program.
  • GENERAL: DEC issued its Regulatory Agenda for 2017, identifying the regulatory changes DEC may pursue in the upcoming year.