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Environmental Regulatory Update – November 2017

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

Recent Developments (Updated November 3, 2017)

EPA Proposes to Repeal Clean Power Plan

In fulfillment of a campaign promise by President Trump, the U.S. Environmental Protection Agency (EPA) proposed to repeal the Clean Power Plan (CPP), President Obama’s signature climate change initiative, after concluding that it lacked the authority for the program under the Clean Air Act (CAA), in particular, 42 USC § 7411. The CPP relies on states to implement one or more of three “building blocks” to achieve reductions in greenhouse gases from existing power plants: (1) reducing the carbon intensity of generation at individual units through heat rate improvements; (2) substituting less carbon-intensive generating units (e.g., replacing coal with natural gas); and (3) increasing reliance on low or zero-carbon generation sources (such as solar and wind). In the recent repeal proposal, EPA declared that the definition of best system of emission reduction in 42 USC § 7411 on which the CPP relies is limited to emission reduction measures that can be applied to or at the individual stationary source covered by the standard. Because the CPP calls for emission reductions from sources other than existing power plants covered by the emission guidelines, the Trump administration EPA concluded that the law violates the CAA. The proposal to repeal the CPP can be found in the October 16, 2017 Federal Register at: www.gpo.gov/fdsys.

EPA Issues Directive Ending “Sue and Settle” Practice

EPA Administrator Scott Pruitt issued a Directive Promoting Transparency and Public Participation in Consent Decrees and Settlement Agreements, designed to end “sue and settle” practices in the agency—EPA’s purported practice of entering into collaborative consent decrees or settlement agreements resolving lawsuits over EPA’s failure to fulfill its obligations under federal environmental statutes. The Trump administration EPA contends that many of the decrees and settlements appear to have been the result of collusion with outside groups and that they have led to the creation of regulations outside the normal administrative process. In response, Administrator Pruitt issued the recent directive, which outlines measures to promote transparency and public participation in the consent decree and administrative settlement process. These measures include: making key documents, including notices of intent to sue, complaints, and the agreements themselves, accessible to the public and providing opportunities for comment; barring EPA from entering into a consent decree with terms that the court would otherwise have lacked the authority to order if the parties had not resolved the litigation; and seeking to exclude the payment of attorney’s fees for litigation that is settled via consent decree or settlement agreement on the theory that there is no “prevailing party.” The full directive and an accompanying memorandum can be found on EPA’s website at:  www.epa.gov/newsroom/directive-promoting-transparency-and-public-participation-consent-decrees-and-settlement.

DEC Revises BCP Application Guidance

The New York State Department of Environmental Conservation (DEC) has revised DER-32, Brownfield Cleanup Program Applications and Agreements, which summarizes the procedure for applying for, and obtaining approval of, a Brownfield Cleanup Agreement (BCA) under DEC’s Brownfield Cleanup Program (BCP). DEC revised DER-32 to implement recent changes to the BCP statute and make other updates/improvements. The guidance outlines the key steps in the application process, including: application submission; determination of a complete application; procedures for submitting reports and draft work plans simultaneously with the application; application approval and disapproval; information about the BCA itself; and procedures for amending and terminating the BCA. The revised guidance implements numerous changes including: requiring preapplication data to show that the site qualifies for the BCP; simplifying the provisions relating to existing and future land use; revising the criteria for denying a BCP application; dropping the model BCA from the guidance; and clarifying the rules governing amendment of BCP applications. Program Policy DER-32 can be found on DEC’s website at:    www.dec.ny.gov/regulations/2393.html.  

Other Recent Developments

Federal                                                                

  • TRANSITION: EPA issued a report on implementing President Trump’s Executive Order 13783 to curb regulatory burdens in order to promote energy production and economic development that identifies four initiatives to reduce regulatory burdens on domestic energy production: new source review reform; changes to the process for reviewing and implementing national ambient air quality standards; requiring completion of mandatory evaluations of the impact of regulatory changes on employment; and implementing the Smart Sectors program to improve EPA’s sector-specific expertise and outreach.
  • AIR: EPA issued the results of its residual risk/periodic technology review of three source categories regulated under the National Emission Standards for Hazardous Air Pollutants (NESHAP) program: nutritional yeast manufacturing (40 CFR Part 63, subpart CCCC), publicly owned treatment works (40 CFR Part 63, subpart VVV), and chemical recovery combustion sources at kraft, soda, sulfite and stand-alone semichemical pulp mills (40 CFR Part 63, subpart MM).
  • CHEMICAL: EPA proposed reporting requirements to assist the agency in developing an inventory of mercury supply, use and trade under the Toxic Substances Control Act.
  • RELEASE REPORTING: EPA proposed interim guidance to help farmers comply with requirements to report releases of ammonia and hydrogen sulfide from large-scale animal farming operations under the Comprehensive Environmental Response, Compensation and Liability Act and Emergency Planning and Community Right-to-Know Act.

New York State:

  • AIR: DEC allowed an August 2016 proposal to replace its existing rules governing the burning of wastes fuel for energy recovery to expire without taking action. The rule proposed to revise 6 NYCRR Subpart 225-2 to revise key definitions, lower certain constituent limits, expand eligibility for burning waste oil by lowering the minimum permissible heat input limit for regulated boilers, and broaden the permitting exemption for automotive maintenance/service facilities.
  • WATER: The New York State Department of Health adopted its fourth emergency rule requiring lead testing of school drinking water to extend the program while it finalizes a permanent rule.