Environmental Regulatory Update – September 2017

Posted on October 12, 2017

Download the full report for September 8, 2017 (pdf)

Recent Developments (Updated September 8, 2017)

EPA Adopts Key TSCA Implementation Rules

EPA adopted 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 the statutory mandate, EPA recently adopted rules implementing three key steps in the existing chemical review process. The first rule 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 rule establishes the procedures for identifying high priority chemicals that require evaluation. The third rule establishes the procedures for conducting a risk evaluation for purposes of deciding whether a particular chemical requires regulation under TSCA. Information about the TSCA reform statute can be found at: www.epa.gov/laws-regulations/summary-toxic-substances-control-act.

Superfund Task Force Recommendations Issued

A task force of EPA staff convened by the EPA Administrator provided recommendations on ways to restructure the Superfund cleanup process to expedite remediation, reduce the burden on cooperating parties, incentivize remediation, encourage private investment in cleanups, and promote redevelopment. The EPA Superfund Task Force Report identified five overarching goals, followed by strategies, recommendations and specific actions for achieving each goal. Many of the 42 recommendations are intended to be implemented immediately. These include prioritizing and taking actions at sites where the risk of human exposure is not fully controlled; utilizing early or interim response actions more frequently to address immediate risk; prioritizing development of remedial investigation/feasibility studies for sites that require immediate action; compiling existing information on the reuse potential of National Priority List  (NPL) sites; tracking real time remedy implementation and completion; and focusing resources on current NPL sites with the most reuse potential. The focus of the recommendations generally is on setting aggressive deadlines for site cleanups and identifying sites where land can be re-used to promote third party investment. EPA also is recommending use of the superfund alternative approach, which involves the same site investigation/remediation process but avoids adding the site to the NPL, thus avoiding the stigma of listing. The report can be found on EPA’s website at: www.epa.gov/superfund/superfund-task-force-recommendations.

EPA Proposes to Rescind Waters of the United States Rule

EPA and the U.S. Army Corps of Engineers (ACOE) proposed to rescind the 2015 joint rule redefining the term “waters of the United States” and thus the scope of protection afforded under the Clean Water Act (CWA). Over the years, many questions have arisen about the definition of this key term, prompting the Obama administration to adopt a controversial rule in 2015 defining the term to include specific categories of jurisdictional waters and allowing other waters to be included on a case-by-case basis. A federal court stayed the rule and President Trump issued an executive order directing EPA and the ACOE to reconsider it. With the recent rulemaking, EPA proposed to formally rescind the 2015 rule and restore the pre-revision version as informed by agency guidance and Supreme Court decisions. In a second step, the agencies plan to reevaluate the definition and potentially propose changes. The proposed rule can be found in the July 27, 2017 Federal Register at: www.gpo.gov/fdsys.

Other Recent Developments


  • AIR: EPA is proposing to retain the existing national ambient air quality standards (NAAQS) for nitrogen dioxide (NO2) without revisions after finding that the current standards provide the requisite protection to public health with an adequate margin of safety.
  • AIR: EPA announced that it was withdrawing its earlier proposal to extend the deadline for states to designate nonattainment areas under the 2015 ozone NAAQS one year after finding that the “gaps” in information that prompted the extension were not as significant as originally thought.
  • AIR: EPA is proposing changes to the National Emission Standards for Hazardous Air Pollutants (NESHAP) for manufacturing of amino/phenolic resins and wool fiberglass manufacturing to address issues remaining after completion of the residual risk/periodic technology review.
  • CLIMATE CHANGE: EPA is accepting comment on whether to reconsider its earlier finding that the greenhouse gas emission standards for model year 2022-2025 light-duty vehicles are still appropriate and achievable.
  • CLIMATE CHANGE: EPA proposed renewable fuel standards for gasoline and diesel transportation fuel produced or imported for 2018 at levels below those mandated by the Clean Air Act due largely to lower than expected levels of cellulosic biofuel production.
  • WATER: EPA issued a rule modifying and updating its testing procedures approved for analysis and sampling under the CWA to add newly approved methods, approve new versions of previously approved methods and update the list of consensus standards incorporated by reference, among other changes.

New York State

  • SOLID WASTE: DEC accepted a Final Supplemental Generic Environmental Impact Statement for the revisions to the solid waste regulations that includes a brief description of each proposed change; a discussion of the history and purpose of the change; a review of the alternatives considered; and a summary of the environmental impact of the proposed change.