Environmental Regulatory Update – January 2018

Posted on January 12, 2018

Download the full report for January 8, 2018 (pdf)

Recent Developments (Updated January 8, 2018)

Hazardous Waste Manifest Fees Adopted

As part of its ongoing efforts to implement the Hazardous Waste Electronic Manifest Establishment Act, the U.S. Environmental Protection Agency (EPA) adopted regulations establishing a framework for imposing fees on manifest users to recoup the costs of the e-manifest system currently being developed by EPA. Under the rule, user fees will be charged for all manifests, including those used to ship state-only regulated wastes. To simplify program administration, the fees will be imposed on receiving facilities rather than waste generators. EPA will bill receiving facilities on a monthly basis for each hazardous waste manifest they receive. The fees will be higher for paper than electronic manifests and the premium may increase in four years if e-manifest usage has not reached 75%. The rule, which also addresses the process for adjusting fees and other issues, is scheduled to take effect June 30, 2018 when EPA plans to launch the e-manifest system nationwide. It can be found in the January 3, 2018 Federal Register at www.gpo.gov/fdsys.

RGGI States Revise Model Rule

The states participating in the Regional Greenhouse Gas Initiative (RGGI) revised the model rule developed to implement the multi-state RGGI carbon dioxide (CO2) cap-and-trade program for fossil fuel-fired power plants in the Northeast. Major changes include: (1) significantly lowering the regional CO2 budget to achieve a 30% reduction in CO2 emissions from power plants between 2020 to 2030; (2) revising the cost containment reserve to ensure that additional allowances are available for sale only if emission reduction costs are significantly higher than projected; (3) establishing an emission containment reserve—a quantity of allowances that will be withheld from circulation to secure additional emission reductions if allowance prices fall below established trigger prices; and (4) eliminating two categories of projects for generating CO2 offsets from the list of authorized activities. RGGI states must revise their implementing statutes/regulations to incorporate the changes to the model rule. The revisions must take effect by January 1, 2021. Information about the RGGI can be found at: www.rggi.org.

EPA Seeks Comment on Possible Clean Power Plan Replacement

EPA published an advance notice of proposed rulemaking (ANPR) seeking input on establishment of emission guidelines to replace the Clean Power Plan (CPP), President Obama’s signature climate change initiative for existing fossil fuel-fired power plants. The CPP required states to develop programs to reduce greenhouse gas (GHG) emissions from the energy sector that could potentially include measures, such as increasing renewable energy production, that do not directly involve the fossil fuel-fired power plants regulated under the applicable New Source Performance Standard (NSPS). In October 2017, EPA proposed to repeal the CPP after concluding that it lacked the authority for the program under the Clean Air Act (CAA) because it extended to non-NSPS sources. The recent ANPR seeks comment from the public on issues relating to development of new emission guidelines to replace the CPP. Consistent with its earlier findings, the ANPR emphasizes implementation of combustion efficiency and other technologies that can be readily implemented by existing power plants rather than broader efforts covering the energy industry generally. The ANPR can be found in the December 28, 2017 Federal Register at: www.gpo.gov/fdsys.

Other Recent Developments


  • AIR: EPA denied a petition seeking to compel it to establish NSPS and emission guidelines for new, modified, reconstructed and existing concentrated animal feeding operations (CAFOs), after concluding, among other things, that the proposal was inconsistent with EPA’s comprehensive strategy for regulating emissions from CAFOs.
  • AIR: EPA adopted a final rule clarifying that small cans of non-exempt substitute refrigerants without self-sealing valves manufactured before January 1, 2018 can be sold for use in motor vehicle air conditioners. EPA adopted the rule after finding that it unintentionally failed to include a grandfathering provision in 2016 when it extended the requirements for air conditioning/refrigeration repair to substitute refrigerants.
  • AIR: EPA requested comment on its planned designations for the 2015 ozone national ambient air quality standards (NAAQS), addressing the counties not designated attainment in a November 2017 rulemaking. In New York State, EPA has proposed to designate the New York City metropolitan area as nonattainment for ozone.
  • CLIMATE CHANGE: EPA adopted renewable fuel standards (RFS) for gasoline and diesel transportation fuel produced or imported for 2018 at levels below those mandated by the CAA after finding that constraints in the fuel market—including the low levels of cellulosic biofuel production—make it impossible to accommodate the increasing quantities of renewable fuel mandated by the RFS statute.
  • WATER: EPA issued a rule requiring municipalities to implement measures designed to inform the public about combined sewer overflows (CSOs) in the Great Lakes Basin, including posting signs, notifying government authorities and the public about CSO discharges, and preparing a public notification plan.

New York State

  • SOLID WASTE: The New York State Department of Environmental Conservation (DEC) issued its second report to the Governor and Legislature summarizing the results of New York’s 2010 Electronic Equipment Recycling and Reuse Act, which requires electronic equipment manufacturers to establish programs for collecting, handling, and recycling or reusing so-called “e-waste.”
  • WATER: The New York State Department of Health adopted its fifth emergency rule requiring lead testing of school drinking water to extend the program while it finalizes a permanent rule.