Environmental Regulatory Update – October 2018

Posted on October 10, 2018

Download the full report for October 5, 2018 (pdf)

Recent Developments (Updated October 5, 2018)

EPA Announces Shift in Enforcement Strategy

The U.S. Environmental Protection Agency (EPA) announced a shift in its enforcement strategy from enforcement to compliance, including plans to enhance reliance on compliance assurance tools, focus enforcement away from specific industrial sectors, and direct enforcement authority toward the states. The current National Enforcement Initiatives document—which was issued by the Obama administration EPA and covers fiscal years 2017 to 2019—emphasizes traditional enforcement approaches and focuses on specific industrial sectors/environmental concerns (animal waste, combined sewer overflows, large air emission sources, etc.). With the recent memorandum —entitled Transition from National Enforcement Initiatives to National Compliance Initiatives—EPA announced changes to its enforcement strategy, including: modifying case selection criteria to better align with the agency’s strategic plan; engaging more fully with states and tribes in selecting initiatives; and enhancing the use of the full range of compliance assurance tools. EPA also announced plans to phase out certain existing sector-specific enforcement initiatives and expand the role of states in enforcement. The memorandum can be found on EPA’s website at: www.epa.gov/enforcement/transition-national-enforcement-initiatives-national-compliance-initiatives.

Surface Coating Residual Risk/Periodic Technology Review Findings Proposed

EPA proposed the results of its residual risk/periodic technology review of the National Emission Standards for Hazardous Air Pollutants (NESHAP) for the following surface coating-related source categories: surface coating of large appliances (40 CFR Part 63, subpart NNNN); printing, coating, and dyeing of fabrics and other textiles (subpart OOOO); and surface coating of metal furniture (subpart RRRR). The agency concluded that the risks remaining after application of the three NESHAPs were acceptable and that no changes were necessary to protect public health while at the same time proposing changes to the large appliance and metal furniture standards to address technological improvements. Of perhaps greatest note, EPA is seeking comment on the broader question whether to require implementation of technological improvements where the residual risk analysis shows that the existing standards already provide an ample margin of safety to protect public health and prevent any adverse environmental effects. The proposed rule can be found in the September 12, 2018 Federal Register at: www.gpo.gov/fdsys.

EPA Proposes to Rescind Leak Detection/Repair Requirements for Substitute Refrigerants

EPA proposed to rescind the portion of the 2016 overhaul of its refrigeration and air conditioning rule that extended the leak detection and repair provisions to non-exempt substitute refrigerants. Clean Air Act (CAA) § 608(a), 42 USC § 7671g(a), requires EPA to establish standards and requirements regarding the use and disposal of ozone-depleting substances (ODS) while § 608(c) bans the venting of both ODS and non-exempt ODS substitutes in the course of maintaining, servicing, repairing or disposing of refrigerant-containing appliances. When EPA revised its appliance maintenance requirements in 2016 it extended the leak detection and repair requirements to equipment containing non-exempt substitute refrigerants. With the recent rulemaking, EPA proposed to rescind this change after concluding that its statutory authority with respect to substitutes does not extend as far under CAA § 608(a) as it does under § 608(c), which specifically addresses ODS substitutes. EPA also is taking comment on whether to rescind all changes adopted in 2016 as applied to substitute refrigerants. The proposed rule can be found in the October 1, 2018 Federal Register at: www.gpo.gov/fdsys.

Other Recent Developments


  • AIR: EPA sought comment on a draft memorandum addressing the meaning of the term “adjacent” for purposes of deciding whether two facilities can be considered a single facility under the CAA Title V and new source review programs in the wake of a 2012 court of appeals decision rejecting consideration of functional relatedness in assessing adjacency.
  • SOLID/HAZARDOUS WASTE: EPA issued a memorandum offering guidance to law enforcement on implementing drug takeback programs, identifying options for transporting and destroying pharmaceuticals collected via takeback events and programs and discouraging open burning and burn barrels.

New York State

  • SOLID/HAZARDOUS WASTE: The State recently enacted a law requiring the establishment of a drug takeback program that requires pharmacies with 10 or more outlets to offer on-site collection, mailback collection or other approved programs for taking back “covered drugs” that will be arranged and paid for by drug manufacturers.