Environmental Regulatory News Updates – December 2019

Posted on December 17, 2019

Download the full report for December 9, 2019 (pdf)

Recent Developments (December 9, 2019)

EPA Adds Aerosol Cans to List of Universal Waste

 The U.S. Environmental Protection Agency (EPA) added aerosol cans to the list of universal wastes with the goal of streamlining the management of this commonly generated hazardous waste stream. Certain aerosol cans must be handled as hazardous waste because the propellant is flammable or the contents are hazardous waste when disposed. For the most part, the rules governing the management of aerosol cans are similar to those for other universal waste streams such as hazardous waste, light bulbs and batteries. To address the specific issues relating to disposal of aerosol cans, the rule establishes standards for managing leaking cans, specifies what tasks may be performed by universal waste handlers, including sorting cans by type and removing actuators, and establishes procedures for handlers planning to puncture and drain aerosol cans before recycling/disposal. As with other universal wastes, generators of waste aerosol cans have the option of managing them either as traditional hazardous waste or universal waste. EPA anticipates that adding aerosol cans to the list of universal waste will increase the number of cans diverted from municipal waste landfills and incinerators to recycling facilities. The final rule can be found in the December 9, 2019 Federal Register at: www.govinfo.gov.

DEC Proposes Plastic Carryout Bag Regulations

The New York State Department of Environmental Conservation (DEC) proposed regulations implementing a series of laws regulating plastic carryout bags, including a 2019 law banning retailers from distributing such bags to customers effective March 1, 2020. In 2009, the legislature passed a law requiring certain larger retailers to collect and recycle plastic carryout bags, extending the law in 2015 to cover other types of film plastic packaging such as newspaper and dry cleaning bags. In 2019, the legislature went a step further, banning retailers from distributing plastic carryout bags to their customers, with specific exemptions for meat and deli packaging, plastic bags used to package bulk items, and bags sold in bulk quantities, among many others. Although the earlier bag collection laws were implemented without regulations, DEC has concluded that the 2019 carryout bag ban requires clarification to eliminate loopholes and ensure that the ban is properly implemented. The proposed rule can be found on DEC’s website at: www.dec.ny.gov/regulations/118810.html.

DEC Proposes Updated Order on Consent Policy

DEC is updating its 1990 policy governing the administrative settlement of enforcement actions via orders on consent. Draft Program Policy OGC-11, Order on Consent Enforcement Policy, provides detailed guidance to Department staff on when orders on consent (OC) are required and the content of such orders. Per the policy, OCs should not be used for minor violations that can be corrected within a short period of time. They also should not be used to bypass permitting processes or authorize the commencement or long-term expansion of unpermitted activities. The policy addresses the difference between long and short-form OCs, identifies elements required for all OCs, and discusses requirements that may need to be included in certain OCs. The policy also spells out the procedures for drafting, executing and serving orders.  The proposed OC program policy can be found on DEC’s website at: www.dec.ny.gov/regulations/2381.html.

 Other Recent Developments


  • AIR: EPA issued guidance clarifying that physical proximity alone and not functional relatedness is relevant to determining whether facilities are “adjacent” and must therefore be considered a single facility under the Clean Air Act (CAA) Title V and new source review programs.
  • AIR: EPA issued guidance clarifying the definition of ambient air under Title I of the CAA, a move that could affect compliance demonstrations under the Prevention of Significant Deterioration program by expanding the options for excluding the public from land for purposes of identifying ambient air that must attain the national ambient air quality standards.
  • WATER: EPA proposed changes to its 2015 technology-based guidelines and standards for wastewater discharges from steam electric generating facilities to address recent technical developments relating to flue gas desulfurization wastewater and bottom ash transport water.
  • GENERAL: EPA proposed major changes to the rules governing the appeal of federal permitting decisions to the Environmental Appeals Board (EAB) to streamline and shorten the permit appeal process, including imposing mandatory alternative dispute resolution, clarifying the scope and standard of EAB review, barring amicus curiae briefs, and imposing a 60-day deadline for the EAB to issue a decision, among other changes.

New York State

  • AIR: DEC revised its state-specific ambient air quality standards to eliminate standards that duplicate federal standards and update testing methods. DEC retained limited state-specific standards for total suspended particles less than 10 microns, fluoride compounds during aluminum manufacturing, and hydrogen sulfide (focused on landfills, sewage treatment plants and pulp mills).
  • AIR: DEC revised its regulations establishing reasonably available control technology for major sources of nitrogen oxides to eliminate outdated requirements and make organizational changes.