Posted on November 20, 2019
Download the full report for November 15, 2019 (pdf)
Recent Developments (November 15, 2019)
Obama Era Waters of the United States Rule Rescinded
The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers rescinded their 2015 joint rule redefining the term “waters of the United States” and recodified the pre-existing rule. The agencies revised the definition of waters of the United States in 2015 with the goal of clarifying the scope of federal Clean Water Act jurisdiction in the wake of a series of increasingly complex U.S. Supreme Court decisions on the issue. The controversial rule was challenged by farmers, developers and other industry groups on the grounds that it improperly expanded the agencies’ jurisdiction and was itself unnecessarily complex. With the recent rulemaking, the agencies rescinded the 2015 rule and recodified its predecessor as informed by applicable agency guidance documents and consistent with Supreme Court decisions and long-standing practice. In support of its decision, the agencies concluded, among other things, that the 2015 rule exceeded their authority under the Supreme Court’s “significant nexus” test for identifying waters of the United States. The rule can be found in the October 22, 2019 Federal Register at: www.gpo.gov/fdsys.
EPA Proposes Major Changes to Drinking Water Lead and Copper Rule
In the wake of problems with lead-contaminated drinking water in Flint, Michigan, and elsewhere, EPA has proposed the first major changes to its lead and copper rule (LCR) since 1991, when the rule was adopted. The goal of the changes is to target actions to reduce lead exposure to areas with the greatest problems, improve sampling methods, and increase public outreach. The current LCR establishes a lead action level of 15 parts per billion (ppb) in drinking water, together with requirements to sample lead service lines (LSL) and implement measures to reduce lead levels via corrosion control, LSL replacement and other measures. With the recent rulemaking, EPA is proposing to: require public water systems to conduct a LSL inventory; establish a new “trigger level” for lead of 10 ppb which, if exceeded, would compel further review of corrosion control measures; make major changes to the rules governing LSL replacement, including requiring development of a plan when lead concentrations exceed the 10 ppb trigger level; revise the tap sampling rules to prohibit practices that can mask elevated lead levels; and require systems to notify customers of action level exceedances within 24 hours. The proposed rule can be found in the November 13, 2019 Federal Register at www.govinfo.gov.
DEC Revises Solvent Cleaning Standards
The New York State Department of Environmental Conservation (DEC) expanded and revised its regulations governing solvent metal cleaning to cover solvent cleaning generally and make other changes. The regulation—set forth at 6 NYCRR Part 226—is now divided into two subparts. Subpart 226-1, Solvent Cleaning Processes, largely mirrors the previous regulation and covers certain large cold cleaning degreasers, open-top vapor degreasers and conveyorized degreasers. Among other things, the revised rule applies to cleaning of non-metal as well as metal parts and updates volatile organic compound (VOC) content standards applicable to cold cleaning degreasing. New Subpart 226-2, Industrial Cleaning Solvents, applies to any facility with actual emissions of three tons or more of VOCs from industrial cleaning solvents on a twelve-month rolling total basis, subject to a wide range of exceptions for activities covered by other standards. The regulation imposes work practices on regulated entities and requires compliance with VOC content or emission control standards. The final rule can be found on DEC’s website at: www.dec.ny.gov/regulations/116332.html.
DEC Seeks Comment on Possible Hazardous Waste Rule Updates
DEC is seeking input on possible revisions to the State hazardous waste regulations to incorporate major changes to the federal rules adopted since 2013. Although DEC must adopt all or part of several of these rules to maintain delegation of the federal program, others are optional. This initiative includes the following EPA rules: solvent contaminated wipes rule (2013); carbon dioxide sequestration rule (2014); hazardous waste electronic manifest (e-manifest) rules (2014; 2018); definition of solid waste rule promoting recycling of hazardous secondary materials and prohibiting sham recycling (as amended January 2015); hazardous waste generator improvements rule (2016); and hazardous waste pharmaceuticals rule (2019). DEC is also taking comment on several other recent EPA hazardous waste rulemakings relating to imports/exports, aerosol cans, recalled airbags, and ignitable waste determinations. Information about the initiative can be found at: www.dec.ny.gov/regulations/117115.html.
Other Recent Developments
- AIR: EPA proposed the results of its residual risk/periodic technology review of the following National Emission Standards for Hazardous Air Pollutants: organic liquids distribution (non-gasoline); rubber tire manufacturing; surface coating of automobiles and light-duty trucks; surface coating of miscellaneous metal parts and products; and surface coating of plastic parts and products. With the exception of the organic liquids distribution (non-gasoline) standard, EPA found that the existing standards protect public health with an ample margin of safety. EPA also found that no changes to the standards were needed to address technological improvements.
- ENFORCEMENT: The U.S. Department of Justice issued a memorandum strictly limiting the use of supplemental environmental projects in settlements with state and local governments.
New York State
- CLIMATE CHANGE: EPA held meetings and is seeking comment on the proposed framework for the multistate Transportation and Climate Initiative, which calls for establishing a carbon dioxide cap-and-trade program that would cover transportation fuel distributors in participating states in the Northeast and Mid-Atlantic.
- HAZARDOUS WASTE: DEC issued a pair of enforcement discretion letters announcing its intent to implement federal hazardous waste requirements pending revisions to the state regulations. The first letter authorizes implementing the federal rules for managing defective airbags subject to certain additional state requirements. The second letter defers to an EPA final rule excluding over-the-counter nicotine replacement therapies from the definition of P075 hazardous waste.
- ENFORCEMENT: DEC proposed to replace its existing procedures for conducting enforcement hearings to reflect current practice, incorporate procedural and legal developments, ensure consistency with the Civil Practice Law and Rules, where appropriate, and make other changes and updates.
- ENDANGERED/THREATENED SPECIES: DEC is seeking comments on possible additions and deletions to the State’s list of endangered and threatened species, including the possible removal of the bald eagle from the list.