Environmental Regulatory Update – February 2019

Posted on February 20, 2019

Download the full report for February 14, 2019 (pdf)

Recent Developments (February 14, 2019)

DEC Exercises Enforcement Discretion on C&D Debris Management and Other Waste Streams

The New York State Department of Environmental Conservation (DEC) issued a new letter announcing its exercise of enforcement discretion in relation to aspects of its 2017 revisions to the State’s solid waste regulations, set forth at 6 NYCRR Part 360 et seq. Of particular note, the recent enforcement discretion letter, which replaces an earlier letter issued in March 2018, provides that recognizable, uncontaminated concrete and other masonry products, brick, rock, aggregate and asphalt materials identified in the regulations that meet regulatory criteria and are under the control of the generator and destined for and/or managed at facilities subject to the requirements of 6 NYCRR subpart 361-5 (C&D handling and recovery facilities) are considered commercial product or raw material and are not subject to Part 360 or Part 361. The letter also excludes other C&D debris management activities from regulation provided certain conditions are met. These changes were made in settlement of a lawsuit filed by members of construction industry and are a prelude to planned changes to the regulations. The letter also announces DEC’s intent to authorize the use of waste tires to secure tarpaulins at farms and simplify the rules governing the management of regulated medical waste and sharps in patient care areas and laboratories. A link to the enforcement discretion letter can be found on DEC’s website at: www.dec.ny.gov/regulations/81768.html.

EPA Proposes to Reverse Finding Underlying Regulation of Power Plant HAPs

The U.S. Environmental Protection Agency (EPA) proposed to reverse its 2016 supplemental finding that it is appropriate and necessary (A&N) to regulate coal and oil-fired power plants under the National Emission Standards for Hazardous Air Pollutants (NESHAP) program while retaining the standard itself. EPA concluded in 2011 that it was “appropriate and necessary” to regulate these emissions under the NESHAP program and followed up with the Mercury and Air Toxics Standards (MATS) for power plants. After the Supreme Court concluded that EPA improperly failed to take cost into account when it made its A&N finding, EPA revisited the issue in 2016 and concluded again that regulation of HAP emissions from power plants is A&N. In the recent notice, the Trump administration EPA reversed this conclusion after finding that the agency improperly considered the co-benefits of reducing certain pollutants in preparing its cost-benefit analysis. However, EPA declined to remove power plants from the list of source categories regulated under the NESHAP program after finding that it could not satisfy the criteria for delisting. As a result, the MATS rule will continue to apply. Notice of EPA’s MATS supplemental cost finding can be found in the February 7, 2019 Federal Register at: www.govinfo.gov.

EPA and Army Corps Propose New Definition of “Waters of the United States”

EPA and the U.S. Army Corps of Engineers (ACOE) proposed a new definition of “waters of the United States” (WOTUS)a term that establishes the scope of waters regulated under the Clean Water Act (CWA). In response to continuing questions about the scope of WOTUS, EPA issued 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. Faced with numerous court challenges and a change in administration, EPA and the ACOE have proposed a new definition that specifies what waters are (and are not) considered WOTUS. Water bodies considered WOTUS include traditional navigable waters, tributaries to those waters (including certain non-traditional surface waters that convey perennial or intermittent flow downstream), certain ditches, lakes and ponds, impoundments of jurisdictional waters, and wetlands adjacent to (i.e., physically touching) jurisdictional waters. Notice of EPA’s proposed rule defining WOTUS can be found in the February 14, 2019 Federal Register at: www.govinfo.gov.

Other Recent Developments


  • AIR: EPA completed its residual risk/periodic technology review of the NESHAP for friction materials manufacturing facilities and leather finishing operations, concluding that the risks remaining after application of the existing technology-based standards were acceptable and that no changes were necessary to address technological improvements.
  • WATER: EPA updated its National Pollutant Discharge Elimination System (NPDES) implementing regulations to eliminate regulatory and application inconsistencies, improve permit documentation, transparency and oversight, clarify existing regulations and remove outdated material.
  • WATER: EPA issued a new water trading policy memo outlining the general process for facilities with water quality-based effluent limits in their NPDES permits to meet their compliance obligations by reaching out to other sources, including nonpoint sources, to implement measures to reduce the discharge of pollutants.
  • OCCUPATIONAL SAFETY AND HEALTH: The Occupational Safety and Health Administration rescinded a requirement that employers with 250 or more employees electronically submit OSHA Forms 300 and 301 to the agency while continuing to require electronic submission of information from the 300A summary form.
  • ENFORCEMENT/COMPLIANCE: EPA is accepting comment on its national compliance initiatives for fiscal years 2020-2023, identifying the issues on which it plans to focus its enforcement/compliance resources during the next four years.

 New York State

  • CLIMATE CHANGE: DEC has adopted an emergency rulemaking and is taking comment on the companion proposed rule adopting California’s low emission motor vehicle greenhouse gas emission standards in the face of a recent proposal by EPA to roll back the comparable federal standards.
  • WATER: DEC revised its general permit under the State Pollutant Discharge Elimination System program to address wastewater associated with concentrated animal feeding operations to address court decisions declaring that the current permit did not provide an opportunity for public comment on mandatory nutrient management plans and so violated the CWA.