Environmental Regulatory Update – June 2019

Posted on July 2, 2019

Download the full report for June 21, 2019 (pdf)

Recent Developments (June 21, 2019)

EPA Issues Water Quality Certification Guidance

The U.S. Environmental Protection Agency (EPA) issued guidance entitled Clean Water Act Section 401 Guidance for Federal Agencies, States and Authorized Tribes for the purpose of clarifying and streamlining Clean Water Act (CWA) requirements and procedures relating to state/tribal water quality certifications (WQC), which are required prior to issuance of certain federal permits. Under CWA § 401, a federal agency may not issue a permit or license to conduct any activity that may result in a discharge to waters of the United States unless the state or tribe where the discharge originates either certifies that the discharge complies with water quality requirement or waives the certification requirement. The recent guidance addresses: the statutory and regulatory timelines for review and acting on Section 401 certifications, including clarifying when the time begins to run: the appropriate scope of Section 401 review and conditions, which should be limited to evaluating potential water quality impacts; and the scope of information relevant to state/tribal Section 401 certification review. The guidance can be found on EPA’s website at: www.epa.gov/cwa-401.

DEC Proposes to Update Hazardous Waste Regulations

The New York State Department of Environmental Conservation (DEC) proposed revisions to New York’s hazardous waste regulations to incorporate changes to the federal regulations adopted primarily from September 30, 1999 through April 8, 2015 and revise/update certain state-only provisions. Key changes to address federal rulemaking include: deleting language classifying mineral processing characteristic sludges and byproducts being reclaimed as solid waste; amending various testing and monitoring requirements; adding mercury-containing equipment to the list of universal wastes; adopting parts of a burden reduction initiative aimed at eliminating certain recordkeeping and reporting requirements; adopting alternative requirements for hazardous waste determination and accumulation at academic laboratories; and adopting streamlined requirements for cathode ray tubes. DEC also is proposing “state-initiated corrections” that include clarifying the definition of “small quantity generator” and eliminating the requirement to submit so-called “c7 notifications” for certain commonly recycled waste streams. For the most part, DEC did not take action on post April 2015 rulemakings, including those relating to solvent contaminated wipes and rags, the new e-manifest program, and EPA’s 2016 overhaul of the hazardous waste generator requirements. Information about the proposed revisions can be found on DEC’s website at: www.dec.ny.gov/regulations/100424.html.

EPA Proposes Residual Risk/Periodic Technology Review Findings for Six NESHAPs

EPA proposed the results of its residual risk/periodic technology review of the National Emission Standards for Hazardous Air Pollutants (NESHAP) for the following source categories:: surface coating of metal cans (subpart KKKK): surface coating of metal coil (subpart SSSS); boat manufacturing (subpart VVVV): reinforced plastic composites production (subpart WWWW); asphalt processing and asphalt roofing manufacturing (subpart LLLLL); and engine test cells and stands (subpart PPPPP). In each case, after reviewing the existing standard, EPA concluded under Clean Air Act (CAA) §112(f) that the risks remaining after application of the NESHAP were acceptable and that the standard protects public health with an ample margin of safety. EPA also found under CAA § 112(d)(6) that there were no cost-effective developments in practices, processes or control technologies and that no changes in the NESHAP were necessary to address technological improvements. However, EPA proposed to revise the rules relating to startup, shutdown and malfunction consistent with judicial rulings. In addition, EPA proposed to require facilities covered by these NESHAPs to submit electronic copies of required performance test results and other reports and made other updates and corrections.

 Other Recent Developments


  • AIR: EPA adopted changes to allow gasoline blended with up to 15 percent ethanol (E15) to take advantage of the waiver for volatility that currently applies to E10 gasoline during winter months as well as changes to the renewable fuel standards program designed to reduce the potential for fraud associated with the generation and sale of fuel credits.
  • AIR: EPA proposed to reject the pollutant transport petition filed by New York State asking it to find that emissions from hundreds of upwind sources in nine states significantly contribute to nonattainment and interfere with maintenance of the 2008 and 2015 ozone national ambient air quality standards.
  • CHEMICAL: EPA amended the release notification regulations under the Emergency Planning and Community Right-to-Know Act to add a reporting exemption for air emissions from animal waste at farms.
  • OCCUPATIONAL SAFETY AND HEALTH: The Occupational Safety and Health Administration (OSHA) adopted a rule removing or revising outdated, duplicative, unnecessary and/or inconsistent requirements in its safety and health standards.
  • OCCUPATIONAL SAFETY AND HEALTH: OSHA is seeking information about possible updates to the lockout/tagout standard relating to control circuit type devices and new robotics technologies.
  • GENERAL: EPA sought comment on a draft document addressing the relationship between EPA and the states on environmental enforcement and compliance.

New York State

  • CLIMATE CHANGE: DEC revised its rules limiting carbon dioxide emissions from power plants to address existing as well as new and reconstructed units, a move that is expected to contribute to the planned shutdown of the state’s few remaining coal-fired power plants.