Environmental Regulatory Update – May 2019

Posted on May 13, 2019

Download the full report for May 3, 2019 (pdf)

Recent Developments (May 3, 2019)

EPA Addresses NPDES Groundwater Regulation Dispute

The U.S. Environmental Protection Agency (EPA) is accepting comment on an interpretative statement addressing whether the Clean Water Act (CWA) excludes releases of pollutants from a point source to groundwater from coverage under the National Pollutant Discharge Elimination System (NPDES) permit program. In the past several years, the federal circuit courts have split on whether the NPDES permit program extends to discharges that reach navigable waters via hydrologically connected groundwaters. EPA’s recent interpretive statement concluded that the CWA statute excludes all releases to groundwater from the scope of the NPDES program, even where pollutants are conveyed to jurisdictional surface waters via groundwater. Among other things, EPA noted that the provisions of the CWA addressing the NPDES program do not reference or contemplate releases to groundwater, while other sections of the CWA do. The interpretation will not affect activities in New York because the State’s definition of “waters of the State” already includes groundwater. EPA’s interpretative statement can be found in the April 23, 2019 Federal Register at: www.govinfo.gov.

EPA Finalizes Rule Regarding Discontinued Asbestos Uses

EPA finalized a rule designed to ensure that discontinued uses of asbestos cannot reenter the marketplace without first being reviewed by EPA. Under the Toxic Substances Control Act (TSCA), certain specific uses of asbestos are banned from commerce while numerous other uses have been discontinued but not specifically prohibited. As part of a broader effort to address the risks posed by asbestos, EPA revised 40 CFR Part 721 to clarify that categories of asbestos-containing products that were previously discontinued cannot reenter the marketplace without first undergoing review under TSCA’s significant new use rule—the program set forth at TSCA § 5(a), 15 USC § 2604(a), that is designed to evaluate the safety of chemicals entering the marketplace for the first time. The list of discontinued products subject to the rule includes numerous specific uses and a “catch all” category. The final rule can be found in the April 25, 2019 Federal Register at: www.govinfo.gov.

Other Recent Developments


  • AIR: EPA amended its emission standards and guidelines for commercial and industrial solid waste incinerators to clarify aspects of the rule, including certain testing and monitoring requirements, and make other changes and corrections.
  • AIR: EPA completed its residual risk/periodic technology review of the National Emission Standards for Hazardous Air Pollutants for stationary combustion turbines, 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.
  • REMEDIATION: EPA is accepting comment on draft interim recommendations for addressing groundwater contaminated with PFOA and PFOS under federal cleanup programs, including establishing a screening threshold below which no further action is required.
  • WATER: EPA is accepting comment on the development of an action plan to accelerate the application of water reuse as a means of meeting current and future water needs.
  • WATER: EPA and its Canadian counterpart are taking comment on a draft Lakewide Action and Management Plan for Lake Ontario that contains a five-year program for improving Lake Ontario water quality.

New York State

  • AIR: The New York State Department of Environmental Conservation (DEC) has scheduled a webinar to discuss planned revisions to Program Policy DAR-10, Guidelines on Dispersion Modeling Procedures for Air Quality Impact Analysis, which provides guidance on conducting dispersion modeling for purposes of determining compliance with national ambient air quality standards, air quality guidelines for toxic pollutants and other air quality modeling requirements.
  • CLIMATE CHANGE: DEC adopted California’s low emission vehicle greenhouse gas emission standards to ensure that the stricter standards remain in place if EPA roll backs the federal standards.
  • WATER: DEC is seeking comment on its Phase III Watershed Implementation Plan for New York’s Chemung and Susquehanna River Basins, which is required to implement the total maximum daily loads for the Chesapeake Bay for nitrogen, phosphorus, and sediment.