Environmental Regulatory News Update – December 2020

Posted on December 10, 2020

Download the full report for December 9, 2020 (pdf)

Recent Developments (December 9, 2020)

EPA Formally Repeals NESHAP Once In, Always In Policy

The U.S. Environmental Protection Agency (EPA) amended the National Emission Standards for Hazardous Air Pollutants (NESHAP) regulations to implement its previous repeal of the “once in, always in” policy. The NESHAP program regulates both major and area stationary sources of hazardous air pollutants (HAPs), with generally stricter emission standards for sources with the potential to emit (PTE) at least 10 tons per year (tpy) of any single HAP or 25 tpy of any combination of HAPs. In 1995, EPA issued guidance declaring that major sources could not cap emissions (i.e., become area sources) once they were required to comply with an emission limit or other substantive requirement of the applicable major source NESHAP. In 2018, EPA rescinded its once in, always in policy after finding that it violates the plain language of the Clean Air Act, which allows major sources to accept permit limitations and become area sources. With the recent rulemaking, EPA revised the NESHAP implementing regulations found at 40 CFR Part 63, subpart A to clarify that major sources can become area sources at any time by capping their PTE. In addition, EPA revised the definition of PTE to delete a provision requiring permit limits to be federally enforceable for capping purposes. The revisions can be found in the November 19, 2020 Federal Register at: www.govinfo.gov.

EPA Adopts NSR Project Emissions Accounting Rule

EPA adopted regulations implementing its previous change in interpretation of the concept of project under new source review (NSR). In deciding whether emissions of a particular pollutant exceed the threshold for triggering NSR, EPA traditionally has considered only project-related emission increases during the first step in the review process, with reductions addressed during the subsequent emission netting step. In March 2018, EPA issued guidance announcing that it had reinterpreted the regulations and concluded that emission decreases associated with the project under review should be considered during the first step of the NSR review process rather than as part of the emission netting analysis. With the recent rulemaking, EPA revised the NSR regulations to finalize implementation of the change, which is expected to simplify the process of determining NSR applicability. The rule can be found in the November 24, 2020 Federal Register at: www.govinfo.gov.

Other Recent Developments


  • AIR: EPA updated and streamlined its existing gasoline, diesel and other fuel quality regulations at 40 CFR Part 80 to eliminate expired provisions and consolidate different and overlapping regulations into a new rule at 40 CFR Part 1090.
  • CHEMICAL: EPA issued a final risk evaluation for trichloroethylene and sought additional comment on a supplement to the draft risk evaluation for 1,4-dioxane under the Toxic Substances Control Act. The evaluations identify conditions of use that pose a risk to health and/or the environment and must therefore be assessed to determine whether mitigation measures are necessary.
  • REMEDIATION: EPA decided not to impose financial responsibility requirements under Section 108(b) of the Comprehensive Environmental Response, Compensation and Liability Act for facilities in the electric generation, transmission and distribution industry, petroleum and coal products manufacturing industry, and chemical manufacturing industry.
  • WATER: EPA issued an interim strategy for addressing per- and polyfluoroalkyl substances (PFAS) in National Pollutant Discharge Elimination System permits issued by EPA, addressing issues such as PFAS monitoring, inclusion of best management practices to control/abate PFAS, and recommendations for sharing PFAS-related permitting practices.

New York State

  • AIR: The New York State Department of Environmental Conservation (DEC) revised its annual air emission statement regulations to require electronic submission and make other changes, including setting submission deadlines based on the number of processes in the facility’s Title V air permit.
  • WATER: DEC sought comment on a Section 401 water quality certification in conjunction with nationwide permits recently proposed to be reissued by the U.S. Army Corp of Engineers.