Posted on January 15, 2020
Download the full report for January 8, 2020 (pdf)
Recent Developments (January 8, 2020)
EPA Rescinds Key RMP Rule Changes
The U.S. Environmental Protection Agency (EPA) rescinded key aspects of its 2017 revisions to the risk management plan (RMP) regulations contained in 40 CFR Part 68. The RMP program requires facilities storing listed hazardous substances above threshold quantities to conduct a hazard assessment and prepare a RMP. In the wake of several major chemical accidents, the Obama administration EPA adopted major changes to the RMP regulations, imposing additional accident prevention requirements, requiring periodic notification and field exercises, and increasing the availability of information. In response to industry concerns, the Trump administration EPA rescinded virtually all of the requirements added to the accident prevention portion of the RMP rule, including provisions requiring a compulsory root cause analysis and independent third party audit at certain facilities following major incidents; gave companies greater flexibility in the timing and content of newly required tabletop and field exercises; rescinded requirements to provide certain basic information to the public; and significantly extended the compliance deadlines. The rule can be found in the December 19, 2019 Federal Register at: www.govinfo.gov.
DEC Issues New Visual Impact Policy
The New York State Department of Environmental Conservation (DEC) revised its program policy on evaluating the significance of visual and aesthetic impacts under the State Environmental Quality Review Act (SEQRA). The program policy—which applies when an action is proposed within the viewshed of a designated aesthetic resource and DEC is lead agency—establishes the following six-step process for evaluating a project’s visual impacts: verify the project sponsor’s inventory of visual resources, which includes specific types of aesthetic resources of statewide significance; verify the sponsor’s inventory of viewer characteristics, visual character and aesthetic value; verify the methods used to assess visual impacts; determine or verify the sponsor’s assessment of the potential significance of the visual impact (i.e., the magnitude of the impact and its importance in terms of the number of people/geographic area affected); review measures needed to avoid, mitigate or offset the impact, if significant; and enforce mitigation measures. Significant changes from the existing policy include clarifying when assessments are necessary, updating the list of aesthetic resources, and clarifying how visual impacts fit into the SEQRA framework. The revised program policy—entitled Assessing and Mitigating Visual and Aesthetic Impacts—can be found on DEC’s website at: www.dec.ny.gov/permits/115147.html.
DEC Updates Architectural and Industrial Maintenance Coating Standards
DEC amended its standards governing the volatile organic compound (VOC) content of architectural and industrial maintenance (AIM) coatings to: add new coatings, lower the VOC content of other coatings, and consolidate certain listed coatings under other coating categories; narrow the exemption for coatings sold in containers of one quart or less to eliminate the exemption for floor coatings and prohibit “bundling” of small containers to avoid regulation; update the labeling requirements for AIM coatings; and make other changes to 6 NYCRR Part 205. AIM coatings are coatings, such as paints, that are applied to stationary structures or their appurtenances at the site of installation, portable buildings at the site of installation, pavements, or curbs. The new standards will take effect January 1, 2021. Paints manufactured before that date can be sold through May 1, 2023. The regulation can be found on DEC’s website at: www.dec.ny.gov/regulations/116139.html.
Governor Signs Key Environmental Legislation
With just weeks remaining before expiration, Governor Andrew Cuomo signed the following environmental bills enacted during the last legislative session: A.1565 creating a permanent environmental justice (EJ) advisory group to oversee development of a model EJ policy, a key component of the landmark Climate Leadership and Community Protection Act establishing a comprehensive program for reducing greenhouse gas emissions in the State; S.04351 requiring architectural paint producers to develop and implement post-consumer paint collection programs; S.2139B, requiring DEC to establish limits on the mercury content of fluorescent lamps and prohibit the sale of noncompliant products; A.00445A, banning the discharge or use of Class B firefighting foam that contains intentionally added perfluoroalkyl and polyfluoroalkyl substances (PFAS); and A.6295A, prohibiting the sale of certain consumer products containing 1,4-dioxane. The laws can be found at www.assembly.state.ny.us.
Other Recent Developments
- AIR: EPA proposed to revise and update its new source review rules to correct typographical, cross-reference and other minor errors, delete provisions remaining after the vacatur of various rule changes by courts, and incorporate statutory requirements that have never been added to the rules.
- AIR: EPA proposed revisions to the National Emission Standards for Hazardous Air Pollutants for miscellaneous organic chemical manufacturing following a residual risk/periodic technology review.
- CHEMICAL: EPA designated 20 chemicals as high priority substances for purposes of conducting risk evaluations under the Toxic Substances Control Act (TSCA), a process that may eventually lead to the imposition of use limitations or other measures to reduce the risk of using the chemicals.
- CHEMICAL: EPA is accepting comment on guidance clarifying EPA’s approach to evaluating new chemicals under TSCA Section 5.
- REMEDIATION: EPA proposed not to impose financial responsibility requirements for facilities in the petroleum and coal products manufacturing industry under Section 108(b) of the Comprehensive Environmental Response, Compensation and Liability Act.
- REMEDIATION: EPA issued interim recommendations for addressing groundwater contaminated with certain PFAS chemicals under federal cleanup programs.
New York State
- AIR: DEC issued strict ozone season nitrogen oxide emission limits for simple cycle and regenerative combustion turbines (i.e., peaking units) that will likely lead to the replacement or shutdown of these units, which are largely found at downstate power plants.
- CLIMATE CHANGE: DEC proposed regulations barring certain uses of hydrofluorocarbons in refrigerants, aerosol propellants and foam-blowing agents in the wake of an EPA decision to roll back a comparable federal prohibition under the Significant New Alternatives Policy (SNAP) program following a court decision.
HAZARDOUS WASTE: DEC announced additional workshops relating to possible changes to the state hazardous waste regulations to address EPA’s 2016 hazardous waste generator improvement rule and its 2019 rule relating to hazardous waste pharmaceuticals