Posted on April 6, 2020
Download the full report for April 5, 2020 (pdf)
Recent Developments (April 5, 2020)
EPA Issues COVID-19 Enforcement Discretion Guidance
The U.S. Environmental Protection Agency (EPA) issued guidance explaining how it intends to exercise its enforcement discretion during the COVID-19 pandemic. The document, entitled COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program, notes that entities are expected to make every effort to comply with their environmental compliance obligations; if compliance is not reasonably practicable, they must act responsibly to minimize noncompliance and document their efforts. Key provisions address routine compliance monitoring and reporting; training; settlement agreement and consent decree reporting obligations and milestones; facility operation; public water systems regulated under the Safe Drinking Water Act; critical infrastructure; State oversight; accidental releases; and criminal violations. The guidance can be found on EPA’s website at: www.epa.gov/sites/production/files/2020-03/documents/oecamemooncovid19implications.pdf. EPA announced plans to issue a separate guidance document addressing Superfund and other remedial programs.
DEC Updates Hazardous Waste Regulations
The New York State Department of Environmental Conservation (DEC) revised 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 rulemakings 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 made “state-initiated corrections” that include clarifying the definition of “small quantity generator” and eliminating the requirement to submit so-called “c7 notifications” to DEC 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. These are being addressed in a separate rulemaking. The revised regulations can be found at: www.dec.ny.gov/regulations/100424.html.
DEC Issues Trio of Air Regulations
In the past month, DEC issued a trio of air pollution control regulations to eliminate outdated provisions, conform the State regulations to federal requirements, and address technological developments.
- Fuel Composition and Use—Waste Oil as a Fuel. DEC repealed and replaced 6 NYCRR Part 225-2, which regulates the burning of waste oil for energy recovery. The new rule updates key definitions and constituent limits; removes outdated work practices; expands the types of facilities allowed to burn waste oil onsite while lowering the heat input threshold; updates monitoring, reporting and recordkeeping requirements; and makes other updates and corrections. Of particular note, DEC dropped the distinction between Waste Fuel A and B and now requires facilities that burn used oil containing chemical waste and waste oils that do not meet the Subpart 225-2 specifications to be regulated under 6 NYCRR Part 212 or the hazardous waste regulations not Subpart 225-2.
- Distributed Generation Sources Located in New York City, Long Island, Westchester and Rockland Counties. Following a court challenge to its 2016 predecessor, DEC adopted a new rule for distributed generation (DG) sources—stationary reciprocating or rotary internal combustion engines that feed into the distribution grid, produce electricity for use at host facilities or both. The replacement rule, which is set forth at 6 NYCRR Part 222, applies to owners/operators of DG sources with maximum mechanical output ratings of 200 horsepower or greater (hp) that: (1) are classified as economic dispatch sources; (2) are located in the New York City metropolitan area; and (3) have the potential to emit less than 25 tons per year (tpy) of nitrogen oxide (NOx) (i.e., are minor facilities). The regulations requires DG sources to notify DEC that they intend to operate as DG sources and comply with specified emission limits, which will be phased in over the next five years.
- Standards for Crematories; NOx Emission Standards for Municipal Solid Waste (MSW) Incinerators. DEC revised its incinerator standards, including updating its standards for crematories and adding a new subpart to limit NOx emissions from MSW combustion units. With respect to crematories, DEC repealed and replaced 6 NYCRR Subpart 219-4, Incinerators, Crematories, while sunsetting Subparts 219-5 and 219-6, a change that requires existing units regulated under these subparts to comply with more stringent standards. Key changes include stricter particulate matter emission limits, eliminating temperature limits in the first chamber, prohibiting incineration of certain materials as part of cremation, simplifying the performance testing requirements, and eliminating compulsory fenceline impact modeling. The new MSW standards establish NOx limits for MSW incinerators that differ based on the type of incinerator.
The regulations can be found at: www.dec.ny.gov/regulations/propregulations.html.
EPA Issues Residual Risk/Periodic Technology Review Findings for Six NESHAPs
EPA completed its residual risk/periodic technology review of the National Emission Standards for Hazardous Air Pollutants (NESHAP) for the following source categories: municipal solid waste landfills (subpart AAAA); solvent extraction for vegetable oil (subpart GGGG); boat manufacturing (subpart VVVV); reinforced plastic composites production (subpart WWWW); stationary combustion turbines (subpart YYYY); and asphalt processing and asphalt roofing manufacturing (subpart LLLLL). 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 allocated allowances for specific hydrochlorofluorocarbons for the years 2020 through 2029 and otherwise revised and updated requirements under the program for phasing out production and consumption of ozone-depleting substances (ODS).
- CLIMATE CHANGE: EPA revised its ODS regulations to limit the appliance maintenance and leak repair provisions to refrigeration and air conditioning equipment containing an ODS after concluding that EPA lacked authority to regulate non-ODS substitutes like hydrofluorcarbons under certain provisions of the appliance maintenance program.
- CHEMICAL: EPA is seeking comment on the results of its draft risk evaluation for trichloroethylene under the Toxic Substances Control Act, which found unreasonable risks associated with exposures to the commonly-used organic chemical by workers, consumers, and others.
- WATER: EPA is seeking comment on its preliminary determination to adopt a national primary drinking water regulation for perfluorooctanesulfonic acid and perfluorooctanoic acid (PFOS/PFOA) under the Safe Drinking Water Act, while declining to set standards for the remaining six contaminants studied.
- GENERAL: EPA adopted regulations outlining the procedures for conducting on-site civil inspections by EPA staff and contractors.
- GENERAL: EPA is seeking comment on a supplement to its controversial proposed Transparency in Regulatory Decisionmaking regulation that would require EPA to make the data underlying certain studies offered to support major rulemakings available in a manner that allows for independent validation.
New York State
- AIR: DEC prohibited the sale of federal aftermarket catalytic converters (AMCC) and updated existing AMCC recordkeeping and reporting requirements for gasoline-powered automobiles, light-duty trucks and medium-duty passenger vehicles to conform to stricter California standards.