Posted on January 27, 2021
Download the full report for January 8, 2021 (pdf)
Recent Developments (January 8, 2021)
EPA Takes Steps to Regulate Legacy Chemicals Under TSCA
In the past month, the U.S. Environmental Protection Agency (EPA) has taken steps to regulate various existing chemicals under the Toxic Substances Control Act (TSCA), which was amended in 2016 to require EPA to prioritize existing chemicals for risk evaluation and potential regulation. As part of that effort, EPA identified certain chemicals for review and regulation outside the newly established prioritization framework. In fulfillment of its mandate concerning these chemicals, EPA published risk evaluations for perchloroethylene, n-methylpyrrolidone, and chrysotile asbestos. The risk evaluations identify conditions of use for the chemicals and single out those that present a potential risk to workers, occupational non-users, consumers and others. EPA plans to issue a separate risk assessment evaluating legacy uses and associated disposal of all types of asbestos fibers, not just chrysotile asbestos. Having determined that certain uses of these chemical pose a risk, EPA must now develop regulations containing measures to manage that risk. In a series of separate actions, EPA also adopted rules restricting the use of the following persistent, bioaccumulative, and toxic chemicals pursuant to TSCA Section 6(h): decabromodiphenyl ether, phenol, isopropylated phosphate (3:1), 2,4,6-tris(tert-butyl)phenol, pentachlorothiophenol, and hexachlorobutadiene. See the accompanying Environmental Breakfast Club Regulatory Summary for January 2021 for links to these rulemakings and notices.
DEC Adopts Measures Implementing 2019 Climate Change Law
The New York State Department of Environmental Conservation (DEC) recently issued regulations and guidance implementing the 2019 Climate Leadership and Community Protection Act (CLCPA), which establishes statewide goals for greenhouse gas (GHG) emission reductions and renewable energy production, together with a framework for adopting the measures necessary to achieve those goals. In a recent rulemaking, EPA adopted statewide GHG emission limits—set forth at 6 NYCRR Part 496—that implement the CLCPA goal of reducing GHG emissions 40% and 85% from 1990 levels by 2030 and 2050, respectively. Consistent with the CLCPA, the statewide GHG emission limits adopted by DEC include both GHG emissions from sources located within the state and GHGs produced outside the state that are associated with the generation of electricity imported into the state and those associated with the extraction and transmission of fossil fuels imported into the state. The rule—which does not impose compliance obligations on sources—can be found at: www.dec.ny.gov/regulations/121052.html. In a related development, DEC issued its value of carbon guidance, which provides values for use by State agencies in assessing the benefits of GHG emission reductions associated with state actions such as rulemakings, funding decisions, and permits. The guidance can be found at: www.dec.ny.gov/energy/99223.html.
EPA Retains Particulate Matter and Ozone National Ambient Air Quality Standards
Following a comprehensive review, EPA retained the existing national ambient air quality standards (NAAQS) for particulate matter (PM) and ozone, without revision. Under the CAA, EPA sets NAAQS defining acceptable ambient air quality for certain common pollutants, classifies areas of the country based on whether they are attaining the NAAQS, and requires states to develop plans identifying the measures they will require to attain/maintain compliance with the NAAQS. As part of a mandatory five-year review of the NAAQS, EPA determined that the existing PM and ozone NAAQS would protect public health and welfare and so did not require revision. Retaining the existing standards means states will not be required to adopt measures to reduce emissions of PM/ozone and their precursors to meet new, stricter standards. The notices can be found in the December 18, 2020 and December 30, 2020 Federal Registers at www.govinfo.gov.
Other Recent Developments
- AIR: EPA adopted a rule governing the analysis of the benefits and costs associated with “significant” rulemakings under the CAA, requiring EPA to use the best available scientific methods in various fields and establishing key elements of the analysis.
- SOLID WASTE: EPA sought comment on its Interim Guidance on the Destruction and Disposal of Perfluoroalkyl and Polyfluoroalkyl Substances, which presents currently available information on destruction and removal of so-called “PFAS” chemicals and the materials containing them.
- OCCUPATIONAL SAFETY AND HEALTH: The Occupational Safety and Health Administration issued an instruction implementing its Site-Specific Targeting (SST) inspection program, which targets for inspection establishments with high rates of on-the-job injury and illness identified using data self-reported by employers.
- GENERAL: EPA adopted a new rule entitled “Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information” that establishes how EPA will consider the availability of dose-response data in making key policy decisions and requires EPA to identify and make publicly available the science that serves as the basis for informing significant regulatory actions.
New York State
- CLIMATE CHANGE: DEC and the New York State Energy Research and Development Authority issued a pair of rules implementing changes to the Regional Greenhouse Gas Initiative (RGGI) GHG cap-and-trade program for power plants that were required to keep New York’s program up-to-date.
- WATER: DEC revised and reissued its program policy entitled Mercury – SPDES Permitting and Multiple Discharge Variance, which provides guidance on developing State Pollutant Discharge Elimination System permits that regulate wastewater and stormwater discharges containing mercury.