Environmental Regulatory Update – June 2018

Posted on June 26, 2018

Download the full report for June 18, 2018 (pdf)

Recent Developments (Updated June 18, 2018)

EPA Plans Changes to NAAQS Review Process

The U.S. Environmental Protection Agency (EPA) recently issued a memorandum outlining changes designed to streamline the review of the national ambient air quality standards (NAAQS), which must be reevaluated every five years under the Clean Air Act (CAA). EPA’s proposed changes are organized around five principles: (1) meeting statutory deadlines, including perhaps combining various reports into a single document; (2) addessing all CAA provisions in NAAQS reviews, including the social, economic and energy effects of possible changes to the NAAQS; streamlining and standardizing the process of assessing policy-relevant information; differentiating science and policy considerations in the NAAQS review process; and issuing timely implementation regulations and guidance to assist states in developing plans to implement newly revised NAAQS. The memo can be found on EPA’s website at: www.epa.gov/sites/production/files/2018-05/documents/image2018-05-09-173219.pdf.

EPA Proposes to Rescind Recent RMP Rule Changes

EPA proposed to rescind 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 recently proposed, among other things, to: rescind 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; give companies greater flexibility in the timing and content of newly required tabletop and field exercises while taking comment on possibly rescinding these requirements; rescind requirements to provide certain basic information to the public; and significantly extend the compliance deadlines. The proposed rule can be found in the May 30, 2018 Federal Register at: www.gpo.gov/fdsys.

DEC Proposes Changes to Power Plant Rules

The New York State Department of Environmental Conservation (DEC) proposed a pair of regulations limiting emissions from fossil fuel-fired power plants. The first rulemaking proposes to repeal and replace the existing regulations implementing the Cross-State Air Pollution Rule (CSAPR)—EPA’s comprehensive cap-and-trade program that limits emissions of nitrogen oxides (NOx) and sulfur dioxide (SO2) to address ongoing ozone and fine particulate matter nonattainment problems. The new rule will incorporate most of the federal rules by reference except where state-specific regulations are necessary. The affected rules are 6 NYCRR Part 243: Transport Rule NOx Ozone Season Trading Program; Part 244: Transport Rule NOx Annual Trading Program; and Part 245: Transport Rule SO2 Group I Trading Program. In a related development, DEC proposed to revise 6 NYCRR Part 251 to establish carbon dioxide emission limits for existing power plants in addition to those for new and modified units. Compliance with the limits will necessitate the installation of carbon capture and storage technology at New York’s few remaining coal-fired power plants, all of which are already scheduled to close. The rules can be found on DEC’s website at: www.dec.ny.gov/regulations/propregulations.html#public.

State Household Cleansing Product Information Disclosure Program Announced

DEC issued a guidance document entitled Household Cleansing Product Ingredient Disclosure Program implementing a long-standing regulation found at 6 NYCRR Part 659 that requires manufacturers of “household cleansing products” distributed in the State to provide DEC with information about their ingredients and make that information publicly available. The guidance covers manufacturer information, product information, the extent of disclosure (specifying what ingredients must be disclosed), and the information required for each disclosed ingredient, including the effects on human health and the environment. Manufacturers must post the required information on their website in accordance with detailed posting parameters relating to website location, ease of access, data format, and other concerns. The guidance also contains directions on protecting confidential business information and deadlines for complying with various requirements. The guidance can be found on DEC’s website at: www.dec.ny.gov/chemical/109021.html.

Other Recent Developments

Federal          

  • AIR: EPA is proposing to retain the existing primary (health-based) NAAQS for SO2 after finding that the current standards provide the requisite protection of public health with an adequate margin of safety.
  • AIR: EPA published the remaining area designations under the 2015 ozone NAAQS, classifying all of New York State except the New York City metropolitan area as attainment for ozone.
  • AIR: EPA proposed the results of its residual risk/periodic technology review of the friction materials manufacturing and surface coating of wood building products categories under the National Emission Standards for Hazardous Air Pollutants program.
  • CHEMICAL: EPA is taking comments on problem formulations—interim documents intended to help the agency complete risk assessments for the first ten chemicals identified for review under the 2016 update to the Toxic Substances Control Act (TSCA). In a related development, EPA published a new significant new use rule relating to asbestos—one of the 10 substances identified for review under TSCA. The rule, if adopted, will compel companies seeking to use asbestos in certain products to notify EPA before proceeding.
  • GENERAL: EPA issued a new Strategic Plan outlining the agency’s goals and priorities for the years 2018-2022 that is consistent with its “back to basics agenda,” which focuses on clean air and water, Superfund, TSCA implementation, improved federal/state collaboration, and improved processes and adherence to the rule of law.
  • GENERAL: EPA published an advance notice of proposed rulemaking seeking comment on its practices in considering costs and benefits in the rulemaking process in the face of purported confusion concerning when and how such assessments should be completed.

New York State

  • SOLID WASTE: DEC issued a report containing recommendations for handling the management and disposal of used, expired and unwanted pharmaceuticals that calls for establishment of a stewardship program funded by pharmaceutical manufacturers that would require all pharmacies to provide collection boxes and offer prepaid mailback envelopes for disposing of pharmaceuticals.
  • WATER: The New York State Department of Health (DOH) adopted a permanent rule requiring lead testing of public school drinking water after a series of emergency rulemakings.
  • WATER: DOH revised the State’s drinking water regulations to incorporate changes needed to implement the federal Revised Total Coliform Rule, which updates the requirements for monitoring coliform and implementing corrective measures.