Fall 2011 Regulatory Agendas: Environmental Protection

Posted on 1/31/2012 by James Griffin

Twice each year, the departments and independent agencies of the Federal government publish public agendas of their rulemaking activities. These semiannual agendas both review recent new rules and announce upcoming rule activities. While each agency and department creates its own agenda, the agenda system as a whole is organized by the Office of Management and Budget under the Regulatory Flexibility Act, Administrative Procedure Act, and in conformance with several executive orders. 
Traditionally, the agendas are published in the Federal Register, but since 2007, the Internet has been the primary medium of distribution. On Friday, January 20, 2012, the Regulatory Information Service (a sub-unit of the OMB) softly published the “Fall 2011″ regulatory agenda on its Web site. As the Federal Register has yet to publish any notice of its own on these agendas, let’s get right to Lion’s semiannual review of the EHS agencies agendas. 
The Environmental Protection Agency is responsible for enforcing many of our nation’s environmental laws. The Agency’s official statement of priorities, part of the semiannual agenda, is available here, and a summary of a few significant items follows. 
Toxic Substances Control Act
Section 402(c)(3) of the Toxic Substances Control Act (TSCA) requires EPA to regulate renovation or remodeling activities in target housing (most pre-1978 housing), pre-1978 public buildings, and commercial buildings that create lead-based paint hazards. On April 22, 2008, EPA issued a final rule to address lead-based paint hazards created by renovation or remodeling activities in target housing and child-occupied facilities built before 1978. This new rulemaking will address renovation or remodeling activities in commercial and public buildings as required by Section 402(c)(3) of TSCA. EPA is currently under a court order to publish a proposal by July 15, 2012.
Having conducted a preliminary analysis, the EPA is considering banning the use of mercury in switches, relays/contactors, flame sensors, and button cell batteries. The earliest the EPA may publish a proposal is October 2012.
As part of an overall phase out of mercury use, the EPA is proposing to incorporate the most recent versions of the American Society for Testing and Materials (ASTM) international standards (ASTM standards) into EPA regulations that provide flexibility to use alternatives to mercury-containing industrial thermometers. The EPA already proposed a rule last January (76 FR 2056) and had expected to finalize this rule in December 2011.
Because the use of elemental mercury in barometers, manometers, and hygrometers/psychrometers has been almost entirely phased out, the EPA will now consider the resumption of manufacture, import, or processing of any mercury-containing devices to be a significant new use under TSCA. A proposal was published on May 6, 2011 (76 FR 26225), and the EPA may publish a final rule by May 2012.
Resource Conservation and Recovery Act
The Agency is considering a proposal to revise the cathode ray tube (CRT) final rule published on July 28, 2006 (71 FR 42927) to address certain implementation concerns. Considered are adding a definition of “exporter,” which will clarify the liabilities of intermediaries, such as brokers, in fulfilling the export-related requirements of the rule, and including additional items to the notification required for CRTs exported for reuse. These requirements will make it easier to enforce the export requirements of the rule and will enable the Agency to obtain additional information on the export of this class of used electronics. The Agency expects to publish an official proposal in May 2012.
The Underground Storage Tank (UST) regulations were first promulgated in 1988, primarily to prevent releases from retail petroleum marketers (gas stations) and other facilities into the environment. These regulations have reduced the incidents of contamination. However, there is a need to revise the regulations to incorporate changes to the UST program from the Energy Policy Act of 2005, as well as to update outdated portions of the regulations due to changes in technology since the 1980s. Through this action, EPA will ensure Federal enforceability of the EPAct provisions across the country. EPA will also use knowledge of the program gained over the last 20 years to update and revise the regulations to make targeted changes to improve implementation and prevent UST releases. The Agency published a notice of proposed rulemaking on November 18, 2011 (76 FR 71708), the comment period is open until February 16, 2012, and the date of a final action is to be determined. 
In 2003 (68 FR 65586), EPA proposed to modify the Resource Conservation and Recovery Act (RCRA) hazardous waste regulations for management of solvent-contaminated industrial wipes. EPA proposed to conditionally exclude wipes that are disposed of from the definition of hazardous waste and to conditionally exclude laundered wipes from the definition of solid waste. If finalized, this regulation will impact the management of two types of solvent-contaminated wipes: (1) wipes disposed of in land disposal units or by combustion after use, and (2) wipes that are laundered after use to remove the solvent and then are used again. According to the Agenda, the Agency anticipates a final action by June of 2012.
On March 18, 2010 (75 FR 13066), EPA published a Direct Final Rule (Hazardous Waste Technical Corrections and Clarifications Rule) that promulgated a number of amendments to the hazardous waste regulations to correct existing errors in the hazardous waste regulations that occurred over time as a result of typographical errors or incorrect citations to paragraphs and other references. On June 16, 2010, all of the amendments to the Direct Final Rule went into effect, except for six amendments that were withdrawn (June 4, 2010; 75 FR 31716) because adverse comments were received. The final rule will address two of the six withdrawn amendments and may be published in early 2012.
Clean Water Act
This proposed action would establish requirements for, at minimum, managing stormwater discharges from newly developed and re-developed sites, to reduce the amount of pollutants in stormwater discharges entering receiving waters by reducing the discharge of excess stormwater. EPA may take other actions to implement improved control of stormwater pollution and more efficient rainwater use. The Phase I and Phase II MS4 regulations might also be combined and amended and may include provisions for better managing existing discharges. As part of a judicial settlement agreement, the EPA is obligated to publish a final rule by November 19, 2012.
EPA plans to propose regulations that would update specific elements of the existing National Pollutant Discharge Elimination System (NPDES) in order to better harmonize regulations and application forms, improve permit documentation and transparency, and provide clarifications to the existing regulations. In this effort, EPA plans to address application, permitting, monitoring, and reporting requirements that have become obsolete or outdated due to programmatic, technical, or other changes that have occurred over the past 35 years. The EPA’s current timetable calls for a proposal in March 2012 and a final rule in October. 
EPA is developing pretreatment standards for pollutant discharges from dental offices. When dentists place or remove amalgam fillings, mercury and other contaminants are flushed into the sewer. Dental amalgam contains mercury and other metals that have the potential to pass through or interfere with municipal wastewater treatment at Publicly Owned Treatment Works (POTWs). EPA’s technology assessment will focus on best management practices, such as use of amalgam separators, as a regulatory requirement. The EPA’s current timetable calls for a proposal in March 2012 and a final rule by next January. 
Section 316(b) of the Clean Water Act (CWA) requires EPA to ensure that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available (BTA) for minimizing adverse environmental impacts. Pursuant to a settlement agreement, the EPA is under court order to publish new final rules for certain facilities no later than July 12, 2012. 
This regulatory action would amend “Guidelines Establishing Test Procedures for the Analysis of Pollutants” at 40 CFR Part 136 to approve test procedures (analytical methods) for use by testing laboratories for water monitoring. These test procedures are used to implement the NPDES program unless an alternate procedure is approved by a Regional Administrator. The regulation would also revise, clarify, and correct errors and ambiguities in existing methods and the water monitoring regulations. The EPA proposed these rules on September 23, 2010 (75 FR 58024) and expects to complete this rulemaking by the end of February 2012.
EPA is launching an effort to update specific elements of the existing NPDES regulations in order to provide clarifications related to the NPDES permit application and NPDES permit monitoring analytical detection level requirements. The EPA proposed these regulations on June 23, 2010 (75 FR 35712) and expects to finalize these rules any day now.
Clean Air
The EPA is convening a proceeding for reconsideration of a final rule published in the Federal Register on December 21, 2007 (72 FR 72607). The subject rule was promulgated in response to a remand by the U.S. Court of Appeals for the District of Columbia Circuit in New York v. EPA, 413 F.3d 3 (D.C. Cir. 2005), in order to clarify the “reasonable possibility” recordkeeping and reporting standard under the New Source Review (NSR) program. After review of issues raised by the State of New Jersey by petition and letter, the EPA has decided to exercise its discretion to conduct a reconsideration of this final rule and will therefore be reopening the public comment period for the rule. The rule will remain in effect while the reconsideration proceeding is under way. 
This action will amend regulations in the general provisions of regulations promulgated under the Clean Air Act (Subpart A of Part 63) that provide for or are related to an exemption from the requirement to comply with Clean Air Act section 112 emission standards during startup, shutdown, and malfunction (SSM) events. On December 19, 2008, in Sierra Club v. EPA, the United States Court of Appeals for the District of Columbia Circuit vacated the SSM. These general provisions are not specific to any source category and apply when incorporated into source category-specific standards. In addition, other subparts with similar provisions will be amended so that applicable standards will no longer have exceptions for sources that report malfunction conditions, to reflect the court vacatur. The EPA anticipates a notice of proposed rulemaking by March 2012.
This amendment will be a policy update of a rule from several decades ago. It will amend the Part 52 Approval and Promulgation of State Implementation Plans, 1977 Clean Air Act Amendments to Prevention of Significant Deterioration (PSD) 52.21(u) Delegation of Authority. This rule will delete a section that restricts tribes from taking delegation of the PSD program. It will add tribes to Paragraph 2, along with states and local air pollution control agencies. These changes are intended to ensure that tribes are treated the same as states and locals and to enable direct delegation of New Source Review to tribes. This rule will also update paragraph numbering and an erroneous cross-reference to be consistent with the current program. The EPA already published a notice of proposed rulemaking on December 30, 2011 (76 FR 82234) and expects to complete a final rule by February 28, 2012.
This direct final action, scheduled for early 2012, would list as acceptable (subject to use restrictions) a substitute for ozone-depleting substances in the fire suppression and explosion protection sector under EPA’s Significant New Alternatives Policy (SNAP) Program. The SNAP Program evaluates substitutes for ozone-depleting substances and publishes lists of acceptable and unacceptable substitutes. The intended effect of the SNAP Program is to support the transition away from ozone-depleting substances through review of substitutes and their effects on human health and the environment. 
The Maximum Achievable Control Technology (MACT) standard for Mineral Wool Production was promulgated on June 1, 1999, and the MACT for Wool Fiberglass Production was promulgated on June 14, 1999. The Clean Air Act requires EPA to evaluate the risk remaining to human health within eight years of promulgation of each MACT standard. Along with risk, the EPA is also required to review new technology in the industry that can reduce hazardous air pollutant (HAP) emissions from regulated sources in the industry and may consider costs under this technology review. EPA is addressing these Clean Air Act requirements under a combined risk and technology review (RTR). The EPA published a notice of proposed rulemaking on November 25, 2011 (76 FR 72770) and anticipates a final rule by July 2012. 
This action will develop and consolidate state-of-the-art uniform standards that will then become applicable when they are referenced in future regulatory actions, such as new and revised Control Technique Guidelines documents, NSPS technology reviews, and MACT Risk and Technology reviews for organic chemical processing industries. In addition to developing the uniform standards, EPA also expects to develop tools for the proper application of these uniform standards during rule development, including anticipated costs and pollutant emission reductions. The EPA expects to complete this rulemaking action by August 2012.
In response to a petition from the National Resources Defense Council, the EPA is reconsidering the “Aggregation” rule that addressed when a source must combine (i.e., “aggregate”) nominally-separate physical and operational changes for the purpose of determining whether they are a single change and subject to review under the New Source Review (NSR) program. The EPA anticipates completing this action by April 2012.

Tags: Act, Air, Clean, Clean Water Act, EPA, new rules, RCRA

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