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The Spring 2011 Regulatory Agenda: EPA

Posted on July 11, 2011 by James Griffin

On July 7, 2011, Federal regulatory agencies published their semiannual regulatory agendas and regulatory plans as required under the Regulatory Flexibility Act [5 U.S.C. 602]. The agenda is where agencies summarize all current or projected rulemakings and review existing regulations and completed actions. While the detailed agendas are no longer published in the Federal Register, the complete Unified Agenda (for all departments and agencies) is now available online at www.reginfo.gov.
 
Below are significant rulemaking updates from the Environmental Protection Agency.
 
To learn more about a rule or to read the full agenda, go to the Current Unified Agenda of Regulatory and Deregulatory Actions, select the agency you are looking for from the drop-down menu, and look for the entry with the matching Rule Identifier Number (RIN). Dates indicated in the agenda are the agency’s earliest possible date of issuance.
 
Environmental Protection Agency
 
Clean Water Act
 
  • Stormwater Regulations Revision to Address Discharges from Developed Sites (RIN: 2040-AF13) The EPA is planning to publish a proposed rule that would establish minimum requirements for 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. This action may also expand the scope of municipal separate storm sewer systems (MS4) required to be regulated under NPDES permits, to include rapidly developing areas and to cover some discharges that are not currently regulated. The Phase I and Phase II MS4 regulations might also be combined and amended and may include provisions for better managing existing discharges. The proposed rule is planned for a September 2011 publication.
  • National Pollutant Discharge Elimination System (NPDES) Permit Regulations for New Dischargers and the Appropriate Use of Offsets With Regard to Water Quality Permitting (RIN: 2040-AF17)  A proposed rule is planned for November 2011 to clarify the EPA’s approach to permitting new dischargers in order to ensure the protection of water quality under Clean Water Act Section 301(b)(C). The rulemaking may examine options to address the appropriate and permissible use of offsets that ensures that NPDES permits are protective of water quality standards. The rulemaking may also examine options for addressing new dischargers in impaired waters, both when a Total Maximum Daily Load (TMDL) is in place and prior to Total Maximum Daily Load issuance.
 
Safe Drinking Water Act
 
  • National Primary Drinking Water Regulations for Lead and Copper: Regulatory Revisions (RIN: 2040-AF15) The EPA plans to publish a proposed rule in May 2012 to address regulatory revisions to strengthen implementation of the existing Lead and Copper Rule. Regulatory changes to be addressed may include changes to flushing guidance and sample collection following a partial lead service line replacement; lead service line replacement programs; potential changes to the sample site selection criteria for lead and copper sites; guidance on new corrosion control treatments; tap sampling issues including pre-stagnation flushing, aerator removal, and maximum stagnation times; and consecutive water systems.
 
Emergency Planning and Community Right to Know Act
 
 
Clean Air Act
 
  • Implementing Periodic Monitoring in Federal and State Operating Permit Programs (RIN: 2060-AN00) The EPA is considering a proposed rule for December 2011 that would amend the existing Compliance Assurance Monitoring (CAM) rule (40 CFR Part 64) to be implemented through the operating permits rules (40 CFR Parts 70 and 71). The revised CAM rule would define when periodic monitoring must be created for sources to use in determining compliance status relative to applicable requirements (e.g., emissions limits). The revisions would specify criteria and procedures that source owners must address in creating effective periodic monitoring.
  • Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NSR): Reasonable Possibility in Recordkeeping (RIN: 2060-AP71) The EPA is convening a proceeding for reconsideration of a final rule published in the Federal Register on December 21, 2007 (72 FR 62607), 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). The remand was to clarify the “reasonable possibility” recordkeeping and reporting standard under the New Source Review (NSR) program. A proposed rule is planned for September 2011 with a final rule promulgated in June 2012.
  • Reconsideration of Final National Emission Standards for Hazardous Air Pollutants for Reciprocating Internal Combustion Engines-Compression Ignition (RIN: 2060-AQ58) The EPA is planning a November 2011 proposed rule in response to the petition for reconsideration of the March 3, 2010 final rule establishing standards for emissions of hazardous air pollutants from existing stationary diesel engines located at major and area sources. The final rule revised the requirements for emergency stationary engines to allow operation for up to 15 hours per year in emergency demand response, if needed to maintain stability in the grid, as determined by the regional transmission organization.
  • Greenhouse Gas Emission Reporting The EPA is planning several proposed rules regarding the mandatory greenhouse gas emission reporting rules (40 CFR Part 98), including a re-proposal of the Confidential Business Information (CBI) determinations for certain source categories in the reporting program that were finalized in the fall of 2010 (RIN: 2060-AQ70); a proposal related to the confidentiality determinations for data reporting elements categorized in the “Inputs to Equation” category (RIN: 2060-AQ81); and technical corrections and other minor amendments to requirements of the reporting rules that were finalized in 2010 (RIN: 2060-AQ85).
  • Greenhouse Gas New Source Performance Standard for Electric Utility Steam-Generating Units (RIN: 2060-AQ91) The EPA plans to publish a proposed rule in August 2011 to establish a greenhouse gas (GHG) standard for new, modified, and reconstructed facilities. It will also establish requirements that will include emissions guidelines for GHGs from existing EGUs.
  • Transport Rule (CAIR Replacement Rule) (RIN: 2060-AP50) The EPA is planning to promulgate a final rule in July 2011 to replace the Clean Air Interstate Rule, commonly known as CAIR (70 FR 25162). This action would fulfill the EPA’s obligation to develop a rule consistent with the July 11, 2008 and December 23, 2008 D.C. Court decisions.
 
Toxic Substances Control Act
 
  • Electronic Reporting for Health and Safety Data Under the Toxic Substances Control Act (TSCA) (RIN: 2070-AJ75) In October 2011, the EPA is planning to propose replacing paper reporting with electronic reporting of the information that must be submitted under the Toxics Substance Control Act (TSCA) Sections 4 (including enforceable consent agreements (ECAs), 8(a) Preliminary Assessment Information Rule (PAIR), 8(d), and 8(e). In addition, the EPA would propose revising the reporting regulations at 40 CFR 720, 723, and 725 to replace paper with electronic reporting for Notices of Commencement of Manufacture of Import (NOCs) and support documents (e.g., correspondence, amendments, test data) relating to TSCA Section 5 notices submitted to EPA prior to April 6, 2010, the effective date of the electronic-PMN final rule.
  • TSCA Inventory Update Reporting Modifications (RIN: 2070-AJ43) The EPA is planning to finalize a rule to require electronic reporting of the 40 CFR Part 710 Inventory Update Reporting (IUR) information and to modify IUR reporting requirements, including certain circumstances that trigger reporting, the specific data to be reported, the reporting standard for processing and use information, and Confidential Business Information (CBI) reporting procedures.
 
Resource Conservation and Recovery Act
 
  • Land Disposal Restrictions: Revision of the Treatment Standard for Carbamates (RIN: 2050-AG65) The Environmental Protection Agency is considering revising the Land Disposal Restrictions (LDR) treatment standards for hazardous wastes from the production of carbamates and carbamate commercial chemical products that become hazardous wastes when they are discarded or intended to be discarded. There may be no analytical standards available with which to measure compliance with the LDR requirements. Currently under the LDR program, most carbamate wastes must be treated to meet numeric concentration limits before the wastes can be land disposed. The lack of analytical standards makes it impossible to measure whether the numeric concentration limits have been met. Therefore, EPA is considering providing as an alternative standard the use of the best demonstrated available technologies for treating these wastes. This will provide significant treatment to minimize threats to human health and the environment while avoiding the problems that result from the lack of analytical standards to determine if the numeric concentration limits have been met. In addition, EPA is considering removing hazardous carbamate wastes from the table of Universal Treatment Standards at 40 CFR 268.48. By doing so, these wastes would not be classified as underlying hazardous constituents that require treatment to meet numeric concentration limits in wastes that display the characteristic of ignitability, reactivity, corrosivity or toxicity at the point of generation. This overall action would allow hazardous waste management facilities to certify that wastes have been treated in compliance with applicable LDR requirements. These facilities face potential curtailment of operations when they are unable to demonstrate waste and treatment residual content through analytical testing.
  • Hazardous Waste Technical Corrections and Clarifications Rule (RIN: 2050-AG52) On March 18, 2010, EPA published a Direct Final Rule (Hazardous Waste Technical Corrections and Clarifications Rule) that promulgated a number of amendments to the hazardous waste regulations for hazardous waste identification, manifesting, the generator requirements, as well as changes to the hazardous waste permit and interim status standards. These changes corrected existing errors in the hazardous waste regulations that have 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 which were withdrawn (June 4, 2010) because adverse comments were received. The planned final rule will address the six withdrawn amendments by responding to the adverse comments received and finalizing the appropriate changes.
  • Episodic Generation Rulemaking (RIN: 2050-AG51) EPA is considering the development of a specific regulation associated with facilities that, as a result of certain events, find themselves moving occasionally or “episodically” into a higher hazardous waste generator status. Examples of events that may temporarily affect a facility’s generator regulatory status include construction and demolition debris, equipment maintenance during a plant shut down, removal of post-shelf life inventory, tank cleanouts, and process upsets.
  • Hazardous Waste Manifest Revisions–Standards and Procedures for Electronic Manifests (RIN: 2050-AG20) This action is aimed at finalizing the development of EPA’s Resource Conservation and Recovery Act (RCRA) regulatory standards and procedures that will govern the initiation, signing, transmittal, and retention of hazardous waste manifests using electronic documents and systems. EPA proposed electronic manifest standards in May 2001 as part of a more general manifest revision action that also addressed standardizing the paper manifest form’s data elements and procedures (EPA Form 8700-22). The manifest form revisions were decoupled from action on the electronic manifest, and the Final Form Revisions Rule was published in the Federal Register on March 4, 2005. The May 2001 electronic manifest proposed rule was a standards-based decentralized approach under which EPA would establish and maintain the standards that would guide the development of electronic manifest systems by private sector entities that chose to participate in the system. However, since publication of the May 2001 proposed rule, EPA found that there is a broad consensus in favor of a single national “eManifest” system sponsored by EPA, rather than assorted de-centralized commercial systems. Subsequently, in May 2004, EPA conducted a manifest stakeholder meeting to collect additional stakeholder views on the future direction of eManifest. Based on public comment on the 2001 proposed electronic standards and stakeholder feedback at the May 2004 meeting, EPA published a Notice of Data Availability (NODA) on April 18, 2006 announcing EPA’s preferred approach to develop a centralized web-based eManifest system to be hosted on EPA’s Central Data Exchange (CDX) computer hub. However, EPA’s ability to publish this final rule will depend on the passing of legislation that would provide EPA with authority to collect and retain user charges for the payment of the development and operation costs related to the eManifest system. This remains a long-term action with no final rule expected this year.
  • Amendment to the Universal Waste Rule: Addition of Pharmaceuticals (RIN: 2050-AG39) On December 2, 2008, EPA proposed to add hazardous pharmaceutical wastes to the Federal universal waste program. The universal waste regulations streamline the collection requirements for specified hazardous wastes over current Resource Conservation and Recovery Act (RCRA) hazardous waste requirements. Even if included under the Universal Waste program, pharmaceutical universal wastes will still need to be sent to destination facilities that must comply with the applicable requirements for treatment, storage and disposal facilities under the full hazardous waste regulations. Finally, because this rule is less stringent than current RCRA hazardous waste regulations, authorized states are not required to modify their programs to adopt this regulation, if finalized. This remains a long-term action with no final rule expected this year.
  • Modifications to RCRA Rules Associated With Solvent-Contaminated Industrial Wipes (2050-AE51) In 2003, EPA proposed to modify the 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. Based on comments received on the proposal, EPA revised its risk analysis used to evaluate the risks to human health and the environment if solvent-contaminated wipes or laundry sludge are disposed of in a municipal solid waste landfill. A Notice of Data Availability was published in the Federal Register to allow the public the opportunity to comment on the revised risk analysis. 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. A final rule is planned for July 2012.