NEW REGULATORY DEVELOPMENTS

Federal

• Notice of Availability of the Environmental Protection Agency’s Two Updated Chapters in the EPA Air Pollution Control Cost Manual
  EPA is making two finalized chapters of the EPA Air Pollution Control Cost Manual available to the public.  These chapters are on selective non-catalytic reduction and selective catalytic reduction.  In addition, a cost calculation is provided electronically for each chapter.  Click here for a link to the final chapters and cost calculation documents.
• Decision Not to Regulate Forest Road Discharges Under the Clean Water Act, 40 C.F.R. Chapter I
  EPA has provided notice of its decision that, at this time, no additional regulations are needed to address stormwater discharges from forest roads under Section 402(p)(6) of the Clean Water Act.  This decision is a response to the 9th Circuit’s remand in Environmental Defense Center, Inc. v. U.S. EPA, 344 F.2d 832 (9th Cir. 2003), which required EPA to consider whether the Clean Water Act required the EPA to regulate stormwater discharges from forest roads.
• Civil Monetary Penalty Inflation Adjustment Rule, 40 C.F.R. Part 19
  EPA has issued an interim final rule to increase the level of statutory civil monetary penalty amounts for the statutes that EPA administers.  These upward adjustments are being made to reflect inflation, pursuant to the requirements of the Federal Civil Penalties Inflation Adjustment Act of 1990.  According to EPA, this rule will not necessarily revise the penalty amounts that EPA may choose to seek in a particular case.  The rule took effect August 1, 2016.
• Rescission of Preconstruction Permits Issued Under the Clean Air Act, 40 C.F.R. Parts 49, 52
  EPA is proposing to revise its federal Prevention of Significant Deterioration regulations to remove a date restriction from the current permit rescission provision.  Going forward, the rescission provision will apply to all sources, and not just those with a permit based on rules in effect on or before July 30, 1987.  The proposed rule is not intended to alter the circumstances under which a New Source Review permit may be rescinded.  The proposed amendments would also add a permit rescission provision in the regulations dealing with major sources in nonattainment areas of Indian country.  Comments were due July 14, 2016.
• Protection of Visibility: Amendments to Requirements for State Plans, 40 C.F.R. Parts 51, 52
  EPA is proposing amendments to the Clean Air Act’s regulatory requirements for state plans for protection of visibility in mandatory Class I federal areas.  Among other things, the amendments would change the way in which some days during each year are to be elected for purposes of tracking progress towards natural visibility conditions to account for events such as wildfires, change aspects of the requirements for the content of progress reports, and add a requirement for states to consult with Federal Land Managers earlier in the development of state plans.  The revisions will also revise the due dates for progress reports and remove the requirement for progress reports to be SIP revisions.  The comment deadline was extended to August 10, 2016.
• Air Plan Approval; Maine; Control of Volatile Organic Compound Emissions From Fiberglass Boat Manufacturing and Surface Coating Facilities, 40 C.F.R. Part 52
  EPA has issued a direct final rule approving State Implementation Plan revisions submitted by the State of Maine.  The revisions establish Reasonably Available Control Technology requirements for reducing volatile organic compound emissions from fiberglass boat manufacturing and surface coating operations.  The rule took effect July 25, 2016.
• Air Plan Approval; Massachusetts; Infrastructure State Implementation Plan Requirements, 40 C.F.R. Part 52
  EPA is proposing to approve most elements of Massachusetts’ State Implementation Plan (SIP) submissions regarding infrastructure requirements of the Clean Air Act for the 1997 ozone, 2008 lead, 2008 ozone, 2010 nitrogen dioxide, and 2010 sulfur dioxide National Ambient Air Quality Standards.  EPA is also proposing to conditionally approve three aspects of Massachusetts’s submittals, as well as proposing certain findings of failure to submit.  Finally, EPA is proposing to remove 40 C.F.R. 52.1160 (requirements for SIP revisions relating to new motor vehicles) due to EPA’s belief that these provisions are legally obsolete. Comments are due August 19, 2016.
• Air Plan Approval; New Hampshire; Ozone Maintenance Plan, 40 C.F.R. Part 52
  EPA is proposing to approve a State Implementation Plan (SIP) submitted by the State of New Hampshire.  This SIP contains an ozone maintenance plan for New Hampshire’s former 1-hour ozone nonattainment areas.  Comments were due June 22, 2016.
• Air Plan Approval; New Hampshire; Regional Haze 5-Year Report, 40 C.F.R. Part 52
  EPA is proposing to approve a State Implementation Plan revision submitted by New Hampshire on December 16, 2014.  The revision addresses requirements of the Clean Air Act and EPA’s requirement for states to submit periodic reports describing progress toward reasonable progress goals established for regional haze.  The submittal also includes a revised regulation that reduces the total suspended particulate emission limit for New Hampshire’s only sole Tangential-Firing, Dry-Bottom Boiler.  Comments are due August 18, 2016.
• Air Plan Approval; New Hampshire; Infrastructure Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality Standards, 40 C.F.R. Part 52
  EPA has issued a final rule that approves elements of State Implementation Plan submissions from New Hampshire.  These submissions are related to the infrastructure requirements of the Clean Air Act for the 2010 sulfur dioxide National Ambient Air Quality Standards.  The new rule also updates the classification for two of New Hampshire’s air quality control regions for sulfur dioxide based on recent air quality monitoring data collected by New Hampshire.  Finally, the rule conditionally approves certain elements of New Hampshire’s submittal that are related to prevention of significant deterioration requirements.  The rule takes effect August 8, 2016.
• Clean Energy Incentive Program Design Details, 40 C.F.R. Parts 60, 62
  EPA is proposing design details for the Clean Energy Incentive Program.  This is a program that states have the option to adopt if they wish to incentivize certain early emission reduction projects under the Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units.  This action is part of the framework of the Obama Administration’s Clean Power Plan.  Comments are due August 29, 2016.
• National Emission Standards for Hazardous Air Pollutants: Site Remediation, 40 C.F.R. Part 63
  EPA is proposing to amend the National Emission Standards for Hazardous Air Pollutants (NESHAP): Site Remediation Rule. The revisions will remove exemptions for site remediation activities performed under the authority of CERCLA and for site remediation activities performed under RCRA corrective action order or other required RCRA order.  The revisions will also remove the applicability requirement that site remediations be co-located with at least one other stationary source regulated by another NESHAP.  Comments were due July 27, 2016.
• Removal of Title V Emergency Affirmative Defense Provisions from State Operating Permit Programs and Federal Operating Permit Program, 40 C.F.R. Parts 70, 71
  EPA is proposing to remove the affirmative defense provisions found in the regulations for state and federal operating permit programs.  The provisions establish an affirmative defense that sources can assert in civil enforcement cases when noncompliance with certain emission limitations in operating permits occurs because of qualifying “emergency” circumstances.  According to EPA, the provisions are inconsistent with the enforcement structure of the Clean Air Act and recent court decisions from the 10th Circuit and D.C. Circuit.  Comments are due August 15, 2016.
• National Pollutant Discharge Elimination System: Applications and Program Updates, 40 C.F.R. Parts 122, 123, 124, 125
  EPA is proposing revisions to its National Pollutant Discharge Elimination System regulations.  The proposed revisions, though narrowly targeted, cover a number of categories including permit applications, the water quality based permitting process, permit objection, documentation and process efficiencies, the vessels exclusion and the Section 401 certification process.  According to EPA, the revisions will further align the NPDES regulations with statutory requirements from the 1987 Clean Water Act Amendments and more recent case law requirements.  The comment deadline was extended to August 2, 2016.
• Eagle Permits; Revisions to Regulations for Eagle Incidental Take and Take of Eagle Nests; 50 C.F.R. Parts 13, 22
  The U.S. Fish and Wildlife Service is proposing revisions to its eagle nonpurposeful take permit regulations and eagle nest take regulations.  These revisions include, but are not limited to, changes to permit issuance criteria and duration, new compensatory mitigation standards, and new criteria for eagle nest removal permits.  Comments were due July 5, 2016.
• Designation of Critical Habitat for the Gulf of Maine, New York Bight, and Chesapeake Bay Distinct Population Segments of Atlantic Sturgeon, 50 C.F.R. Part 226
  The National Marine Fisheries Service is proposing to designate critical habitat for the Gulf of Maine, New York Bight, and Chesapeake Bay Distinct Population Segments (DPSs) of Atlantic sturgeon.  The areas proposed for designation include approximately 244 kilometers (152 miles) of aquatic habitat in rivers in Maine, New Hampshire, and Massachusetts for the Gulf of Maine DPS, approximately 547 kilometers (340 miles) of aquatic habitat in rivers in Connecticut, Massachusetts, New York, New Jersey, Pennsylvania, and Delaware for the New York Bight DPS, and approximately 729 kilometers (453 miles) of aquatic habitat in rivers in Maryland, Virginia, and the District of Columbia for the Chesapeake Bay DPS of Atlantic Sturgeon.  Comments are due September 1, 2016.

Maine

• Draft Maine Erosion and Sediment Control Best Management Practices, Manual for Designers and Engineers
  DEP is reviewing public comments on its draft “Maine Erosion and Sediment Control Best Management Practices (BMPs), Manual for Designers and Engineers.”  The purpose of this handbook is to help land developers, consultants, and contractors use the appropriate erosion and sedimentation control BMPs whenever disturbing soil or removing a natural ground cover.  Comments were due July 22, 2016.
• Lead Management Regulations, DEP Ch. 424
  DEP is proposing to repeal and replace its existing Ch. 424, Lead Management Regulations. Proposed changes include updating and reorganizing abatement work practices and updating the inspection protocol by adding an appendix on conducting lead inspections.  With these changes, DEP is aiming to harmonize the rule with EPA/HUD requirements for lead abatement professionals.  Comments were due July 8, 2016.
• Changes to Required Road Setbacks and Accessory Structure Locations, LUPC Ch. 10
  The Maine Land Use Planning Commission (LUPC) is proposing to update its rules to alter certain setback requirements.  These changes include (1) reducing the distance structures must be set back from the road to 30 feet in Residential Development and General Development subdistricts along with corresponding reductions in vegetative buffers;  (2) reducing the road setback requirement for residential structures on State and Federal Routes from 75 feet to either 50 or 30 feet, depending on the subdistrict; (3) the allowance of flexible road setbacks of no less than 20 feet from interior roads for non-residential development on a case-by-case basis according to performance criteria; (4) permission, under certain conditions, for residential accessory structures to be placed on new or existing, nonconforming lots across the road from the residence; (5) edits to the accessory structure by standard use listing to clarify that accessory structures must be located in subdistricts which allow their associated principal use; and (6) changes to the subdistrict use listings which will clarify that accessory structures may be allowed in LUPC jurisdiction by permit or special exception.  Comments were due June 10, 2016, and rebuttal comments were due June 20, 2016.

Massachusetts

• Proposed Changes to Compliance Certification Requirements for Photo Processors, Printers, and Dentists, 310 C.M.R. 7.26, 310 C.M.R. 70.00, 310 C.M.R. 71.00, 310 C.M.R. 73.00, 310 C.M.R. 4.00
  MassDEP is proposing a number of changes to several regulations that govern its Environmental Results Program.  This program was developed to provide an alternative to MassDEP’s permitting system and to provide education for small businesses in certain industries that handle materials which involve significant potential public health and safety risks.  The proposed revisions would, in MassDEP’s view, simplify the certification requirements for photo processors, dentists, and printers.  The revisions will also eliminate the need for dentists to submit an additional certification for industrial wastewater holding tanks.  Comments are due August 11, 2016.

New Hampshire

• Ambient Groundwater Quality Standards for Perfluorooctanoic Acid and Perfluorooctane, DES Env-Or 603.03
  DES is proposing to readopt emergency rules that implement Emergency Ambient Groundwater Quality Standards for perfluorooctanoic and perfluorooctane sulfonate based on health advisory levels established by the EPA.  A public hearing is scheduled for August 10, 2016, and comments are due August 19, 2016.
• Shoreland Protection, DES Env-Wq 1400
  DES is proposing to readopt and amend its rules related to the Shoreland Water Quality Protection Act.  These rules establish standards for activities within the protected shoreland, provide application forms, specify required application materials, establish waiver processes, and establish standards for revegetation plans.  As part of the readoption, several revisions are proposed, including the creation of a permit by notification process.  Comments are due August 8, 2016.
• Surface Water Quality Standards, DES Env-Wq 1700
  DES is proposing to readopt and amend its rules related to surface water quality.  As part of the readoption, a number of revisions are being proposed.  These include, but are not limited to, the following: (1) addition of descriptions of designated uses; (2) changes to numeric criteria for 100 toxic substances, including 75 more stringent criteria, 11 less stringent criteria, and 14 mixed criteria; (3) changing the minimum hardness on which freshwater aquatic life criteria for hardness-dependent metals are based from 25 to 20 mg/L; and (4) addition of a requirement for DES to conduct a non-adjudicative public hearing for any proposed change in designated uses.  Comments were due July 22, 2016.

STATUS OF PREVIOUSLY REPORTED RULES
COMPLIANCE DEADLINES

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