Download the full report for November 2011 (pdf)

Recent Developments (Updated November 4, 2011)

DEC Seeks Input on Changes to Air Permit Rule

The New York State Department of Environmental Conservation (DEC) is seeking input from stakeholders on planned revisions to New York’s air permitting regulations, which have not been significantly revised since 1996 when DEC adopted changes required to implement the Clean Air Act’s Title V operating permit requirements. Major changes to 6 NYCRR Part 201 under consideration include: (1) clarifying the procedures for obtaining approval of physical changes at existing Title V facilities; (2) revising the provision requiring new sources to obtain state facility permits because they trigger a New Source Performance Standard or emit a hazardous air pollutant; (3) revising the list of exempt and trivial activities, including the exemption for temporary emission sources; (4) adding a permit term for registrations and state facility permits; and (5) requiring certain facilities that emit specified persistent, bioaccumulative and toxic compounds above threshold levels to obtain a state facility permit. A stakeholder meeting on the changes is scheduled for November 14, 2011 at DEC’s offices in Albany; DEC is seeking input from the public before formally proposing rule changes in 2012.

EPA Issues Pair of CERCLA Guidance Documents

The U.S. Environmental Protection Agency (EPA) recently issued a pair of Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) guidance memoranda. The first memorandum explains how to conduct five-year reviews of the institutional control (IC) component of remedies. Examples of ICs include easements, restrictive covenants, zoning and building codes, and other non-engineered mechanisms designed to minimize the potential for human exposure to contaminants at remedial sites. The second memorandum provides guidance on deciding whether an entity is “affiliated” with a potentially responsible party and so ineligible for the exemption from liability for bona fide prospective purchasers or contiguous property owners. The IC guidance can be found on EPA’s website at: www.epa.gov/superfund/cleanup/postconstruction/641333.pdf; the affiliation guidance can be found at: cfpub.epa.gov/compliance/resources/policies/cleanup/superfund by clicking on “Bona Fide Prospective Purchasers”.

OSHA Issues Health and Safety Guidance Documents

The Occupational Safety and Health Administration (OSHA) announced the publication of numerous documents explaining workers’ and employers’ rights and obligations under various health and safety programs, including: (1) a small entity compliance guide for the OSHA respiratory protection standard; (2) guidance explaining an employer’s rights and responsibilities following an OSHA inspection; (3) a laboratory safety guidance targeted at individuals with primary responsibility for maintaining the safety of laboratories; and (4) quick cards and other documents summarizing key information for workers relating to confined space entry, working in trenches, and preventing nail gun injuries and heat stress. These documents can be accessed via an October 17, 2011 press release announcing the publications, which can be found at:  www.osha.gov/whatsnew.html.

Other Regulatory Developments

Federal

• EPA published an advanced notice of proposed rulemaking seeking comment on a proposed approach to prioritizing the eight-year periodic review of New Source Performance Standards (NSPS) required by the Clean Air Act.
• EPA published a memorandum explaining its plan for implementing the 2008 rule reducing the eight-hour ozone national ambient air quality standards.
• EPA proposed to revise its NSPS for nitric acid plants, including setting a stricter standard for nitrogen oxide emissions.
• EPA adopted an interim final rule extending the deadline for farms to amend and implement their spill prevention, control, and countermeasure plans from November 10, 2011 to May 10, 2013.
• EPA presented its 2010 Effluent Guidelines Program Plan announcing its intent to adopt technology-based effluent guidelines for wastewater discharges associated with shale gas extraction, coalbed methane extraction, and use of dental amalgam by dentists.
• After a 17-year administrative stay, EPA announced that it would be requiring submission of Toxic Release Inventory reports for hydrogen sulfide, which is commonly found in natural gas and biogas.

New York State

• DEC issued a letter to the Business Council of New York State clarifying that it was not imposing two fees for hazardous waste generated in 2010 during the transition to the hazardous waste fee program enacted by the New York legislature early in 2010.
• DEC issued its SPDES General Permit for Point Source Discharges to Surface Waters of New York from Pesticide Applications, excluding from the requirement to obtain coverage certain aquatic pesticide applications to small ponds (one acre or less in size).