Recent Developments (Updated May 11, 2011)

DEC Issues PBS Inspection Handbook

Following a public comment period, the New York State Department of Environmental Conservation (DEC) issued Program Policy DER-25, Petroleum Bulk Storage (PBS) Inspection Handbook to provide guidance to Department staff on conducting inspections to determine compliance with New York’s PBS laws and regulations and federal underground storage tank regulations. The Handbook is organized into three main sections: (1) an introduction addressing the purpose/organization of the Handbook, applicability, pre-inspection tasks, and inspection followup; (2) a summary of inspection requirements for underground tanks; and (3) a summary of inspection requirements for aboveground tanks. The policy provides a comprehensive overview of state and federal petroleum storage requirements organized by subject. For each subject, the program policy discusses applicability and regulatory requirements and describes the inspector’s tasks with respect to each inspection item (i.e., what records to review, equipment to inspect, etc.). Where appropriate, the policy includes “curative measures” to be implemented by the owner/operator when the inspection reveals noncompliance. The policy includes references linking particular inspection items to DEC’s standard PBS inspection form. The program policy can be found on DEC’s website at: www.dec.ny.gov/regulations/2387.html.

EPA Proposes Hazardous Air Pollutant Standards for Power Plants

More than 10 years after adding power plants to the list of sources subject to regulation under Section 112 of the Clean Air Act (CAA), the U.S. Environmental Protection Agency (EPA) recently proposed National Emission Standards for Hazardous Air Pollutants (NESHAP) for coal and oil-fired electric utility steam generating units (EGUs). After declaring in 2000 that it was “necessary and appropriate” to regulate hazardous air pollutants (HAPs) from coal and oil-fired EGUs under CAA § 112, EPA rescinded the finding and adopted a mercury cap-and-trade program and other provisions in place of the NESHAP. A federal appeals court later vacated the alternative program, compelling EPA to proceed with the NESHAP. With the recent rulemaking, EPA confirmed its 2000 finding that it is necessary and appropriate to regulate emissions of mercury and other HAPs from EGUs under CAA § 112 and proposed maximum achievable control technology standards for coal and oil-fired power plants that include: emission limitations for various HAPs that differ depending on the type of fuel burned and whether the unit is new or existing; work practice standards to ensure optimal combustion and prevent dioxin/furan emissions; and performance testing, monitoring, notification, recordkeeping and reporting requirements. The proposed rule can be found in the May 3, 2011 Federal Register at: www.gpo.gov/fdsys.

EPA and Army Corps Publish Jurisdictional Guidance for Comment

EPA and the U.S. Army Corps of Engineers recently made available for comment draft guidance describing how the agencies will identify waters protected by the Clean Water Act (CWA) and implement recent U.S. Supreme Court decisions on CWA jurisdiction. Over the years, many questions have arisen about the scope of the term “waters of the United States” under the CWA. These questions accelerated in the wake of the U.S. Supreme Court’s decision in Rapanos v. United States, which contained five separate opinions on the question of CWA jurisidiction over wetlands adjacent to tributaries with no single opinion commanding a majority. The recent joint guidance identifies three basic categories of water bodies for purposes of CWA jurisdiction, lists waters within each category and provides a factual and legal basis for its decision regarding CWA jurisdiction with respect to different types of waters. Notice of the joint guidance can be found in the May 2, 2011 Federal Register at: www.gpo.gov/fdsys.

EPA Publishes Results of NESHAP Residual Risk/Technology Review

EPA revised the following National Emission Standards for Hazardous Air Pollutants following the residual risk and periodic technology review required by CAA § 112: group I polymers and resins; marine tank vessel loading operations; pharmaceuticals production; and printing and publishing industry. While EPA found that no further emission reductions are required to address residual risk associated with sources in these categories, EPA added emission limits for operations not currently regulated under the group I polymers and resins source category; it also revised the marine tank vessel loading standard to add technology-based requirements for certain small sources. In addition, EPA replaced existing exemptions for exceedances occurring during startup, shutdown and malfunctions with an affirmative defense applicable to malfunctions only. The rule can be found in the April 21, 2011 Federal Register at: www.gpo.gov/fdsys.

Other major environmental legal developments:

Federal

• EPA published its final policy assessment in conjunction with the review of the existing national ambient air quality standards (NAAQS) for particulate matter (PM). Among other things, the assessment recommended that EPA staff revise the primary (health-based) annual PM NAAQS downward and consider adopting a new secondary standard based on visibility impacts.
• EPA simplified and streamlined its procedure for obtaining approval of clean alternative fuel conversion systems for motor vehicles and engines, with the goal of expanding available transportation fuel choices while ensuring that changes to engine configurations do not violate the CAA prohibition against engine tampering.
• EPA revised the spill prevention, control and countermeasures (SPCC) plan rule to exempt milk and milk product storage tanks and containers after finding that milk storage is already extensively regulated.
• EPA proposed controversial technology-based standards for existing power generating and manufacturing facilities that withdraw large quantities of water for cooling purposes. These best technology available (BTA) standards are designed to minimize the impingement and entrainment of fish in cooling water intake structures.
• EPA published a strategy, entitled Coming Together for Clean Water: EPA’s Strategy for Achieving Clean Water, intended to further its priority of protecting America’s waters by identifying current clean water challenges, outlining a new path for achieving clean water, and summarizing key strategies/actions for strengthening clean water protections.
• EPA announced a green infrastructure initiative designed to reduce stormwater runoff through implementation of measures such as green roofs, permeable materials, and other measures designed to treat rain where it falls and keep it from entering sewer systems.
• The Occupational Safety and Health Administration issued guidance designed to help employers prevent fall-related injuries and fatalities associated with residential construction.

New York State

• DEC adopted an emergency rule extending the deadline for dealers to sell non-certified outdoor wood boilers (OWBs) to July 14, 2011 after concluding that the initial sell-through date of April 14, 2011 was unrealistic because it failed to take into consideration the difficulties associated with installing OWBs during the winter.

For information about these and other recent developments, download the PDF for May 2011.

April 2011 (PDF)
March 2011 (PDF)
January 2011 (PDF)
November 2010 (PDF)
October 2010 (PDF)