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Environmental Regulatory Update – December 2016

Download the full report for December 9, 2016 (pdf)

Recent Developments (Updated December 9, 2016)

DEC Adopts Distributed Generation Regulation

The New York State Department of Environmental Conservation (DEC) adopted an air emission rule for distributed generation (DG) sources—stationary reciprocating or rotary internal combustion engines that feed the distribution grid or produce electricity for use at host facilities or both. The rule, which is set forth at 6 NYCRR Part 222, applies to owners/operators of DG sources at non-major facilities that have maximum mechanical output ratings of 200 horsepower (hp) or more in the New York City metropolitan area or 400 hp or more elsewhere. It distinguishes between emergency generators and so-called “economic dispatch sources,” i.e., DG sources used to reduce energy costs or ensure a reliable energy supply. Economic dispatch sources covered by the rule must meet specific nitrogen oxide emission standards and, in some cases, particulate matter standards. Sources that cannot meet the standards have five alternative compliance options. Owners/operators of emergency generators must comply with more limited maintenance (i.e., tune-up) and recordkeeping requirements. The rule, which contains extremely short compliance deadlines, can be found on DEC’s website at: www.dec.ny.gov/regulations/104487.html.

EPA Overhauls Hazardous Waste Generator Rules

For the first time in several decades, the U.S. Environmental Protection Agency (EPA) has adopted major changes to its hazardous waste generators rules to update, simplify and correct the regulations and address regulatory gaps. Major changes include: relocating  generator requirements to a single section; replacing the term “conditionally exempt small quantity generator” with “very small quantity generator” (VSQG) and adding/revising other definitions; clarifying/expanding the rules governing hazardous waste determinations; establishing provisions to address episodic waste generation activities; requiring small quantity generators and large quantity generators (LQGs) to renotify EPA concerning their waste activities every four years; allowing VSQGs to send hazardous waste to LQG facilities under their control; revising waste accumulation/marking rules; and updating preparedness/prevention requirements. The revisions can be found in the November 28, 2016 Federal Register at: www.gpo.gov/fdsys.

Major Revisions to Air Conditioning and Refrigeration Repair Rules Adopted

EPA adopted major changes to its air conditioning and refrigeration repair rules under Section 608 of the Clean Air Act to update the requirements for minimizing emissions of ozone-depleting substances (ODS) and expand them to include ODS substitutes, many of which have a high global warming potential (GWP) and so contribute to climate change. Changes include: specifically revising the regulations to include non-exempt ODS substitutes; lowering the leak threshold rate that triggers the need for equipment repairs; requiring regular leak inspections for certain larger equipment; and expanding recordkeeping requirements. The rulemaking is part of a larger effort to stem the increase in the use of hydrofluorocarbons and other ODS substitutes with a high GWP; it can be found in the November 18, 2016 Federal Register at: www.gpo.gov/fdsys.

DEC Proposes New MS4 General Permit

DEC proposed a new State Pollutant Discharge Elimination System (SPDES) General Permit for Stormwater Discharges from Municipal Separate Storm Sewer Systems (MS4s) to replace its existing general permit in the wake of a federal court decision which found that the existing federal MS4 program, upon which the State program is based, did not provide for adequate public notice and comment or ensure adequate reductions in pollutants. The new, more prescriptive proposed permit requires all covered traditional and non-traditional MS4s to seek coverage under the general permit, prepare and implement a written stormwater management program (SWMP), and designate a SWMP coordinator to oversee the program, among other requirements. It also contains detailed provisions governing implementation of six categories of minimum control measures required to be included in each SWMP as well as special requirements applicable to permittees that discharge to impaired waters. The draft permit and related documents can be found on DEC’s website at: www.dec.ny.gov/chemical/41392.html.

Other Recent Developments

Federal                                                                

  • AIR: EPA proposed a rule establishing nonattainment area classification thresholds and implementation requirements for the 2015 ozone national ambient air quality standards (NAAQS) that relies largely on the area classification framework and state implementation plan requirements applicable to the 2008 ozone NAAQS.
  • HAZARDOUS WASTE: EPA amended the hazardous waste regulations relating to the import and export of hazardous waste from and into the United States to improve consistency among procedures and facilitate electronic documentation.
  • WATER: EPA published a final list of contaminants to be studied for purposes of deciding whether to set standards under the Safe Drinking Water Act (SDWA), which includes 97 chemical groups and 12 microbial contaminants.
  • WATER: EPA issued a Drinking Water Action Plan, identifying priority areas and action items for improving the safety and reliability of the nation’s drinking water system.
  • OCCUPATIONAL SAFETY AND HEALTH: The Occupational Safety and Health Administration (OSHA) overhauled its standards for walking-working surfaces and fall protection equipment, a rulemaking that covers floors, ladders, stairways, runways, dockboards, roofs, scaffolds and elevated work surfaces and walkways.
  • OCCUPATIONAL SAFETY AND HEALTH: OSHA issued a Small Entity Compliance Guide for the Respirable Crystalline Silica Standard for Construction that describes each provision of the new rule and provides guidance to help employers understand the requirements of the standard.

New York State

  • BULK STORAGE/REMEDIATION: DEC adopted a fourth emergency rule adding perfluorooctanoic acid and related substances to the list of hazardous substances regulated under the chemical bulk storage program, allowing DEC to regulate the bulk storage of these substances and remediate contaminated sites under New York’s Superfund program.
  • WATER: DEC revised its SPDES regulations to implement New York’s Sewage Pollution Right-to-Know Act, which requires publicly owned treatment works and publicly owned sewer systems to report discharges of untreated or partially treated sewage to health departments, local governments and the public in accordance with a specified schedule.
  • WATER: DEC revised its SPDES General Permit for Point Source Discharges to Surface Waters of New York from Pesticide Applications which applies to operators engaged in the application of pesticides labeled for aquatic uses to, in or over surface waters.