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Environmental Regulatory Update – April 2017

Download the full report for April 7, 2017 (pdf)

Recent Developments (Updated April 7, 2017)

Executive Order Rolls Back Obama Administration Climate Change Initiatives

With the purported goal of promoting clean and safe development of the country’s energy resources while avoiding unnecessary regulatory burdens, President Donald Trump issued an executive order that seeks to roll back certain Obama administration climate change initiatives including the Clean Power Plan (CPP), Obama’s program for reducing greenhouse gas (GHG) emissions from existing power plants. The controversial executive order: rescinds Obama administration climate change-related executive orders, presidential memoranda, and reports; rescinds guidance on addressing GHG emissions and the effects of climate change when conducting reviews under the National Environmental Policy Act; requires EPA to review the CPP and related rulemakings for consistency with the executive order and, if appropriate, possible suspension, rescission or revision; orders the disbanding of the Interagency Working Group on Social Cost of Greenhouse Gases; and proposes to review/rescind various climate change-related measures limiting or regulating coal, oil and natural gas production. Because changes to the CPP and related rules require public notice and comment, the review process will likely take many months, if not years. The practical impact of the delay with respect to the CPP is minimal because the U.S. Supreme Court stayed implementation pending judicial review. The executive order can be found at: www.whitehouse.gov/briefing-room/presidential-actions.

DEC Proposes Changes to Radioactive Materials Rule

The New York State Department of Environmental Conservation (DEC) proposed to revise its regulations governing the disposal and release of radioactive materials to incorporate changes to federal rules, simplify and update language, and add requirements that are already being implemented via permit. The radioactive materials regulations, set forth at 6 NYCRR Part 380, contain limits on public exposure to radioactive materials, require parties to obtain permits for most releases of radioactive materials, and restrict disposal of the materials. With the recent rulemaking, DEC is proposing to: clarify the scope of the rule, including expanding it to cover the use of licensed radioactive materials in the environment (e.g., environmental studies); adding, revising and deleting definitions; clarifying what types of activities require a permit as well as the content of permit applications; limiting airborne emissions to 10 millirems consistent with federal regulations and current DEC permit conditions; lowering the thresholds for reporting uncontrolled releases or events and specifying the content and time frames for these reports; and adding isotopes N-13 and O-15 to the tables of concentrations. The proposal can be found at: www.dec.ny.gov/regulations/106149.html.

Updated MSGP Stormwater Permit Available for Review

DEC is accepting comments on revisions to the State Pollutant Discharge Elimination System (SPDES) Multi-Sector General Permit (MSGP) for Stormwater Discharges Associated with Industrial Activity, which expires on September 30, 2017. The MSGP covers discharges of stormwater from facilities in certain industrial categories (i.e., sectors). Potentially regulated facilities must prepare a stormwater pollution prevention plan (SWPPP) and notify DEC that they intend to be covered by the MSGP. Assuming coverage is granted, the facility must implement the SWPPP and comply with the general and sector-specific conditions in the MSGP. Major changes to the MSGP include: reorganizing and reformatting the permit; updating non-numeric effluent limits to more closely align to the U.S. Environmental Protection Agency’s (EPA) 2015 MSGP, including more specific requirements for good housekeeping, maintenance, and training; increasing the frequency of benchmark and numeric effluent limit monitoring and reporting from annual to semi-annual while eliminating requirements to submit other forms; changing certain sector-specific requirements; proposing to use electronic filing for certain forms and reports, while continuing to allow paper submission as an option; and eliminating monitoring waiver provision. The proposed new MSGP (GP-0-17-004) and related materials can be found at: www.dec.ny.gov/chemical/41392.html.

DEC Seeks Comment on Updated New York Environmental Leaders Policy

DEC made available for comment a draft Commissioner Policy establishing the framework for a revised New York Environmental Leaders (NYEL) program to replace the existing NYEL policy (CP-40) issued in 2006. The revised draft NYEL program seeks “to provide recognition and incentives to organizations that demonstrate their environmental leadership through the use of pollution prevention practices, measures that go beyond compliance, and environmental management systems.” The policy outlines application criteria and procedures (including grounds for exclusion from the program), requirements for maintaining membership in the NYEL, and incentives for participation, which include public recognition, the right to use the NYEL logo, priority assistance from DEC, and coordination of schedules for routine inspections and a possibly reduced inspection schedule. The draft policy can be found at: www.dec.ny.gov/chemical/939.html.

Other Recent Developments

Federal                                                                

  • CLIMATE CHANGE: EPA announced its intention to reconsider the results of its mid-term evaluation of its light-duty vehicle GHG emission standards, which found that the standards for 2022-2025 model year vehicles were feasible at reasonable cost using existing and emergency technologies.
  • WATER: President Trump issued an executive order and follow-up notice announcing its intention to review and potentially revise or rescind the controversial rule defining “waters of the United States” for purposes of determining jurisdiction under the Clean Water Act.
  • OCCUPATIONAL SAFETY AND HEALTH: President Donald Trump signed a law nullifying a recent rule specifying that the duty to make and maintain records of work-related injuries and illnesses is an ongoing obligation; the rescission means that while companies must retain injury/illness records for five years, they arguably cannot be cited for failing to record a particular injury/illness more than six months after the record was required.

New York State

  • WATER: The New York Department of State (DOS) issued the results of its review of the consistency of the nationwide permits (NWPs) recently issued by the Army Corps of Engineers with the State’s Coastal Zone Management Program, specifying which NWPs require concurrence from DOS.