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Environmental Regulatory Update – March 2017

Download the full report for March 3, 2017 (pdf)

Recent Developments (Updated March 3, 2017)

DEC Proposes Major Changes to SEQRA Regulations

The New York State Department of Environmental Conservation (DEC) recently proposed its first major changes to the State Environmental Quality Review Act (SEQRA) regulations in more than 20 years. Under SEQRA, government agencies must review actions, such as zoning and permit approvals, to determine whether they may potentially have an adverse environmental impact and impose mitigation measures, if necessary. With the recent rulemaking, DEC is proposing to update and streamline the SEQRA review process. Key changes include: revising the list of Type I actions (i.e., actions likely to have adverse impacts), including establishing less stringent criteria for projects within or substantially contiguous to historic resources; expanding the list of Type II actions (i.e., actions that do not require SEQRA review) to encourage certain types of environmentally sound projects such as green infrastructure retrofits, certain solar energy projects, redevelopment of urban sites, and renovation and reuse of existing structures, among many others; and requiring a preliminary identification of issues/impacts (i.e., “scoping”) for all environmental impact statements (EIS) and implementing other changes to ensure that impacts are identified and addressed early in the review process. The draft regulations can be found on DEC’s website at: www.dec.ny.gov/permits/83389.html.

DOH Proposes Drinking Water Rule Updates

The New York State Department of Health (DOH) proposed changes to the State’s public water system regulations, set forth at 10 NYCRR Subpart 5-1, to conform to federal regulations and incorporate certain State statutory changes. Key federal conforming changes include: revising the existing rules governing the management of lead and copper pipes to address changes to the federal rule; incorporating changes to federal rules designed to reduce the potential risk of adverse health effects associated with two common disinfection byproducts; implementing changes to reduce exposure to cryptosporidium and other microorganisms associated with high-risk drinking water systems, such as those using surface water or groundwater directly influenced by surface water or that hold finished water in uncovered water storage facilities; and establishing variance provisions. DOH also proposed changes to the cross-connection control rules and water supply emergency plan requirements to address recent changes to the New York Public Health Law. The proposed regulations can be found on the DOH website at: https://regs.health.ny.gov/regulations/proposed-rule-making.

DEC Accepts Comments on Water Withdrawal Guidance Document

DEC is accepting comments on draft guidance entitled Processing Water Withdrawal Permit Applications, which is intended to help DEC staff implement 6 NYCRR Part 601—the rule requiring a permit or registration for systems capable of withdrawing at least 100,000 gallons of water per day. Beginning several years ago, DEC began phasing in water withdrawal permitting requirements based on system capacity with the largest systems permitted first. The draft guidance provides an overview of the permitting program and specifies procedures for receiving and processing water withdrawal permit applications, including conducting the required technical review. The guidance contains several appendices, including a water withdrawal permitting checklist for determining administrative completeness and a list of required and typical permit conditions that distinguishes between public (i.e., drinking water) and non-public systems. The draft guidance can be found on DEC’s website at: www.dec.ny.gov/lands/55509.html.

Other Recent Developments

Federal                                                                

  • GENERAL: The U.S. Environmental Protection Agency (EPA) extended the comment deadline for various rules to provide the new administration with time to review the proposals. Affected proposals include: rules regulating certain uses of trichloroethylene under the Toxic Substances Control Act; revisions to the National Emission Standards for Hazardous Air Pollutants for publicly owned treatment works; and EPA’s proposed denial of a petition to add states to the Northeast Ozone Transport Region.
  • CHEMICAL: EPA denied a petition asking the agency to prohibit the addition of fluoride to water supplies after finding that petitioners failed to show that fluoride had caused neurotoxic harm.

New York State

  • AIR: DEC made available for comment draft guidance DAR-17, Federal Enforceability of Air Pollution Control Permits, which describes the procedures and requirements for developing federally enforceable permit conditions in conjunction with State air operating permits.
  • CLIMATE CHANGE: DEC issued sea level rise projections, in partial fulfillment of the 2014 Community Risk and Resiliency Act, which calls for developing a program to ensure that decisions regarding certain State permits and expenditures consider climate risk, including sea level rise.
  • BULK STORAGE/REMEDIATION: DEC adopted a permanent rule adding perfluorooctanoic acid and related compounds to the list of hazardous substances under 6 NYCRR Part 597, allowing the State to regulate the bulk storage of these chemicals and to address contaminated sites under the State Superfund program.
  • HAZARDOUS WASTE: DEC announced a pair of initiatives to help retail pharmacies ensure compliance with hazardous waste regulations and discourage improper disposal of waste pharmaceuticals, including a new audit program targeted at retail pharmacies as well as funding for installation and operation of consumer drug collection boxes.
  • POLLUTION PREVENTION: DEC is accepting applications for New York’s Environmental Excellence Awards, which recognize public, private and non-profit entities that have achieved environmental excellence through innovative and environmentally sustainable practices or creative partnerships.
  • WATER: DEC issued a Section 401 water quality certification in conjunction with nationwide permits (NWP) recently reissued by the U.S. Army Corps of Engineers that identifies the regional conditions (if any) that permittees must satisfy in order to protect water quality and obtain coverage under a particular NWP in New York.
  • OTHER: DEC issued guidance establishing a framework for responding to the discovery of new invasive species to promote timely decision-making and communication in the event of a new invasive species infestation.