Young, Sommer...LLC Regulatory Alert

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Recent Developments (updated August 13, 2010)

DEC Issues New SPDES Enforcement Guidance

The New York State Department of Environmental Conservation (DEC) recently revised Technical Operational Guidance Series (TOGS) 1.4.2, Compliance and Enforcement of SPDES Permits, which contains guidance on enforcing the State Pollutant Discharge Elimination System (SPDES) permit program. The TOGS provides the minimum enforcement response and penalty for different SPDES violations to facilitate consistent statewide enforcement. After identifying the methods used to evaluate SPDES compliance, the TOGS lists the formal and informal enforcement options available to DEC and summarizes the minimum response required for different types of SPDES violations. The TOGS also contains appendices specifying how SPDES penalties should be calculated, including: (1) SPDES Penalty Guidance (summarizing penalty components and procedures for calculating penalties, including base penalty, adjustment factors, economic benefit, and stipulated penalty assessment); (2) Base Penalty Tables (establishing base penalty rate for different types of SPDES violations); and (3) Penalty Adjustment Factors (multipliers for different adjustment factors such as culpability, cooperation, history of noncompliance, and other factors). The new TOGS can be found on DEC's website at: www.dec.ny.gov/chemical/62557.html.

DEC Publishes Draft PBS Inspection Handbook

DEC made available for comment draft 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 PBS 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 draft program policy can be found on DEC's website at: www.dec.ny.gov/regulations/2387.html.

DEC Proposes Revisions to Endangered Species Regulations

DEC recently proposed major revisions to its rules governing endangered and threatened species to clarify its jurisdiction and specify an application and review process for addressing projects that may take listed species. The current regulations, set forth at 6 NYCRR Part 182, list endangered and threatened species and require permits prior to taking. However, they do not specify how species are listed or provide details on the permitting process. With this rulemaking, DEC is proposing important changes, including: (1) expanding the list of defined terms; (2) establishing criteria for listing and delisting species; (3) authorizing DEC to prepare and adopt recovery and restoration plans; and (4) specifying that incidental take permits are subject to the uniform procedures in 6 NYCRR Part 621, establishing application requirements for obtaining incidental take permits, including requiring preparation of an endangered or threatened species mitigation plan and implementation agreement, and specifying standards/conditions for issuing incidental take permits. The proposed regulations codify the existing informal permitting process and will likely lead to greater attention to endangered species issues in development projects. The proposed regulations can be found on DEC's website at: www.dec.ny.gov/regulations/propregulations.html.

Other major environmental legal developments:

New York State

• DEC has set fees for Title V facilities for 2010 consistent with the sliding scale enacted by the legislature in 2009 as follows: $45.00 per ton for facilities with total annual emissions of less than 1,000 tons; $50.00 per ton for facilities with total annual emissions of 1,000 tons or more but less than 2,000 tons; $55.00 per ton for facilities with total annual emissions of 2,000 tons or more but less than 5,000 tons; and $65.00 per ton for facilities with total annual emissions of 5,000 tons or more.
• The U.S. Environmental Protection Agency (EPA) proposed to approve DEC's 2009 revisions to New York's New Source Review (NSR) regulations, set forth at 6 NYCRR Part 231. These rules create a New York Prevention of Significant Deterioration (PSD) program and modify the state's existing nonattainment NSR program to reflect revisions to the federal NSR program adopted in 2002. The rule contains various New York-specific requirement that are stricter than EPA's.
• DEC proposed to amend its existing vehicle inspection and maintenance (I/M) regulations to end the New York Transient Emissions Short Test (NYTEST) program and update its I/M regulations. The NYTEST tailpipe emissions test is currently required for vehicles registered in the downstate area. Beginning January 1, 2011 vehicles statewide will be subject only to the New York Vehicle Inspection Program (NYVIP), which involves testing the vehicle's onboard diagnostic (OBD) system.
• DEC has scheduled a full day seminar on October 7, 2010 on recently issued Program Policy DER-10, Technical Guidance for Site Investigation and Remediation, which provides an overview of the site investigation and remediation process under DEC's hazardous substance remedial programs.
• DEC has reissued its New York State Stormwater Management Design Manual, one of the state's main resources for designing stormwater management projects. The new manual includes extensive provisions to encourage incorporation of green infrastructure.

Federal

• EPA proposed to extend the deadline for most facilities to amend and implement changes to their spill prevention, control and countermeasures (SPCC) plans one year from November 10, 2010 to November 10, 2011 to provide the regulated community with additional time to address revisions to the SPCC rule finalized in December 2008 and November 2009.
• The Occupational Safety and Health Administration overhauled its rules governing the operation of cranes and derricks in construction, which had not been updated in many years, to address various safety issues associated with cranes, including ground conditions, the assembly and disassembly of cranes, the operation of cranes near power lines, the certification and training of crane operators, the use of safety devices and signals, and crane inspections.
• EPA issued guidance and interpretations on compliance with Emergency Planning and Community Right-to-Know (EPCRA) §§ 311 and 312 authorizing measures designed to streamline submission of information and reports to state and local emergency responders. The rule also clarifies when follow-up written reports must be submitted under EPCRA after a spill.
• EPA proposed additional revisions to its mandatory greenhouse gas reporting rules to clarify or update certain provisions that have been the subject of questions from reporting entities. The revisions to 40 CFR Part 98 address calibration requirements, biogenic emission reporting, correction/resubmission of reports, and recordkeeping, among other subjects.
• EPA proposed to revise its national primary drinking water standard for total coliform to incorporate improvements recommended by a federal advisory committee, including replacing the existing total coliform standard with a standard for E. coli, a more specific indicator of contamination, and significantly modifying the monitoring and reporting rules.
  

For information about these and other recent developments, click on August.

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