Content Page

Archived Environmental Regulatory Summaries:

Recent Developments (updated July 7, 2010)

EPA Adopts Stricter SO2 Air Quality Standards

The U.S Environmental Protection Agency (EPA) recently adopted stricter national ambient air quality standards for sulfur dioxide (SO2), replacing the existing annual and 24-hour average SO2 standards with a 1-hour average standard of 75 parts per billion (ppb). EPA concluded after extensive study that short-term exposures to SO2 ranging from 5 minutes to 24 hours pose a significant risk, particularly in children, the elderly and asthmatics, justifying adoption of a 1-hour standard. Under the new standard, an area will be designated nonattainment for SO2 if a three-year average of the annual 99th percentile (or fourth highest) of the yearly distribution of 1-hour daily maximum concentrations exceeds 75 ppb. To ensure adequate data concerning ambient SO2 levels, EPA also made major changes to the SO2 monitoring program. EPA has preliminarily identified 60 counties nationwide that violate the 75 ppb 1-hour SO2 standard, none of which are located in New York. Information about the new primary SO2 standard can be found on EPA's website at: www.epa.gov/air/sulfurdioxide.

DEC Revises Boiler and Graphic Arts RACT Standards

The New York State Department of Environmental Conservation (DEC) recently adopted major revisions to its reasonably available control technology (RACT) standards for two important source categories - stationary combustion installations and graphic arts. With respect to stationary combustion installations, DEC revised 6 NYCRR Part 227-2, which applies to major sources of nitrogen oxides (NOx), to: (1) expand the definition of small boiler to include smaller units, thus subjecting numerous additional boilers to an annual tune-up requirement; (2) require annual tune-ups for small combustion turbines and small stationary internal combustion engines; (3) revise the definition of mid-size boilers downward, subjecting additional boilers to NOx emission limits; and (4) revise the emission limits for other stationary combustion sources. With respect to graphics arts facilities, DEC replaced its existing RACT rule, set forth at 6 NYCRR Part 234, to: (1) eliminate out-of-date applicability and compliance schedule provisions; (2) add numerous definitions relating to types of printing equipment and processes, control equipment, and cleaning materials and delete unnecessary definitions; (3) expand the term "graphic arts" to include letterpress printing processes; and (4) revise various control requirements. Both rules can be found on DEC's website at: www.dec.ny.gov/regulations/propregulations.html.

DEC Issues Site Remediation Guidance

DEC issued DER-32, Brownfield Cleanup Program Applications and Agreements, which summarizes the procedure for applying for, and obtaining approval of, a Brownfield Cleanup Agreement (BCA) under DEC's Brownfield Cleanup Program (BCP). It also contains the terms and conditions of a model BCA, which consists of two parts - the agreement itself (which contains site-specific information) and Appendix A, "Standard Clauses for All New York State Brownfield Site Cleanup Agreements," which is incorporated by reference into the BCA. In another remediation-related development, DEC announced that it was withdrawing proposed DER-30, Real Property Eligibility Opinions for the Brownfield Cleanup Program. This guidance outlined the procedures and circumstances under which DEC may issue an advance opinion on eligibility to participate in the BCP for property located in Brownfield Opportunity Areas. Program Policy DER-32 can be found on DEC's website at: www.dec.ny.gov/regulations/2393.html.

Dam Safety EAP Guidance Issued

DEC's Division of Water issued Program Policy DOW 3.1.3, entitled Emergency Action Plans for Dams, which is intended to help owners of high hazard (Class C) and intermediate hazard (Class B) dams develop Emergency Action Plans (EAPs) to be implemented during a dam failure. The program policy contains a template for EAPs for Class C high-hazard dams which consists of the following eight sections: (1) emergency notification (information necessary for timely notification of persons responsible for responding to dam emergencies); (2) statement of purpose and scope of EAP; (3) site description; (4) emergency detection, evaluation, and classification; (5) general responsibilities under the EAP; (6) preparedness; (7) inundation maps (depicting area likely to be affected by dam breach or failure); and (8) appendices relating to: training, exercising, updating and posting; definitions; and evidence of approval and distribution of the EAP. The program policy also includes an EAP template for Class B intermediate hazard dams as well as samples of key EAP support documents. The program policy can be found on DEC's website at: www.dec.ny.gov/lands/4991.html.

Other major environmental legal developments:

New York State

DEC is reproposing its new RACT standards limiting emissions of volatile organic compounds from commercial and industrial adhesives, sealants, and primers, which will be set forth at 6 NYCRR Part 228. In response to public comments, DEC revised the draft rule to better address materials used to perform the same function as the listed adhesives and sealants and incorporate provisions allowing process-specific RACT demonstrations.
DEC reproposed new RACT standards to address NOx emissions from hot mix asphalt production plants, which will be set forth at 6 NYCRR § 212.12. The revised draft rules require annual tuneups of all dryer burners, submission of plans for reducing the moisture content of aggregate stockpiles, and the assessment of low NOx burners when a burner replacement is contemplated and, long-term, for all active plants.
DEC revised its existing RACT standards for NOx emissions from cement plants and adopted new NOx RACT standards for glass furnaces, both of which are found at 6 NYCRR Part 220.
The New York Invasive Species Council issued its final report describing a proposed regulatory system for preventing the importation and/or release of non-native animal and plant species that includes a scheme for classifying species based on their invasiveness (prohibited, regulated and unregulated) as well as a procedure for reviewing non-native species that are not yet on the lists.
DEC announced its "Be Green" program to promote the training and licensing of organic yard care providers, under which DEC will allow companies to advertise using the Department's "Be Green" logo once they have their staff trained in organic practices by a DEC-licensed provider.

Federal

EPA has withdrawn the emission comparable fuel (ECF) hazardous waste exclusion adopted in December 2008, after concluding that ECF is more like a waste than a product and so should not be exempt. The rule would have excluded from regulation as hazardous waste fuels that are produced from hazardous waste but have emissions comparable to those from burning fuel oil.
EPA is proposing two options for regulating coal combustion residues (CCR) under the Resource Conservation and Recovery Act to address the risks associated with disposing of CCRs generated from burning coal at power plants. Under the first option, CCRs would be regulated as a hazardous waste when destined for disposal in a landfill or surface impoundment; however, they would be subject to special rules. Under the second option, EPA would regulate CCRs disposed of in surface impoundments or landfills as non-hazardous solid waste. Non-utility boilers burning coal are not covered by the proposed rule.
In response to a court decision, EPA announced a draft general permit under the National Pollutant Discharge Elimination System (NPDES) program addressing the application of certain pesticides to surface waters. The general NPDES permit covers application of chemical pesticides that leave a residue or biological pesticides where the application involves one of the following use patterns: mosquito and other flying insect pest control, aquatic weed and algae control, aquatic nuisance animal pest control, and forest canopy pest control. New York must develop a general permit addressing pesticide applications on water modeled after the federal permit.

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

February 2010

January 2010