Recent Developments (Updated May 4, 2012)

EPA Proposes Greenhouse Gas Emission Standards for Power Plants

The U.S. Environmental Protection Agency (EPA) proposed long-awaited New Source Performance Standards (NSPS) limiting carbon dioxide (CO₂) emissions from new fossil fuel-fired electric generating units (EGUs) in fulfillment of a consent agreement with environmental groups. The rule requires all new EGUs to meet an output-based emission rate of 1,000 pounds of CO₂ per megawatt-hour based on the performance of widely-used natural gas combined cycle units. Coal and petroleum coke-fired EGUs can meet the limit either by employing carbon capture and storage immediately or installing it within 10 years and meeting an emission limit measured over a 30-year averaging period. The NSPS applies only to new EGUs; modified sources are not regulated. The proposed rule can be found in the April 13, 2012 Federal Register at: www.gpo.gov/fdsys.

Siting Board Proposes New Article 10 Power Plant Siting Rules

The New York State Board on Electric Generation Siting and the Environment (Siting Board) proposed regulations implementing the power plant siting requirements of the Power NY Act of 2011, which created a new statewide framework for siting and repowering electric generating facilities. The regulations contain the procedures for acquiring an Article 10 Certificate of Environmental Compatibility and Public Need, covering everything from pre-application procedures through compliance filings. The proposed regulations also contain detailed directions on the content of the application itself, identifying a total of 41 exhibits that may need to be included with the application and their content/format. Earlier this year, the New York State Department of Environmental Conservation (DEC) proposed regulations establishing greenhouse gas emission standards and environmental justice review procedures mandated by the 2011 Article 10 power plant siting law. The Siting Board’s proposed regulations can be found on its website at: www.dps.ny.gov/SitingBoard.

DEC Initiates Community Air Screen Program

DEC is accepting applications for a new Community Air Screen Program, which enlists community groups and individuals to conduct air quality surveillance for air toxics at the community level using equipment provided by DEC. If air toxics are detected at levels of concern, DEC will conduct additional testing and, if necessary, attempt to identify sources of the pollutant in the community.  DEC will consider the following information in deciding whether to grant a sampling application: (1) the applicant’s air quality concern and details about the applicant’s sampling plan; (2) the health risk associated with the pollutants identified or suspected; and (3) whether the community of concern is an environmental justice area. Information about the sampling program can be found on DEC’s website at: www.dec.ny.gov/public/81629.html.

Other Recent Developments

Federal

• AIR: EPA issued ozone nonattainment area designations under the 2008 ozone national ambient air quality standard, identifying two nonattainment areas in New York – the New York City metropolitan area and Jamestown (Chautauqua County), both of which have been classified as marginal nonattainment.
• WATER: EPA adopted criteria for certain public water systems to monitor new contaminants under the Safe Drinking Water Act for purposes of assembling the data needed to help EPA decide whether to regulate the contaminants. The rule identifies the contaminants to be monitored, the methods to be used, and the implementation schedule.

New York State

• AIR: DEC revised its incinerator regulations to implement EPA’s new emission standards for existing municipally-owned sewage sludge incinerators.      
• AIR: EPA proposed to approve New York’s best available retrofit technology regulations adopted to implement the federal regional haze rule, while disapproving certain facility-specific BART determinations.
• WATER: DEC made available for comment a draft guidance addressing permits for residential open pile catwalks/docks and floating docks under the tidal wetland regulations.
• WATER: A New York trial court recently revised its decision invalidating DEC’s 2010 State Pollutant Discharge Elimination System general permit for stormwater discharges from municipal separate storm sewer systems (MS4s), removing the portion of the order annulling the permit and allowing MS4s to continue operating under the permit pending further agency/court review.

Recent Developments (Updated April 6, 2012)

OSHA Issues New Hazard Communication Standard

The Occupational Safety and Health Administration (OSHA) adopted major changes to its existing hazard communication standard (HCS) to conform to the United Nations’ (UN) Globally Harmonized System of Classification and Labeling of Chemicals (GHS). The HCS seeks to educate workers concerning chemicals in the workplace through a combination of labeling, safety data sheets (SDS), and training. With this rulemaking, OSHA revised its existing HCS to conform to the GHS with the goal of improving communication and worker comprehension. Major changes include: (1) revising the criteria for classifying chemical hazards to conform to the GHS; (2) requiring all labels to include four new, standardized elements – a signal word, pictogram, hazard statement, and precautionary statements; and (3) establishing specified headings and format for safety data sheets. The rule includes a detailed schedule for implementing the new HCS requirements; it can be found in the March 26, 2012 Federal Register at: www.gpo.gov/fdsys.

Army Corps Issues Regional NWP Conditions; DEC Seeks Comment on Water Quality Certification

The New York and Buffalo Districts of the U.S. Army Corps of Engineers (ACOE) recently issued regional conditions in the wake of last month’s revisions to the ACOE’s nationwide permits (NWPs). Individuals in New York proposing to undertake activities in a wetland or waterway that are eligible for a NWP must comply both with the terms of the applicable NWP and with regional conditions issued by the New York and Buffalo Districts. The Districts’ revised regional conditions include provisions applicable to specific NWPs, general regional conditions relating to construction best management practices, loss of bogs and fens, and national wild and scenic rivers, and requirements for additional information in predischarge notifications. In a related development, the New York State Department of Environmental Conservation (DEC) made its water quality certification (WQC) for the NWPs available for comment. The WQC imposes additional requirements on certain NWPs; where DEC denies WQC for a particular NWP, applicants must obtain an individual permit from the ACOE. The regional conditions can be found on the ACOE’s New York District website at: DEC’s draft WQC can be found at: www.nan.usace.army.mil/business/buslinks/regulat/pnotices/PN_NWPRegCondNY_16mar12.pdf. DEC’s draft WQC can be found at: www.dec.ny.gov/permits/6061.html.

DEC Proposes Changes to Industrial Stormwater Permit

DEC proposed to renew the State Pollutant Discharge Elimination System  Multi-Sector General Permit (MSGP) for Stormwater Discharges Associated with Industrial Activity, which is scheduled to expire September 30, 2012. The MSGP covers discharges of stormwater from facilities in certain industrial categories. Major changes to the MSGP include: (1) an updated list of best management practice options; (2) additional monitoring if benchmarks or numeric effluent limits are exceeded; and (3) major changes to various forms as well as to the formatting of the permit itself. The draft MSGP and related materials can be found on DEC’s website at: www.dec.ny.gov/chemical/41392.html.

Other Recent Developments

Federal

• AIR: The U.S. Environmental Protection Agency (EPA) proposed to maintain the applicability thresholds for greenhouse gas (GHG) emissions under the Prevention of Significant Deterioration and Title V operating permit programs adopted in June 2010 under EPA’s controversial GHG “tailoring rule”.
• AIR: EPA proposed to create uniform standards for storage vessel and transfer operations, equipment leaks and closed vent systems and control devices that would apply to petroleum refineries and synthetic organic chemical manufacturing facilities as EPA modifies National Emission Standards for Hazardous Air Pollutants and New Source Performance Standards applicable to sources in these categories.
• AIR: EPA decided to retain the existing secondary national ambient air quality standards for nitrogen and sulfur oxides pending further study on the feasibility of issuing a joint standard based on the collective impacts of these pollutants on sensitive aquatic systems.
• WATER: The U.S. Supreme Court issued a decision authorizing recipients of a Clean Water Act compliance order to bring a civil action challenging the order.
• OTHER: The federal Council on Environmental Quality issued guidance identifying techniques for improving the timeliness and efficiency of the National Environmental Policy Act review process.

New York State

• WATER: DEC made available for comment its updated Total Maximum Daily Load (TMDL) for Phosphorus in Onondaga Lake, which allocates phosphorus loadings among point and nonpoint sources and identifies measures to reduce phosphorus to the lake. 

Recent Developments (Updated March 2, 2012)

DEC Issues New EAFs

The New York State Department of Environmental Conservation (DEC) recently adopted major changes to the long and short environmental assessment forms (EAF) used by governments under the State Environmental Quality Review Act (SEQRA) to assess the environmental significance of projects and determine whether to require a full environmental impact statement. Major changes to the EAFs, which take effect October 12, 2012,  include: (1) revising the forms to better gather information needed to analyze zoning and planning actions; (2) adding questions about environmental concerns such as brownfield site redevelopment and climate change that have emerged since the forms were last updated; (3) reformatting and expanding the list of questions to improve the quality of the information collected; and (4) more clearly distinguishing between background information about the project (provided by the applicant) and the impact assessment (completed by the lead agency).  The new forms and related rulemaking documents can be found on DEC’s website at: www.dec.ny.gov/permits/70293.html.

Army Corps Reissues Nationwide Permits

Following a public comment process, the U.S. Army Corps of Engineers (ACOE) reissued its nationwide permits (NWPs) – standardized permits for categories of projects that typically result in minimal disturbances to wetlands and waterways. Changes to the NWP program include: (1) adding NWPs for land-based renewable energy generation facilities and water-based renewable energy generation pilot projects; (2) revising the text of numerous other NWPs, including those relating to survey activities, bank stabilization, oil and hazardous substance spill response, and surface coal mining, among many others; and (3) adding and revising general conditions and definitions. The notice concerning the reissuance of the NWPs can be found in the February 21, 2012 Federal Register at: www.gpo.gov/fdsys. Each ACOE district must develop its own regional conditions and states, including New York, must issue water quality certifications and/or coastal zone management consistency determinations in support of the NWPs.

EPA Adopts Hazardous Air Pollutant Standards for Power Plants

More than 11 years after adding power plants to the list of sources subject to regulation under Section 112 of the Clean Air Act (CAA), the U.S. Environmental Protection Agency (EPA) issued National Emission Standards for Hazardous Air Pollutants (NESHAP) for coal and oil-fired electric utility steam generating units (EGUs). With the recent rulemaking, EPA confirmed its 2000 finding that it is necessary and appropriate to regulate emissions of mercury and other hazardous air pollutants (HAPs) from EGUs under CAA § 112 and adopted maximum achievable control technology standards for coal and oil-fired power plants that include: emission limitations for various HAPs; work practice standards to ensure optimal combustion and prevent dioxin/furan emissions; and performance testing, monitoring, notification, recordkeeping and reporting requirements. The rule can be found in the February 16, 2012 Federal Register at: www.gpo.gov/fdsys.

Other Regulatory Developments

Federal

• AIR: As part of its residual risk/periodic technology review, EPA proposed stricter emission and surface tension limits under the chromium electroplating and anodizing NESHAP as a supplement to changes proposed in October 2010.
• AIR: EPA proposed revisions/corrections to the secondary aluminum production NESHAP, while announcing its determination that no changes are necessary to address residual risk or technological developments.
• AIR: EPA designated the entire country as “unclassifiable/attainment” under the 2010 primary nitrogen dioxide national ambient air quality standard (NAAQS) based on available air quality data.
• AIR: EPA proposed thresholds for classifying areas as marginal, moderate, serious, severe and extreme under the 2008 8-hour ozone NAAQS in the first of two planned rulemakings to implement the standard.

New York State

• WATER: DEC made available for comment draft revised Design Standards for Intermediate-Sized Wastewater Treatment Systems, a category that includes systems that discharge more than 1,000 gallons per day of sanitary-only wastewater underground or any quantity to surface water.
• HYDRAULIC FRACTURING: A pair of New York trial courts upheld local laws prohibiting natural gas exploration activities as an appropriate exercise of local power to regulate land use under zoning laws.

• Joe Castiglione and Rob Panasci lectured on “Passing the Buck (or Sharing It): Provisions and Tips for Towns to Save Costs on Some Everyday Municipal Issues.” The course discussed statutory provisions and practical tips to help towns avoid or share the costs of various municipal functions, including inter-municipal agreements, municipal review of certain applications, Freedom of Information Law compliance, sewer and water services, and real property tax certiorari proceedings.
• James Muscato presented a continuing legal education class on the scope of the new Article 10 power plant siting law and its implications for municipalities. In his presentation, Mr. Muscato noted that that 2011 law applies to all types of electric generating facilities with a capacity of 25 megawatts or larger and that this new, lower threshold will likely increase the number of municipalities affected by Article 10. Mr. Muscato also noted that the Article 10 process will significantly alter a municipality’s control over the review process relative to SEQRA.
• Municipalities face a host of environmental compliance obligations arising out of their day-to-day activities. At the Association of Town’s meeting, Dave Brennan, Beth Morss and Kevin Young offered a continuing legal education program entitled “Basic Environmental Compliance: A Primer for Towns.” The class provided an overview of the environmental compliance issues confronting towns, addressing such diverse topics as hazardous, universal and electronic waste handling and disposal, spill reporting and response, petroleum bulk storage compliance, stormwater management and permitting for town facilities, pesticides, boilers and open burning, among others.

Recent Developments (Updated February 3, 2012)

DEC Proposes Article X Rules

The New York State Department of Environmental Conservation (DEC) recently proposed a pair of rules implementing key elements of the 2011 Power NY Act, New York’s new power plant siting law. The first rule, set forth at 6 NYCRR Part 251, establishes carbon dioxide emission limits for new and substantially expanded major electric generating facilities – defined as facilities with a generating capacity of at least 25 megawatts. The precise limits, which differ depending on the type of unit, are low enough to effectively discourage construction of new coal and oil-fired power plants in New York. The second rule, set forth at 6 NYCRR Part 487, contains procedures for conducting the environmental justice reviews required when siting major energy projects. The proposed rules can be found on DEC’s website at: www.dec.ny.gov/regulations/propregulations.html.

Trial Court Annuls DEC’s MS4 General Permit

A Westchester County trial court recently annulled DEC’s general permit for stormwater discharges from municipal separate storm sewer systems (MS4s) after finding that the process did not result in the issuance of permits that reduce pollutant discharges in accordance with federal and state statutory mandates. Among other things, the court concluded that the general permit did not require immediate implementation of a stormwater management plan nor did it require DEC to review the plan to confirm that it would achieve the statutorily-mandated pollution reductions. The decision can be found at   switchboard.nrdc.org/blogs/llevine/court_finds_new_york_state_fai.html by clicking on the link.

Other Regulatory Developments

Federal

• AIR: The U.S. Environmental Protection Agency (EPA) proposed to create national uniform standards for heat exchange systems in conjunction with changes to the National Emission Standards for Hazardous Air Pollutants (NESHAP) for petroleum refineries; these uniform standards may eventually be incorporated into other federal regulations governing heat exchange systems.

• AIR: EPA proposed revisions to the area (i.e., minor) source NESHAP for chemical manufacturing sources, seeking comment on various issues raised by industry in a petition for reconsideration and proposing other changes.
• AIR: EPA proposed residual risk and periodic technology review findings for various chemical production-related categories under the NESHAP program.
• CLIMATE CHANGE: EPA reported the first round of data under its mandatory greenhouse gas (GHG) reporting rule; the data showed that approximately 72% of reported stationary source GHG emissions came from power plants in 2010.
• CLIMATE CHANGE: EPA set the renewable fuel standards (RFS) that will apply to gasoline and diesel transportation fuel produced or imported during 2012.
• WATER: EPA released the Discharge Monitoring Report (DMR) Pollutant Loading Tool, which allows users to investigate wastewater discharge information and prepare reports.

New York State

• WATER: DEC made available for comment its draft list of impaired waters required by Section 303(d) of the Clean Water Act.

Recent Developments (Updated January 6, 2012)

EPA Proposes Changes to Combustion Standards

The U.S. Environmental Protection Agency (EPA) proposed changes to rules adopted in March 2011 that established emission standards for commercial and industrial solid waste incinerators (CISWI) and commercial, industrial and institutional boilers and process heaters. Three of the rules were developed in response to a court decision vacating the CISWI and major source boiler and process heater standards on the ground that EPA improperly included certain solid waste incineration units under the boiler and process heater standard. With the recent rulemakings, EPA proposed the following changes:

• CISWIs. Revised emission limits for waste-burning kilns and solid fuel-burning energy recovery units; revised monitoring requirements; clarified what types of units are regulated as CISWIs.

• Major source industrial, commercial and institutional boilers and process heaters. Created separate subcategories for units burning light and heavy liquids; set separate particulate matter limits for each solid fuel-fired boiler subcategory; replaced numeric emission limits for dioxins with work practice standards; decreased tune-up requirements for certain small boilers.

• Area source industrial, commercial and institutional boilers. Created new subcategory for “seasonally operated boilers;” extended deadline for existing boilers to complete initial tune-ups; extended time between boiler tune-ups for small oil-fired boilers.

The proposed rules can be found in the December 23, 2011 Federal Register at: www.gpo.gov/fdsys.

DEC Proposes Major Revisions to State Agency Equipment Rules

The New York State Department of Environmental Conservation (DEC) proposed major revisions to the rules implementing the Diesel Emissions Reduction Act (DERA) of 2006, which requires heavy-duty vehicles (HDVs) that are owned by, operated by or on behalf of, or leased by any state agency to satisfy certain requirements designed to reduce emissions. Consistent with the statute, the implementing regulations require HDVs to be equipped with best available retrofit technology (BART) that achieves specified reductions in particulate matter emissions. In response to a court decision, DEC recently proposed to revise the definition of contractor in 6 NYCRR Part 248 to exclude subcontractors. Other proposed changes include: (1) excluding most companies delivering materials to the work site from regulation; (2) establishing a single compliance deadline of December 31, 2012 for using and maintaining BART; and (3) adding a new “useful life” waiver provision. The proposed changes can be found on DEC’s website at: www.dec.ny.gov/regulations/propregulations.html.

Court of Appeals Upholds State Superfund Remedial Standard

New York’s highest court recently issued a decision upholding key provisions of the State’s remedial program regulations against a challenge that DEC had exceeded its statutory authority by requiring the restoration of inactive hazardous waste disposal sites to “pre-disposal conditions.” In In re New York State Superfund Coalition v. DEC, the New York Court of Appeals concluded that while the statute required cleanups to address a “significant threat,” this provision merely established the standard for initiating cleanup and did not limit the scope of the subsequent remedial program. The court went on to find that language in the regulation requiring cleanup to “pre-disposal conditions, to the extent feasible” prevented DEC from unilaterally fashioning a remedy that ignores practical considerations such as cost and technical feasibility. The court’s decision can be found at: www.courts.state.ny.us/CTAPPS/Decisions/2011/Dec11/189opn11.pdf.

Other Regulatory Developments

Federal

• AIR: Pending resolution of petitions challenging the rule, a federal appeals court stayed implementation of EPA’s Cross-State Air Pollution Rule establishing a multi-state cap-and-trade program for nitrogen oxide and sulfur dioxide emissions to replace the Clean Air Interstate Rule.

• AIR: EPA announced the results of its residual risk and periodic technology reviews of the primary aluminum reduction plant and pulp and paper industry National Emission Standards for Hazardous Air Pollutants (NESHAP).

• AIR: EPA adopted a direct final rule establishing a less stringent design efficiency standard under the NESHAP for cyclones located at certain prepared feed manufacturing operations.

• WATER: EPA solicited information to aid in developing numeric effluent limitations for construction-related turbidity following the agency’s decision to stay a 280 nephelometric turbidity unit standard adopted in 2009 for construction sites disturbing more than 10 acres.

• WATER: EPA sought comment on a revised draft general permit authorizing discharges from non-military and non-recreational vessels 79 or more feet in length.

New York State

• GENERAL: DEC issued its regulatory agenda for 2012 identifying the regulatory changes the Department may pursue in the upcoming year.

• AIR: DEC proposed to revise its existing incinerator regulations to implement EPA’s emission standards for sewage sludge incinerators.

• SOLID WASTE: New York’s ban on businesses disposing of electronic waste in landfills took effect January 1, 2012; the statewide ban on disposal of rechargeable batteries as solid waste took effect December 5, 2011.

We begin this month with air pollution regulation. As anyone who reads the news can attest, more than 20 years after enactment of the Clean Air Act (CAA) Amendments of 1990, federal and state efforts to regulate air pollution remain in a state of flux. Although the U.S. Environmental Protection Agency (EPA) has largely completed the hundreds of rulemaking and other tasks assigned to it under the 1990 CAA Amendments, many of the standards required by the Act are now undergoing review. Moreover, new issues have arisen that demand regulatory attention. At the state level, the New York State Department of Environmental Conservation (DEC) has undertaken several important air initiatives in the last 12 months. NOTE: This summary does not cover rules relating to mobile sources.

To read the entire article, click here.

Recent Developments (Updated December 5, 2011)

Water Withdrawal Permit Rule Proposed

The New York State Department of Environmental Conservation (DEC) recently proposed regulations implementing a 2011 law establishing an expanded water withdrawal permit program. Consistent with the authorizing statute, the regulations require facilities with the capacity to withdraw at least 100,000 gallons per day (gpd) from the state’s ground or surface waters to get a permit from DEC; other water withdrawal-related activities also require a permit.  The regulations establish a multi-year schedule for submitting the required permit application; they also contain detailed requirements for completing the application process and issuing permits. Individuals withdrawing water for agricultural purposes or who engage in interbasin transfers must comply with special registration requirements. Consistent with the authorizing statute, regulated entities must submit annual water withdrawal reports to DEC by March 31^st. The proposed regulations can be found on DEC’s website at: www.dec.ny.gov/regulations/propregulations.html.

EPA Proposes Major Revisions to Underground Storage Tank Regulations

The U.S. Environmental Protection Agency (EPA) recently proposed major revisions to its underground storage tank (UST) regulations to implement the requirements of the Energy Policy Act (EPAct) of 2005 and revise/update other UST requirements. Among other things, EPA proposed to: (1) implement a three-tiered system for training employees involved in managing USTs; (2) require secondary containment for certain new/replaced tanks, piping and other equipment; (3) require additional inspection/testing to ensure tank integrity; (4) impose UST requirements on certain tanks that currently are deferred from regulation; and (5) make other changes to improve/update the regulations. DEC currently is revising its petroleum and chemical bulk storage regulations to incorporate both the EPAct requirements and major changes to the petroleum bulk storage statute adopted by the legislature in 2008. The EPA proposal can be found in the November 18, 2011 Federal Register at: www.gpo.gov/fdsys.

EPA Issues Residual Risk/Periodic Technology Findings for Shipbuilding and Wood Furniture Manufacturing Sources 

EPA recently issued the final results of its residual risk and periodic technology review of the National Emission Standards for Hazardous Air Pollutants (NESHAP) for shipbuilding and ship repair and wood furniture manufacturing. With respect to the shipbuilding and ship repair standard, which is set forth at 40 CFR Part 63, subpart II, EPA concluded that the existing standard provides an adequate margin of safety and that there have been no technological improvements that justify changes to the rule. With respect to the wood furniture standard, set forth at 40 CFR Part 63, subpart JJ, EPA revised the rule to limit the use of formaldehyde in coatings and contact adhesives and prohibit conventional air spray guns unless they are equipped with controls. As part of the rulemaking, EPA also eliminated existing startup, shutdown and malfunction provisions, requiring instead that facilities comply with the standards at all times, including during startup and shutdown. With respect to malfunctions, EPA adopted an affirmative defense to civil penalties which is available to facilities that satisfy certain criteria. The rule can be found in the November 21, 2011 Federal Register at: www.gpo.gov/fdsys.

Other Regulatory Developments

Federal

• AIR: EPA identified five additional areas of the country as nonattainment under the revised national ambient air quality standards for lead, making a total of 21 lead nonattainment areas nationwide; in New York, Orange County has been designated unclassifiable pending quality assurance of data showing an exceedance of the lead NAAQS in 2011.
• AIR: EPA proposed major revisions to its NESHAPs for mineral wool production and wool fiberglass manufacturing and ferroalloys production following a residual risk/periodic technology review.
• CLIMATE CHANGE: EPA and the National Highway Traffic Safety Administration  proposed new standards to improve the fuel economy of light-duty motor vehicles and reduce greenhouse gas emissions for model years 2017-2025.
• BULK STORAGE: EPA extended the deadline for farms to amend and implement their spill prevention, control and countermeasure plans to May 10, 2013 in the wake of extensive flooding and other concerns.
• WATER: EPA announced its final plan for studying the impact of hydraulic fracturing on drinking water, which will examine the full lifespan of water in the hydraulic fracturing process from acquisition through treatment and disposal.
• HEALTH AND SAFETY: The Occupational Safety and Health Administration issued an instruction entitled PSM Covered Chemical Facilities National Emphasis Program that contains procedures for agency inspections of facilities subject to the process safety management program.  

New York State

•  WATER: The New York State Department of Health amended its public water system (PWS) regulations to implement EPA’s 2006 Groundwater Rule, which was adopted to reduce the risk of exposure to fecal contamination in PWS that use groundwater. Among other things, the rule includes new monitoring, notification, and recordkeeping requirements and requires all PWS to prepare a written monitoring plan.
• OTHER: DEC extended the deadline for submitting comments on its revised draft high volume hydraulic fracturing rulemaking, including the supplemental generic environmental impact statement, general stormwater permit, and regulations, to January 11, 2012.

Recent Developments (Updated November 4, 2011)

DEC Seeks Input on Changes to Air Permit Rule

The New York State Department of Environmental Conservation (DEC) is seeking input from stakeholders on planned revisions to New York’s air permitting regulations, which have not been significantly revised since 1996 when DEC adopted changes required to implement the Clean Air Act’s Title V operating permit requirements. Major changes to 6 NYCRR Part 201 under consideration include: (1) clarifying the procedures for obtaining approval of physical changes at existing Title V facilities; (2) revising the provision requiring new sources to obtain state facility permits because they trigger a New Source Performance Standard or emit a hazardous air pollutant; (3) revising the list of exempt and trivial activities, including the exemption for temporary emission sources; (4) adding a permit term for registrations and state facility permits; and (5) requiring certain facilities that emit specified persistent, bioaccumulative and toxic compounds above threshold levels to obtain a state facility permit. A stakeholder meeting on the changes is scheduled for November 14, 2011 at DEC’s offices in Albany; DEC is seeking input from the public before formally proposing rule changes in 2012.

EPA Issues Pair of CERCLA Guidance Documents

The U.S. Environmental Protection Agency (EPA) recently issued a pair of Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) guidance memoranda. The first memorandum explains how to conduct five-year reviews of the institutional control (IC) component of remedies. Examples of ICs include easements, restrictive covenants, zoning and building codes, and other non-engineered mechanisms designed to minimize the potential for human exposure to contaminants at remedial sites. The second memorandum provides guidance on deciding whether an entity is “affiliated” with a potentially responsible party and so ineligible for the exemption from liability for bona fide prospective purchasers or contiguous property owners. The IC guidance can be found on EPA’s website at: www.epa.gov/superfund/cleanup/postconstruction/641333.pdf; the affiliation guidance can be found at: cfpub.epa.gov/compliance/resources/policies/cleanup/superfund by clicking on “Bona Fide Prospective Purchasers”.

OSHA Issues Health and Safety Guidance Documents

The Occupational Safety and Health Administration (OSHA) announced the publication of numerous documents explaining workers’ and employers’ rights and obligations under various health and safety programs, including: (1) a small entity compliance guide for the OSHA respiratory protection standard; (2) guidance explaining an employer’s rights and responsibilities following an OSHA inspection; (3) a laboratory safety guidance targeted at individuals with primary responsibility for maintaining the safety of laboratories; and (4) quick cards and other documents summarizing key information for workers relating to confined space entry, working in trenches, and preventing nail gun injuries and heat stress. These documents can be accessed via an October 17, 2011 press release announcing the publications, which can be found at:  www.osha.gov/whatsnew.html.

Other Regulatory Developments

Federal

• EPA published an advanced notice of proposed rulemaking seeking comment on a proposed approach to prioritizing the eight-year periodic review of New Source Performance Standards (NSPS) required by the Clean Air Act.
• EPA published a memorandum explaining its plan for implementing the 2008 rule reducing the eight-hour ozone national ambient air quality standards.
• EPA proposed to revise its NSPS for nitric acid plants, including setting a stricter standard for nitrogen oxide emissions.
• EPA adopted an interim final rule extending the deadline for farms to amend and implement their spill prevention, control, and countermeasure plans from November 10, 2011 to May 10, 2013.
• EPA presented its 2010 Effluent Guidelines Program Plan announcing its intent to adopt technology-based effluent guidelines for wastewater discharges associated with shale gas extraction, coalbed methane extraction, and use of dental amalgam by dentists.
• After a 17-year administrative stay, EPA announced that it would be requiring submission of Toxic Release Inventory reports for hydrogen sulfide, which is commonly found in natural gas and biogas.

New York State

• DEC issued a letter to the Business Council of New York State clarifying that it was not imposing two fees for hazardous waste generated in 2010 during the transition to the hazardous waste fee program enacted by the New York legislature early in 2010.
• DEC issued its SPDES General Permit for Point Source Discharges to Surface Waters of New York from Pesticide Applications, excluding from the requirement to obtain coverage certain aquatic pesticide applications to small ponds (one acre or less in size).

The new Article 10 legislation will apply to all electric generating facilities that are proposed to be 25 MW or larger. Mr. Ward’s presentation focused on the applicability of the new Article 10 to renewable energy facilities and the implications of the new siting process. The State DEC and PSC are required to enact regulations within one year. Mr. Ward said that he sees the rule making process as an opportunity for the wind industry to make the Article 10 process work for the siting of wind energy projects.

The primary site contaminant is the chlorinated volatile organic compound (VOC) trichloroethylene (TCE), which was discovered in shallow groundwater at the site during a 2010 Phase II subsurface investigation. Other detected contaminants include concentrations of metals and polycyclic aromatic hydrocarbons (PAHs) also attributed to former site uses.

The property was entered into the New York State Brownfield Cleanup Program but there was a controversy as to whether the Estate of the former Owner should be treated as a “Volunteer” or “Participant” under the program. After discussions with the Department of Environmental Conservation with regard to the century old industrial use of the property, the presence of historic infrastructure, the lack of clear evidence of releases during the time of ownership by the Estate’s deceased, the fact that an “Estate” is not a “person” for purposes of a CERCLA evaluation [see, 42 USC Section 9601 (21)] and that the beneficiaries of the Estate would all have been eligible for innocent landowner defenses under both CERCLA and the State ECL, the DEC agreed to enter the Estate as a Volunteer.

The Brownfield Cleanup Agreement has been signed and site investigation and interim remedial actions are expected to commence after approval by the DEC of the RI and IRM work plans.

The property will be redeveloped after implementation of the remedial action program and is another good example of how the private sector and the Department work together to cleanup and redevelop contaminated properties.

For more information on the State Brownfield Cleanup Program, contact Dean S. Sommer at (518) 438-9907, ext. 236.

Recent Developments (Updated October 7, 2011)

DEC Proposes Hydraulic Fracturing Regulations and Stormwater General Permit

Several weeks after making its revised draft supplemental generic environmental impact statement (SGEIS) available for comment, the New York State Department of Environmental Conservation (DEC) proposed to revise state regulations to address the unique issues associated with high-volume hydraulic fracturing (HVHF); it also made available for comment a draft general permit for stormwater discharges associated with HVHF. New York’s oil, gas and solution mining regulations, which are contained in 6 NYCRR Parts 550-559, require permits, establish well spacing and setback standards, mandate appropriate drilling practices, establish procedures for well plugging and abandonment, and set financial security requirements. With this rulemaking, DEC proposed changes to the existing regulations to implement recent statutory changes and make other revisions. DEC also proposed to add a new Part 560 specifically addressing HVHF that codifies many of the mitigation measures contained in the SGEIS relating to setbacks, well construction, and testing and operation, among other requirements. As part of the same rulemaking, DEC also proposed changes to the state’s wastewater discharge and public lands rules, again with the goal of codifying SGEIS mitigation measures. In a related development, DEC is seeking comment on a draft State Pollutant Discharge Elimination System (SPDES) General Permit for Stormwater Discharges from High-Volume Hydraulic Fracturing that addresses each phase in the HVHF process – construction, the actual fracturing process, and ongoing natural gas production activities. The proposed regulations can be found on DEC’s website at: www.dec.ny.gov/regulations/77353.html. The draft general SPDES permit can be found at: www.dec.ny.gov/permits/77251.html.

DEC Revises NSR Regulations to Incorporate GHG and Fine Particulate Matter Requirements

DEC revised its New Source Review (NSR) regulations to incorporate U.S. Environmental Protection Agency (EPA) rules relating to greenhouse gases (GHG) and fine particulate (PM_2.5) following an emergency rule in late December 2010 implementing the changes. With respect to GHGs, the revisions incorporate EPA’s GHG “tailoring rule,” which creates special Prevention of Significant Deterioration (PSD) applicability thresholds to address the fact that GHGs are emitted in significantly greater quantities than other PSD pollutants. DEC also revised 6 NYCRR Part 231 to address a pair of EPA rules implementing NSR for new and modified sources of PM_2.5, including provisions addressing sulfur dioxide and nitrogen oxides as PM_2.5 precursors. The final rule can be found at: www.dec.ny.gov/regulations/propregulations.html.

Other Regulatory Developments

Federal

• EPA issued Plan EJ 2014, a three-year plan outlining EPA’s strategy for advancing environmental justice (EJ), which contains EPA’s EJ goals and strategies/action items in three broad areas: Cross-Agency Focus (addressing issues or functions relevant across EPA); Tools Development (focusing on developing the methods, mechanisms and systems to support EJ); and Program Initiatives (focusing on EJ issues arising under specific EPA programs).
• EPA and the National Highway Traffic Safety Administration established national greenhouse gas emission standards and improved fuel efficiency standards for heavy-duty trucks and buses, including combination tractors (i.e., semi trucks), heavy-duty pickup trucks and vans, and “vocational vehicles” such as delivery, refuse, utility, and dump trucks, buses, emergency vehicles, and tow trucks.
• EPA made available for comment a draft document entitled Guidance for 1-Hour SO₂ NAAQS SIP Submissions, which provides guidance to states on how to prepare a state implementation plan required to implement the 2010 revisions to the national ambient air quality standards for sulfur dioxide.

New York State

• DEC plans to issue a general permit entitled SPDES General Permit for Point Source Discharges to Surface Waters of New York from Pesticide Applications, and is accepting comment on a revision to the permit that excludes from the requirement to obtain coverage certain aquatic pesticide applications to small ponds (one acre or less in size).
• DEC proposed to renew the SPDES Multi-Sector General Permit for Stormwater Discharges Associated with Industrial Activity for an additional six months to September 30, 2012 to provide the Department with additional time to complete its review of the permit.
  • DEC revised 6 NYCRR 200.10 to incorporate new National Emission Standards for Hazardous Air Pollutants contained in the 2009 Code of Federal Regulations into New York’s regulations and so give the Department authority to implement and enforce the NESHAPs included in the rulemaking.
  • DEC is accepting applications until October 31, 2011 for its New York Environmental Leaders program, which seeks to recognize and provide incentives to organizations that demonstrate use of sustainable business practices or pollution prevention practices that exceed environmental compliance.

In recent months, state and local coverage of environmental issues has been dominated by discussions of high-volume hydraulic fracturing (HVHF) – a controversial method of extracting natural gas from shale using large quantities of water and chemicals injected under pressure. Advancements in hydraulic fracturing technologies are opening up new natural gas deposits for drilling, including the Marcellus Shale, which extends across much of New York’s southern tier. Critics charge that the chemicals used in the HVHF process could potentially contaminate groundwater and that flowback from HVHF cannot easily be treated and disposed of; they also raise concerns about blowouts and other accidents, pointing to several high profile incidents in Pennsylvania as proof. Advocates for HVHF contend that the practice is safe and that allowing drilling in New York will lower energy prices in the State and provide distressed rural areas with a much-needed source of revenue.

Although HVHF has been in the media for the past several years, the debate has intensified in recent months with the publication by the New York State Department of Environmental Conservation (DEC) of a revised draft Supplemental Generic Environmental Impact Statement for HVHF, which itemizes the environmental costs and benefits of the process and establishes conditions designed to mitigate any adverse impacts. This article provides an overview of the HVHF issue in New York, a summary of New York’s existing program regulating the environmental impacts of natural gas drilling, an overview of DEC’s recent HVHF-related activities, and a summary of the issues associated with local regulation of HVHF.

What Is Hydraulic Fracturing and Why Is It an Issue Now?

Hydraulic fracturing (i.e., “hydrofracking”) is a practice that has been used for decades to collect natural gas. The process involves the injection of water, chemicals and sand into rock formations to crack rock and release natural gas.  The chemicals consist of friction reducers, biocides, gels, corrosion protection agents and other chemicals designed to aid in the hydraulic fracturing process; the sand acts as a “proppant,” holding fissures open to facilitate the flow of natural gas from rock into the well.

Increased reliance on a variation of this process known as horizontal hydraulic fracturing has raised the profile of hydrofracking generally. Horizontal hydrofracking entails the injection of drilling fluids horizontally along strata containing natural gas deposits. On the plus side, this practice significantly increases the ability to recover natural gas from shale gas deposits, making natural gas development economically viable in many areas for the first time.  In New York, for example, the advent of horizontal hydrofracking has opened up the Marcellus Shale and, perhaps, the Utica Shale for possible development.  As a result, many upstate New Yorkers are confronting the possibility of natural gas drilling near their homes for the first time. On the negative side, horizontal hydrofracking requires more water than traditional hydrofracking, increasing public concerns about possible impacts on water supply, including contamination.  Reports of well blowouts and wastewater treatment problems in Pennsylvania and elsewhere have heightened public concerns about HVHF.

History of Hydraulic Fracturing Regulation in New York

Prior to the advent of high-volume hydraulic fracturing, New York had established a comprehensive program regulating oil, gas and solution mining. Article 23 of the New York Environmental Conservation Law (ECL) and its implementing regulations, set forth at 6 NYCRR Parts 550-559, require individuals to obtain a permit from DEC prior to drilling for natural gas. The statute and regulations also impose comprehensive well spacing requirements. In addition, drillers must comply with setback requirements that limit the location of wells in relation to homes, streets, water bodies and other features. They also must implement specific drilling practices, and comply with rules relating to plugging and abandonment, reporting, recordkeeping and financial security.

The construction and operation of wells also are potentially subject to other environmental regulations, depending on the specific details of the project.  For example, if the operator intends to directly discharge flowback water from the site, it must obtain a State Pollutant Discharge Elimination System (SPDES) permit from DEC; if construction of the project could potentially disturb one acre or more, the project arguably must seek coverage under the SPDES general permit for stormwater discharges associated with construction activity.  Drilling activities also are subject to the State Environmental Quality Review Act (SEQRA).

In an effort to simplify the process of obtaining approval for oil and gas wells generally, DEC issued a Generic Environmental Impact Statement (GEIS) for oil and gas solution mining in 1992. In issuing the GEIS, DEC concluded that granting an oil or gas permit in the state when no other permits were involved did not have a significant environmental impact. Accordingly, if drilling was carried out in accordance with the conditions in the GEIS, no further SEQRA review would be required.  Under the 1992 GEIS, drilling in state parkland, agricultural districts or within 2,000 feet of a municipal water supply well or where other permits were necessary triggered a site-specific review. Drilling within 1,000 feet of a municipal water supply well, meanwhile, was considered significant and required a supplemental environmental impact statement.

As noted above, increased reliance on HVHF sparked renewed interest in DEC’s oil, gas and solution mining program. Ultimately, DEC concluded that the 1992 GEIS did not adequately address the additional environmental concerns raised by the HVHF process. As a result, in 2008, DEC announced plans to issue a supplemental GEIS (SGEIS). The Department completed the scoping process early in 2009, and followed up with a draft SGEIS in Fall 2009.  DEC received thousands of comments on the draft SGEIS, many of which expressed concerns about the environmental impact of the HVHF process.

The Revised Draft SGEIS

In Summer 2011, DEC made a revised draft SGEIS available for public comment. (The revised draft SGEIS can be found on DEC’s website at: www.dec.ny.gov/energy/75370.html.)

Like the previous draft, the revised draft SGEIS: describes the proposed action; provides an overview of the SEQRA review process and identifies those types of drilling activities that require site-specific SEQRA review; describes the geology of the Marcellus and Utica shales; discusses natural gas activities and the high-volume hydraulic fracturing process; summarizes the potential environmental impacts associated with HVHF, including those relating to water resources, ecosystems and wildlife, air, greenhouse gas emissions, socioeconomic, visual, noise, community character, transportation, and others; and discusses permit processing and regulatory coordination.  As with the previous draft, the core of the document is the mitigation measures – the steps individuals seeking to conduct HVHF must take to prevent environmental impacts and so eliminate the need for an individual SEQRA review.  Below is a partial list of the key mitigation measures contained in the revised draft SGEIS.

Restrictions of Location of HVHF Wells

Wells using HVHF are barred from locating in the following areas of New York:

• In or near the New York City and Syracuse watersheds;
• On or near primary aquifers (i.e., highly productive aquifers used by major municipal water systems);
• On certain state-owned land;
• Within 500 feet of a private water well or within 2,000 feet of a public drinking water supply well or reservoir; and
• Within a 100-year floodplain.

In addition, site-specific review is required to conduct HVHF with 500 feet of principal aquifers subject to reevaluation by DEC after two years.

Wastewater Management Measures

Owners/operators of wells using HVHF must comply with the following requirements designed to reduce the potential impact of the HVHF process on ground and surface waters:

• Mandatory disclosure of hydraulic fracturing additives and evaluation of “eco-friendly” alternatives;
• Testing drinking water wells in the vicinity of drilling;
• Constructing most wells with an additional third casing to prevent gas migration into aquifers;
• Requiring all on-site flowback water to be stored in watertight tanks within secondary containment and establishing a new stormwater general permit for gas drilling operations;
• Requiring applicants to have DEC-approved plans for disposing of flowback water and production brine and establishing a system to track disposal of flowback water similar to that for medical waste; and
• Requiring completion of a “Pre-Fracking Checklist”.

Other Mitigation Measures

• Establishing air quality control, greenhouse gas, and habitat loss and wildlife impact mitigation measures;
• Requiring completion of a transportation plan identifying proposed truck routes and assessing road conditions; and
• Requiring measures to reduce adverse noise or visual impacts from well construction.

The Revised Oil, Gas and Solution Mining Regulations

Several weeks after making its revised draft SGEIS available for comment, DEC proposed to revise state regulations to address the unique issues associated with high-volume hydraulic fracturing.  (The proposed regulations can be found on DEC’s website at: www.dec.ny.gov/regulations/77353.html.) DEC originally planned to implement the special requirements applicable to HVHF operations almost exclusively through mitigation measures developed as part of the SGEIS process. Under this approach, drillers seeking a HVHF permit from DEC could avoid individual SEQRA review of their project by implementing the mitigation measures set forth in the SGEIS. In the wake of growing controversy about HVHF in New York, DEC apparently became concerned that compliance with the mitigation measures in the SGEIS was not enough and so proposed to incorporate key mitigation measures into its oil, gas and solution mining regulations and wastewater permitting rules, among others. DEC also is proposing other changes to its oil, gas and solution mining regulations.

As previously noted, New York’s oil, gas and solution mining regulations, which are contained in 6 NYCRR Parts 550-559: require permits; establish well spacing and setback standards; mandate appropriate drilling practices; establish procedures for well plugging and abandonment; and set financial security requirements. Proposed changes include:

• Adding definitions of hydraulic fracturing, true measured depth, true vertical depth, well spud, and workover;
• Eliminating a cap on the financial security required to plug deep wells;
• Extending the term of a permit to drill, deepen, plug back or convert a well from six months to two years and authorizing reissuance of permits to another operator at previously permitted locations;
• Modernizing the regulations to make them consistent with recent statutory changes relating to well spacing;
• Imposing additional reporting/recordkeeping requirements relating to disposal of drill cuttings and preparation of interim completion reports addressing lengthy gaps in drilling operations; and
• Increasing minimum requirements for plugging.

DEC also proposed to add a new Part 560 to specifically address HVHF – defined as well fracturing that involves more than 300,000 gallons of water for fracturing operations. The new rule codifies many of the mitigation measures contained in the SGEIS into regulation, including: setbacks; the permit application process (disclosure of chemical additives, detailed mapping, etc.); well testing, recordkeeping and reporting; and well construction and operation.

As part of the same rulemaking, DEC also proposed changes to 6 NYCRR Part 750, including adding a new subpart 750-3 containing the wastewater permitting requirements applicable to HVHF operations. Finally, DEC proposed to revise various state land regulations to incorporate prohibitions on HVHF operations on state lands.

The Draft HVHF Stormwater General Permit

A major concern among many opponents of the HVHF process is the potential impact of stormwater flows from drilling sites on surface waters. To address this problem, DEC made available for comment a draft SPDES General Permit for Stormwater Discharges from High-Volume Hydraulic Fracturing. (The draft general permit and related documents can be found on DEC’s website at: www.dec.ny.gov/permits/77251.html.) HVHF operations occur in three phases, each of which is subject to different permit conditions. These conditions derive from the existing construction general permit (CGP) and multi-sector general permit (MSGP) for stormwater discharges from industrial activities as well as from mitigation measures contained in the draft SGEIS currently under review. Requirements for each HVHF phase are summarized below:

• Construction phase (access road and well pad construction). The requirements applicable during this phase are consistent with the CGP and include: regular site inspections by qualified inspectors; timely implementation of corrective action when necessary; and certification that the construction phase is complete once the site has been stabilized and stormwater controlled. The permit also includes narrative effluent limit guidelines published by EPA in 2009 relating to erosion and sediment controls, soil stabilization, construction site dewatering, and pollution prevention, among other requirements.
• HVHF phase (actual well drilling activities, including use and storage of chemicals and other materials, equipment use and storage, etc.). The requirements applicable during this phase depend on the activities at the site and derive both from the SGEIS (identification of fluid additives, wastewater treatment and disposal plan, etc.) and the MSGP (secondary containment, corrective actions, good housekeeping, etc.). They also include structural and nonstructural best management practices, as well as inspection, maintenance and monitoring requirements.
• Production phase (natural gas extracted from well). This phase involves a reduced level of activity; as a result, the inspection, monitoring and other similar requirements are reduced.

Owners/operators of HVHF drilling operations will be required to obtain an individual SPDES permit for stormwater discharges from the drilling site or seek coverage under the draft general permit by submitting a notice of intent form to DEC and preparing a stormwater pollution prevention plan (SWPPP). The owner/operator must comply with both the general permit and the site-specific SWPPP.

The Public Comment Process

DEC is accepting comments on the draft high-volume hydraulic fracturing SGEIS, regulations and SPDES general permit until December 12, 2011. Public hearings on these HVHF initiatives have been scheduled in the second half of November at the following locations: Dansville, Binghamton, Loch Sheldrake, and New York City. Information about the HVHF comment process can be found on DEC’s website at: www.dec.ny.gov/energy/75370.html.

Local Regulation of High-Volume Hydraulic Fracturing

As concern about the HVHF process has increased, significant questions have arisen about what rights local governments have to regulate or bar the activity. Currently, the state statute governing oil and gas drilling includes a provision declaring that it supersedes local laws and ordinances “relating to the regulation of oil, gas and solution mining industries” subject to certain limited exceptions. ECL § 23-0303(2). In a 1987 decision, the New York Court of Appeals interpreted a similar provision of New York’s Mined Land Reclamation Law (MLRL) and concluded that it did not prohibit municipalities from exercising authority under their zoning laws to restrict or ban mining. Frew Run Gravel Products, Inc. v. Town of Carroll, 71 N.Y.2d 126 (1987). In reaching its decision, the court concluded that allowing the MLRL provision to preempt the town’s zoning ordinance would drastically curtail the town’s power to adopt zoning regulations as provided in New York Town Law § 261 and other provisions. The Legislature subsequently amended the MLRL supersession provision to expressly authorize local zoning ordinances or laws that determine permissible uses in zoning districts; however, no similar change has been made to the drilling supersession provision. Nevertheless, the 1987 court of appeals decision arguably provides support for the conclusion that municipalities have the authority to ban drilling even in the absence of specific language in the supersession provision authorizing the adoption of zoning laws that limit drilling activities. However, the drilling law does not allow municipalities or counties to enact laws regulating drilling practices. Thus, while a town arguably could perhaps ban drilling generally as a permitted use under its zoning laws, it probably could not ban the specific practice of HVHF without running afoul of the supersession provision.

On the issue of local regulation, the SGEIS cites ECL § 23-0303(2) for the proposition that the oil, gas and solution mining law supersedes all local laws relating to the regulation of oil and gas development except for local jurisdiction over local roads or the right to collect real property taxes. The SGEIS does not address the distinction drawn by the Frew Run decision between local government’s regulatory and zoning authority. To address local government concerns, the revised draft SGEIS requires DEC to notify local governments of all applications for HVHF in the locality. More important, it requires the applicant to identify whether the proposed location of the well pad conflicts with local land use laws or regulations, plans or policies. Where conflicts are identified, DEC will require additional information from the applicant to enable the Department to determine whether significant adverse environmental impacts will result from the project that have not been addressed and whether additional mitigation or other actions should be taken to address those impacts.

The provisions of the revised draft SGEIS, when viewed together with existing statutory and case law, raise significant questions about what authority local governments have to limit HVHF within their boundaries. The draft SGEIS requires DEC to evaluate and attempt to mitigate conflicts with local zoning laws and plans; however, it does not compel DEC to defer to local laws even where the law would ban either the specific practice of HVHF or natural gas drilling generally. Absent additional action by the legislature, questions about local authority over gas drilling activities will likely be resolved by the courts.