News & Articles

Environmental Regulatory Update – October 2017

Download the full report for October 6, 2017 (pdf)

Recent Developments (Updated October 6, 2017)

DEC Revises Solid Waste Regulations

The New York State Department of Environmental Conservation (DEC) published its revised solid waste regulations following a pair of public comment periods. The revised regulations: delete several outdated rules; consolidate all generally applicable provisions (including definitions) into 6 NYCRR Part 360; organize facility-specific requirements into broad categories by Part; revise the list of exempt facilities and the criteria/thresholds for requiring registrations versus permits; add new categories of waste management activities to address recently-identified concerns, including mulch processing, metal processing and vehicle dismantling, used cooking oil and yellow grease processing, and navigational dredged material handling; update the landfill and other standards to reflect technological developments; revise the waste transportation requirements to increase the threshold for exempting loads of several common waste streams and establish registration and waste tracking requirements for certain transportation activities; and revise and update the beneficial use determination provisions, including establishing a five-year renewal requirement. In response to public comments, DEC revised key definitions; amended the new provisions relating to reuse of fill material to address concerns that the original proposal was burdensome; revised the composting provisions; loosened the requirements for wood debris and construction and demolition debris storage; and revised the provisions relating to landfill gas to avoid interfering with opportunities to market carbon offset credits. The final regulations can be found at: www.dec.ny.gov/regulations/81768.html.

EPA Issues Draft Strategic Plan

The U.S. Environmental Protection Agency (EPA) made its Draft FY 2018-2022 Strategic Plan available for comment. The plan outlines three broad goals for the agency for the next four years and identifies objectives for achieving those goals. In keeping with earlier pronouncements, the draft plan calls for returning EPA to its core mission of “providing Americans with clean air, land and water” as well as ensuring the safety of products in the marketplace through programs that evaluate the risk of chemicals and pesticides. The draft plan also calls for “rebalancing power between Washington and the states to create tangible environmental results for the American people” and “administering the law, as Congress intended, to refocus the Agency on its statutory obligations under the law.” Consistent with other Trump administration pronouncements, the draft strategic plan includes no mention of climate change. Information about the draft strategic plan can be found in the October 5, 2017 Federal Register at www.gpo.gov/fdsys.

Other Recent Developments

Federal                                                                

  • TRANSITION: Consistent with other recent efforts, EPA extended compliance deadlines for two major Obama era regulations—the effluent limitations guidelines and standards for steam electric generating sources and the formaldehyde emission standards for composite wood products.
  • TRANSITION: President Trump issued an executive order compelling federal agencies to take steps to establish discipline and accountability in the environmental review and permitting process for infrastructure projects; the order was followed by an initial list of actions by the Council on Environmental Quality to implement the order.
  • AIR: EPA proposed to find that no changes to the National Emission Standards for Hazardous Air Pollutants (NESHAP) for portland cement manufacturing are necessary to address residual risk or implement recent technological developments.
  • CLIMATE CHANGE: EPA is accepting comment on possible further reductions to the renewable fuel standard volume levels for 2018 and 2019 (biomass-based diesel only) following the proposal of standards for 2018/2019 in July.
  • REMEDIATION: EPA authorized the use of ASTM International’s Standard E2247-16, Standard Practice for Environmental Site Assessment: Phase I Environmental Site Assessment Process for Forestland or Rural Property to show that a site owner/purchaser had conducted all appropriate inquiries necessary to obtain liability protections under the federal Superfund program.

Environmental Regulatory Update – September 2017

Download the full report for September 8, 2017 (pdf)

Recent Developments (Updated September 8, 2017)

EPA Adopts Key TSCA Implementation Rules

EPA adopted several important rules required to implement Congress’ 2016 law reforming the Toxic Substances Control Act (TSCA). The Frank R. Lautenberg Chemical Safety for the 21st Century Act calls for significant changes to TSCA, the decades-old program requiring EPA to evaluate and respond to the risks posed by toxic chemicals. Among other things, the new law: establishes a risk-based process for prioritizing chemicals for risk assessment and sets goals and schedules for completing reviews; establishes a schedule for taking action when EPA identifies unreasonable risks relating to a specific chemical; and requires EPA to make a safety finding before allowing new chemicals/significant new uses into the marketplace. In fulfillment of the statutory mandate, EPA recently adopted rules implementing three key steps in the existing chemical review process. The first rule establishes procedures for reaching out to industry to identify chemicals that are no longer being manufactured and so do not require further review. The second rule establishes the procedures for identifying high priority chemicals that require evaluation. The third rule establishes the procedures for conducting a risk evaluation for purposes of deciding whether a particular chemical requires regulation under TSCA. Information about the TSCA reform statute can be found at: www.epa.gov/laws-regulations/summary-toxic-substances-control-act.

Superfund Task Force Recommendations Issued

A task force of EPA staff convened by the EPA Administrator provided recommendations on ways to restructure the Superfund cleanup process to expedite remediation, reduce the burden on cooperating parties, incentivize remediation, encourage private investment in cleanups, and promote redevelopment. The EPA Superfund Task Force Report identified five overarching goals, followed by strategies, recommendations and specific actions for achieving each goal. Many of the 42 recommendations are intended to be implemented immediately. These include prioritizing and taking actions at sites where the risk of human exposure is not fully controlled; utilizing early or interim response actions more frequently to address immediate risk; prioritizing development of remedial investigation/feasibility studies for sites that require immediate action; compiling existing information on the reuse potential of National Priority List  (NPL) sites; tracking real time remedy implementation and completion; and focusing resources on current NPL sites with the most reuse potential. The focus of the recommendations generally is on setting aggressive deadlines for site cleanups and identifying sites where land can be re-used to promote third party investment. EPA also is recommending use of the superfund alternative approach, which involves the same site investigation/remediation process but avoids adding the site to the NPL, thus avoiding the stigma of listing. The report can be found on EPA’s website at: www.epa.gov/superfund/superfund-task-force-recommendations.

EPA Proposes to Rescind Waters of the United States Rule

EPA and the U.S. Army Corps of Engineers (ACOE) proposed to rescind the 2015 joint rule redefining the term “waters of the United States” and thus the scope of protection afforded under the Clean Water Act (CWA). Over the years, many questions have arisen about the definition of this key term, prompting the Obama administration to adopt a controversial rule in 2015 defining the term to include specific categories of jurisdictional waters and allowing other waters to be included on a case-by-case basis. A federal court stayed the rule and President Trump issued an executive order directing EPA and the ACOE to reconsider it. With the recent rulemaking, EPA proposed to formally rescind the 2015 rule and restore the pre-revision version as informed by agency guidance and Supreme Court decisions. In a second step, the agencies plan to reevaluate the definition and potentially propose changes. The proposed rule can be found in the July 27, 2017 Federal Register at: www.gpo.gov/fdsys.

Other Recent Developments

Federal                                                                

  • AIR: EPA is proposing to retain the existing national ambient air quality standards (NAAQS) for nitrogen dioxide (NO2) without revisions after finding that the current standards provide the requisite protection to public health with an adequate margin of safety.
  • AIR: EPA announced that it was withdrawing its earlier proposal to extend the deadline for states to designate nonattainment areas under the 2015 ozone NAAQS one year after finding that the “gaps” in information that prompted the extension were not as significant as originally thought.
  • AIR: EPA is proposing changes to the National Emission Standards for Hazardous Air Pollutants (NESHAP) for manufacturing of amino/phenolic resins and wool fiberglass manufacturing to address issues remaining after completion of the residual risk/periodic technology review.
  • CLIMATE CHANGE: EPA is accepting comment on whether to reconsider its earlier finding that the greenhouse gas emission standards for model year 2022-2025 light-duty vehicles are still appropriate and achievable.
  • CLIMATE CHANGE: EPA proposed renewable fuel standards for gasoline and diesel transportation fuel produced or imported for 2018 at levels below those mandated by the Clean Air Act due largely to lower than expected levels of cellulosic biofuel production.
  • WATER: EPA issued a rule modifying and updating its testing procedures approved for analysis and sampling under the CWA to add newly approved methods, approve new versions of previously approved methods and update the list of consensus standards incorporated by reference, among other changes.

New York State

  • SOLID WASTE: DEC accepted a Final Supplemental Generic Environmental Impact Statement for the revisions to the solid waste regulations that includes a brief description of each proposed change; a discussion of the history and purpose of the change; a review of the alternatives considered; and a summary of the environmental impact of the proposed change.

Young/Sommer Successful in Northern District Clean Air Act Case

The firm defended Global Companies against a citizen suit action seeking declaratory relief, injunctive relief, and civil penalties for alleged violations of the Clean Air Act and New York’s state implementation plan at its petroleum terminal in Albany.  The plaintiffs in White v. Global Companies LLC alleged, among other things, Global failed to comply with the nonattainment New Source Review program when it modified its Title V air permit in 2012. Global moved to dismiss two of Plaintiffs’ claims for lack of subject matter jurisdiction and a third claim for failure to state a claim upon which relief could be granted.  The Court granted Global’s motion to dismiss in its entirety after finding no merit in Plaintiffs’ action.  The decision can be viewed here.

EBC Meeting on October 6, 2017

Please join us for our next meeting of the Environmental Breakfast Club where the topic will be “Management of Contaminated Soils at Landfills” presented by Stephen G. Zemba, Ph.D., P.E., Project Director, SANBORN | HEAD & ASSOCIATES, INC.

Register here.

Young/Sommer LLC Lawyers Highly Ranked in Publications

Young/Sommer LLC is pleased to announce it was again recognized by Chambers USA as a leading New York law firm in the environmental law practice area.  The firm is listed as one of the top nine Environmental firms in New York.  It is the fourteenth consecutive year that Young/Sommer has placed among the top ten New York State Environmental firms in the legal guide.  The Chambers USA listing states that Young/Sommer is an “Albany-based boutique known for its full environmental service capabilities and representation of upstate clients” and that Young/Sommer “boasts a diverse skill set encompassing wastewater, air quality and cleanup knowledge, among other areas.”

Partners Dean Sommer and Kevin Young were, once again, individually recognized in the Chambers USA listing.  The publication notes that Dean Sommer “enjoys a fine reputation as a leading environmental litigator with substantial experience in toxic tort and hazardous substances claims.”  Chambers notes that Kevin Young “advises clients on a broad range of environmental regulations, including on air, wetland and solid waste issues, and is noted for his representation of clients in Superfund and brownfield litigation.”

The Chambers USA rankings are based on in-depth confidential interviews with clients and lawyers, asking participants to rate firms on legal ability and client service.  Chambers USA is published by Chambers and Partners, an international firm that produces directories of top lawyers in 175 countries, providing independent rankings and editorial commentary.  Information on Chambers and Partners, and all the legal directories they publish, can be found at http://www.chambersandpartners.com.

Several Young/Sommer LLC attorneys were also selected to the 2017 Upstate New York Super Lawyers and 2017 Upstate New York Rising Stars lists, including Super Lawyers Kevin M. Young, Dean S. Sommer and James A. Muscato II (for environmental law), Robert A. Panasci (for real estate law), Kenneth S. Ritzenberg (for schools and education law) and Stephen C. Prudente (for family law).  Super Lawyers Rising Stars include Joseph F. Castiglione (for environmental litigation), Lauren L. Hunt (for family law) and Jessica Ansert Klami (for PI General: Plaintiff).

 

Environmental Regulatory Update – July 2017

Download the full report for July 17, 2017 (pdf)

Recent Developments (Updated July 17, 2017)

DEC Reproposes Solid Waste Regulations

The New York State Department of Environmental Conservation (DEC) has made additional changes to its solid waste management regulations following a lengthy public comment period. The original proposal: deleted several outdated rules; consolidated all generally applicable provisions (including definitions) into 6 NYCRR Part 360; organized facility-specific requirements into several broad categories by Part; revised the list of exempt facilities and the criteria/thresholds for requiring registrations versus permits; added new categories of waste management activities to address recently-identified concerns, e.g., wood debris and yard trimmings, metal processing and vehicle dismantling, used cooking oil and yellow grease processing, and biohazard waste management; updated the landfill and other standards to reflect recent technological developments; and revised and updated the beneficial use determination provisions, including establishing a five-year renewal requirement. In response to public comments, DEC revised key definitions; amended the provisions relating to fill material (“historic fill” in the original proposal) to allow easier reuse of excavated materials on-site; significantly revised the composting provisions; loosened the requirements for wood debris and construction and demolition debris storage; added a new subpart addressing navigational dredge material handling and recovery; and revised the provisions relating to landfill gas to avoid interfering with opportunities to market carbon offset credits, among many other changes. The proposed revisions can be found at: www.dec.ny.gov/regulations/81768.html.

Additional Revisions to Industrial Stormwater Permit Available for Review

DEC is accepting comments on additional revisions to the State Pollutant Discharge Elimination System (SPDES) Multi-Sector General Permit (MSGP) for Stormwater Discharges Associated with Industrial Activity, which was proposed for renewal earlier this year. 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 and notify DEC that they intend to be covered by the MSGP. After proposing numerous changes to the MSGP earlier this year to incorporate federal housekeeping requirements, increase the frequency of benchmark monitoring while eliminating certain reporting requirements, and change certain sector-specific obligations, DEC is now proposing to require electronic reporting of discharge monitoring reports using EPA’s NetDMR system, encourage electronic filing of other forms/reports and incorporate annual dry weather flow monitoring into comprehensive site compliance inspections, among other changes. The reproposed MSGP (GP-0-17-004) and related materials can be found at: www.dec.ny.gov/chemical/41392.html.

EPA Adopts Effluent Limitations Guidelines for Dentists

The U.S. Environmental Protection Agency (EPA) adopted effluent limitations guidelines, set forth at 40 CFR Part 441, to limit discharges of mercury and other metals from dental practices to publicly owned treatment works (POTWs) based on installing and operating amalgam separators or other comparable equipment and compliance with specific best management practices to prevent mercury discharges that bypass the separator. Dentists that typically do not handle amalgam except in emergencies can submit a certification to EPA that exempts them from the rule. In recognition of the unique issues associated with regulating dentists, EPA is requiring dentists to submit a one-time compliance report containing information about the facility and a certification that the discharge meets the performance standard. In New York, the effluent guidelines will apply in addition to the existing hazardous waste regulations addressing dental amalgam set forth at 6 NYCRR subpart 374-4. EPA’s effluent guidelines can be found in the June 14, 2017 Federal Register at: www.gpo.gov/fdsys.

Other Recent Developments

Federal                                                                

  • TRANSITION: The Trump administration has proposed and/or adopted numerous extensions to the effective date of various regulations, including the oil and natural gas production emission standards, risk management plan requirements, effluent limitations guidelines and standards for steam electric power generating sources, and electronic injury and illness reporting requirements. However, a federal appeals court rejected the oil and natural gas rule extension after finding that EPA lacked the authority to adopt it under the Clean Air Act (CAA).
  • AIR: EPA announced that it is extending the deadline for states to designate nonattainment areas under the 2015 ozone national ambient air quality standards one year to October 1, 2018 while EPA reviews the standards.
  • CHEMICAL: EPA announced the availability of risk evaluation scoping documents for the first 10 existing chemicals designated for review under the amended Toxic Substances Control Act.

New York State

  • AIR: DEC set Title V fees for 2017 in accordance with the State’s statutory scheme, which requires all facilities to pay a base fee of $2,500 plus additional per ton fees ranging from $60 to $90. As in past years, the fees do not cover the cost of the Title V program as required by the CAA.
  • AIR: DEC is accepting public input on clean air projects to be funded by $128 million from the nationwide settlement with Volkswagen of allegations that the company cheated on emissions tests of certain diesel vehicles.
  • WATER: EPA issued a third emergency rulemaking imposing lead testing requirements on public school drinking water systems pending adoption of a permanent rule, which was proposed last month.
  • WATER: DEC made its revised Environmental Benefit Permit Strategy rankings available for review; the rankings identify the SPDES permits scheduled for a full technical review in the upcoming year.

Environmental Regulatory Update – June 2017

Download the full report for June 5, 2017 (pdf)

Recent Developments (Updated June 5, 2017)

Trump Withdraws from Paris Agreement

President Trump announced that the United States will withdraw from the 2015 Paris Agreement on climate change. The Agreement requires participating nations to pledge to reduce greenhouse gas emissions, monitor their progress and report the results. Unlike the earlier Kyoto Protocol, which the United States declined to sign, the Paris Agreement does not impose binding targets on participating countries. As a result, the decision to withdraw is largely symbolic. The announcement has been widely condemned on environmental, political and economic grounds with various business leaders expressing concern that the decision may lead to trade disputes while depriving the nation of clean energy and other opportunities.

DEC Proposes New Dry Cleaning Emission Standards

The New York State Department of Environmental Conservation (DEC) has proposed to repeal and replace the air emission standards for dry cleaning facilities set forth at 6 NYCRR Part 232 to reflect shifts in the industry and incorporate changes to federal standards. Among other things, DEC is: phasing out all perchloroethylene (perc) dry cleaning machines from residential buildings as well as all third generation machines (i.e., those without integral secondary control systems); imposing additional standards on fourth generation perc machines, including monthly operator machine testing at co-located residential and commercial facilities; and establishing an approval process for alternative dry cleaning solvents and imposing new emission standards, equipment and operating standards on alternative solvent dry cleaning machines. Currently, alternative solvent dry cleaning activities are regulated under 6 NYCRR Part 212. The proposed rule can be found on DEC’s website at: www.dec.ny.gov/regulations/110006.html.

Governor Announces Methane Reduction Plan

Governor Andrew Cuomo announced his Methane Reduction Plan establishing a framework for state agencies to implement measures to reduce emissions of methane, a powerful greenhouse gas. The Governor directed five agencies, including DEC, to inventory emissions and identify strategies for methane capture and elimination. The resulting plan identifies 25 measures in three sectors—oil and gas, landfills and agriculture. With respect to the oil and gas sector, the plan focuses on leak detection and repair measures, new monitoring and mitigation options, and improved knowledge and information sharing, among other measures. The landfill initiatives, by comparison, focus on developing and implementing programs to divert organics from landfills and implementing methane capture technologies. With respect to agriculture, the plan includes manure and livestock management and carbon sequestration measures. The plan can be found at: www.dec.ny.gov/energy/99223.html.  

Other Recent Developments

Federal                                                                

  • TRANSITION: The Trump administration proposed to slash the U.S. Environmental Protection Agency’s (EPA) 2018 budget by approximately 31%, including: eliminating various regional and other programs; significantly reducing grants to the states for basic program administration; slashing funding for climate and energy research; and significantly reducing funding for basic air, water, enforcement and other programs.
  • CHEMICAL: EPA is accepting comments on draft guidance supporting its recently adopted rule requiring manufacturers/processors of nanoscale materials to report certain information under the Toxic Substances Control Act while at the same time extending the effective date of the rule three months.

New York State

  • WATER: After a pair of emergency rulemakings, the New York State Department of Health has proposed permanent regulations imposing lead testing requirements on public school drinking water systems.
  • WATER: DEC is compiling data to assist it in developing a list of impaired surface waters as required under Section 303(d) of the Clean Water Act for purposes of identifying waters that do not support their designated uses and so may require development of a total maximum daily load plan.

Environmental Regulatory Update – May 2017

Download the full report for May 9, 2017 (pdf)

Recent Developments (Updated May 9, 2017)

Legislature Enacts Drinking Water and Related Initiatives in Budget Bill

The New York State Legislature recently passed the Fiscal Year 2017-2018 Budget Bill, which includes numerous programs targeted primarily at preventing and responding to drinking water contamination. Key provisions of S.2007B/A.3007B include:

  • Allocating $3.0 billion in water infrastructure funding for upgrading municipal drinking and wastewater infrastructure, water quality improvement projects, improvements in the New York City watershed, drinking water remediation and mitigation, upgrades and replacements of septic systems and cesspools, among other projects.
  • Establishing a new provision of the Public Health Law requiring the New York State Department of Health (DOH) to adopt regulations for identifying emerging contaminants for monitoring by public water systems and establishing procedures for responding if concentrations exceed notification levels.
  • Creating a new Drinking Water Quality Council to help identify emerging contaminants that require monitoring.
  • Establishing new Environmental Conservation Law Article 27, Title 12, for studying, mitigating and remediating solid waste sites that are causing and/or substantially contributing to drinking water impairments that may adversely impact public health and addressing emerging contaminants identified by DOH.
  • Establishing a funding program for source water protection projects (i.e., land acquisition by municipalities and other entities for source water protection purposes).

The bill can be found on the Assembly website at: http://assembly.state.ny.us.

DEC Seeks Comment on Cleansing Product Ingredient Disclosure Program

The New York State Department of Environmental Conservation (DEC) made available for comment a draft Household Cleansing Product Ingredient Disclosure Program Guidance Document and form implementing a long-standing regulation that authorizes DEC to require manufacturers of “household cleansing products” distributed in the State to provide DEC with information regarding product ingredients and make such information publicly available.  Pursuant to the draft guidance, the information to be disclosed includes: product and manufacturer information; level of disclosure (type of ingredients that must be disclosed, rules governing “trace ingredients,” etc.); ingredients and content by weight; presence of ingredients on various lists of chemicals of concern; and research on human health and the environment. The guidance also specifies how access to the information must be provided to the public. The draft guidance can be found on DEC’s website at: www.dec.ny.gov/chemical/109021.html.

Revised BCP Application Guidance Available for Review

DEC is taking comment on draft revisions to 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). DEC is revising DER-32 to implement recent changes to the BCP statute and make other updates/improvements. The guidance outlines the key steps in the application process, including: application submission; determination of a complete application; procedures for submitting reports and draft work plans simultaneously with the application; application approval and disapproval; information about the BCA itself; and procedures for amending and terminating the BCA. The draft includes numerous changes from the existing policy, including: requiring preapplication studies to show that the site qualifies for the BCP; simplifying the provisions relating to existing and future land use; revising the criteria for denying a BCP application; dropping the model BCA from the guidance; and clarifying the rules governing amendment of BCP applications. Draft Program Policy DER-32 can be found on DEC’s website at:    www.dec.ny.gov/regulations/2393.html.  

Other Recent Developments

Federal                                                                

  • TRANSITION: As part of a broader Trump administration regulatory reform initiative, the U.S. Environmental Protection Agency (EPA) is seeking input from the public on environmental regulations that may be appropriate for repeal, replacement or modification.
  • WATER: EPA announced that it is postponing the effective date of its 2015 amendments to the effluent limitations and guidelines for wastewater discharges from steam electric generating units pending judicial review.

New York State

  • AIR: DEC is accepting applications for the 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.

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.

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.