Download the full report for May 2013 (pdf)

Recent Developments (Updated May 6, 2013)

EPA Issues Draft Vapor Intrusion Guidance

After a decade long review process, the U.S. Environmental Protection Agency (EPA) made available for comment a pair of draft guidance documents addressing vapor intrusion (VI) – the general term given to migration of hazardous vapors from subsurface contaminant sources, such as contaminated soil or groundwater, through the vadose zone and into indoor air. The first document, EPA’s draft OSWER Final Guidance for Assessing and Mitigating the Vapor Intrusion Pathway from Subsurface Sources to Indoor Air, describes the recommended framework for assessing VI generally and provides guidance on monitoring and terminating building mitigation systems. The second draft document, entitled Guidance for Addressing Petroleum Vapor Intrusion at Leaking Underground Storage Tank Sites, provides guidance on investigating and assessing petroleum vapor intrusion (PVI), with a focus on underground storage tanks. The general draft VI guidance can be found on EPA’s website at:  www.epa.gov/oswer/vaporintrusion/documents/vaporIntrusion-final-guidance-20130411-reviewdraft.pdf. EPA’s PVI guidance can be found at: www.epa.gov/oust/cat/pvi/petroleum-vapor-intrusion-review-draft-04092013.pdf.

Appellate Division Upholds Natural Gas Drilling Ban

In a unanimous decision, New York’s Appellate Division, Third Department, held that a local law banning natural gas drilling was not preempted by New York’s Oil, Gas and Solution Mining Law (OGSML). In Norse Energy Corp. v. Town of Dryden, the plaintiff, a natural gas drilling company, alleged that an amendment to the local zoning code banning natural gas drilling violated the supersession clause of the OGSML. In affirming the trial court decision, the appellate court concluded that while New York Environmental Conservation Law § 23-0303(2) bars local governments from regulating the details of oil, gas and solution mining, it does not prevent them from exercising their zoning authority to bar such activities altogether. In support of its conclusion, the court cited both the legislative history of the OGSML and case law interpreting similar provisions under New York’s Mined Land Reclamation Law. Because the decision was unanimous, the plaintiff must receive permission from the New York Court of Appeals to appeal the case.

Other Recent Developments

Federal

• AIR: In response to petitions for reconsideration, EPA revised the National Emission Standards for Hazardous Air Pollutants (NESHAP) for new coal and oil-fired electric utility steam generating units, establishing less stringent emission limits for certain air pollutants and modifying various monitoring requirements.    
• AIR: EPA proposed to revise the New Source Performance Standards for the oil and natural gas sector after determining that it had seriously underestimated the number of storage vessels potentially subject to the standard and so needed to extend the deadline for facilities to comply.
• AIR: EPA proposed additional changes to the NESHAP for mineral wool production and wool fiberglass manufacturing, including establishing a new area source standard applicable to minor sources in the wool fiberglass category.
• AIR: EPA proposed to exempt certain hydrocarbon-based substitute refrigerants from the prohibition against venting during equipment maintenance, repair and disposal, after finding that the three refrigerants – R-600a, R-441A and R-290 – do not pose a threat to the environment.
• WATER: EPA issued a revised general permit for certain larger vessels (79 or more feet in length) that regulates numerous discharges incidental to normal vessel operations under the National Pollutant Discharge Elimination System permit program, while postponing issuance of a similar permit for smaller vessels.

New York State

• AIR: In an effort to streamline the program and conform to federal requirements, the New York State Department of Environmental Conservation (DEC) proposed to revise its transportation conformity rule, which is used to ensure that federally funded transportation plans and projects located in nonattainment and maintenance areas conform to New York’s state implementation plan.
• WATER: DEC made available for review its revised Environmental Benefit Permit Strategy rankings, which identify the top 10 percent of State Pollutant Discharge Elimination System permits scheduled for full technical review in the coming year.

Download the full report for March 2013 (pdf)

Recent Developments (Updated March 1, 2013)

DEC Overhauls Air Permitting Regulations

The New York State Department of Environmental Conservation (DEC) overhauled New York’s air permitting regulations, which have not been significantly revised since 1996 when DEC implemented the Clean Air Act’s Title V permitting requirements. Key changes to 6 NYCRR Part 201 include: (1) revising the applicability provisions relating to registrations and state facility permits; (2) revising the list of exempt and trivial activities, including extending the exemption for “temporary” emission sources to all facilities, not just those subject to Title V permits; (3) revising and reorganizing the emission capping provisions; (4) establishing a 10-year term for registrations and state facility permits; and (5) establishing new permitting requirements for facilities that emit one or more of 63 listed persistent, bioaccumulative and toxic compounds from non-exempt emission sources. The revisions will significantly affect virtually every facility with a DEC-issued air permit; however, the impacts are likely to be greatest for smaller facilities with registrations or state facility permits. The new regulations can be found on DEC’s website at: www.dec.ny.gov/regulations/propregulations.html.

EPA Issues Revised Boiler Rules

The U.S. Environmental Protection Agency (EPA) revised the major and area source boiler rules following a contentious reconsideration process in which industry alleged that EPA failed to consider all available data and so set rules that were unachievable or unnecessarily stringent. With respect to the major source boiler standards, set forth at 40 CFR Part 63, subpart DDDDD, EPA expanded the number of boiler categories, set new emission limits for various pollutants, and replaced numeric limits with work practice standards for dioxin. Most smaller/cleaner major source boilers are subject to tuneup requirements instead of emission limits. EPA also revised the area source standards for industrial, commercial and institutional boilers, set forth at 40 CFR Part 63, subpart JJJJJJ. The vast majority of boilers regulated under subpart JJJJJJ must comply with tuneup requirements only; certain larger boilers also must conduct an energy assessment to identify cost-effective energy conservation measures, while other larger boilers are subject to emission limits. Natural gas boilers remain exempt from the area source boiler standards. As part of the same review, EPA also revised the standards for commercial and industrial solid waste incinerators (40 CFR Part 60, subparts CCCC and DDDD) and the rule governing identification of non-hazardous secondary materials as solid waste (40 CFR Part 241), which was adopted to distinguish boilers from incinerators. See the attached regulatory summary for details.

RGGI States Revise Model Rule

The states participating in the Regional Greenhouse Gas Initiative (RGGI) revised the model rule developed to implement the multi-state RGGI carbon dioxide (CO₂) cap-and-trade program for power plants in the Northeast. Major changes include: (1) significantly lowering the regional CO₂ budget to encourage additional emission reductions; (2) establishing a cost containment reserve, comprised of a fixed additional supply of allowances that is available for sale if allowance prices exceed specified thresholds; and (3) requiring sources to hold allowances equal to at least 50% of their emissions during the first two years of the three-year control period. RGGI states must now revise their implementing statutes/regulations to incorporate the changes to the model rule. Information about the RGGI can be found at: www.rggi.org.

DEC Proposes Environmental Audit Incentive Policy

DEC made available for comment a draft Environmental Audit Incentive Policy to encourage regulated entities to audit their operations by reducing or waiving penalties for violations that are discovered and disclosed voluntarily. The policy is available to any regulated entity, with limited exceptions. However, certain violations are not eligible for penalty relief under the policy. To take advantage of the policy, the regulated entity must disclose the violation “expeditiously” and correct it in accordance with the schedule spelled out in the policy. DEC will waive gravity-based penalties for companies that self-disclose under the policy and may waive other penalties if the company implements environmental audits or environmental management systems during the ordinary course of business or pursuant to an environmental audit agreement. The draft policy can be found on DEC’s website at: www.dec.ny.gov/regulations/2374.html.

Other Recent Developments

Federal

• AIR: EPA proposed changes to its policy governing excess emissions during startup, shutdown and malfunction (SSM) events, together with a notice requiring 36 states to revise their state implementation plans (SIP) to eliminate inconsistent SSM provisions (i.e., a SIP call). The changes are designed to eliminate state provisions that improperly excuse excess emissions during SSM.
• AIR: EPA revised key aspects of its controversial air emission standards for cement plants, including establishing new particulate matter emission limits and monitoring requirements.
• AIR: EPA proposed renewable fuel standards for transportation fuel in 2013 as well as revisions designed to minimize the potential for fraud in the wake of recent civil and criminal actions arising from the sale of credits for non-existent renewable fuel.
• REMEDIATION: EPA issued a technical report entitled Evaluation of Empirical Data to Support Soil Vapor Intrusion Screening Criteria for Petroleum Hydrocarbon Compounds, addressing the behavior of PHC vapors in subsurface soils and how these vapors can affect subsurface-to-indoor air vapor intrusion.
• WATER: EPA revised its national primary drinking water standard for total coliform to replace the total coliform standard with one for E. coli and make other changes to the testing and public notification requirements for coliform.

New York State

• REMEDIATION: DEC issued for comment a draft document entitled Screening and Assessment of Contaminated Sediment that provides information and guidance to DEC staff on screening, evaluating and assessing contaminated sediment to determine whether it is toxic or potentially poses a risk to aquatic life.
• PESTICIDES: DEC is accepting comment on a draft Long Island Pesticide Pollution Prevention Strategy, which is designed to reduce the potential for contamination of Long Island’s sole source aquifer by minimizing pesticide use.

Download the full report for February 2013 (pdf)

Recent Developments (Updated February 1, 2013)

EPA Adopts New PM Standards

The U.S. Environmental Protection Agency (EPA) strengthened the 2006 national ambient air quality standards (NAAQS) for fine particulate matter (PM_2.5), fulfilling its obligation to review each NAAQS every five years and responding to a 2009 court decision remanding aspects of the 2006 standards back to EPA for further review. Of particular note, EPA lowered the existing primary (health-based) annual PM_2.5 standard from 15 micrograms per cubic meter (µg/m³) to 12 µg/m³. However, EPA decided not to establish a new secondary standard for PM_2.5 of 28 or 30 deciviews after concluding that the existing secondary 24-hour PM_2.5 standard provides sufficient visibility protection. As part of the rulemaking, EPA also called for relocating certain PM monitors and revising the air quality index used to inform the public about daily PM pollution levels. The rule can be found in the January 15, 2013 Federal Register at: www.gpo.gov/fdsys.

DEC Revises State Agency Diesel Vehicle Rules

The New York State Department of Environmental Conservation (DEC) revised the rule implementing the Diesel Emissions Reduction Act (DERA) of 2006 to address court decisions rejecting key elements of the rule and recent legislative changes. DERA requires heavy-duty vehicles that are owned by, operated by or on behalf of, or leased by any state agency to implement various emission reduction measures, including using only heavy-duty vehicles that are equipped with best available retrofit technology (BART) to reduce PM emissions. In response to several court decisions, DEC clarified that the regulation, 6 NYCRR Part 248, applies only to state agencies and prime contractors, not subcontractors. Also, DEC replaced the three-part compliance schedule with a single compliance deadline of December 31, 2013 for using and maintaining BART.  The regulation can be found on DEC’s website at: www.dec.ny.gov/regulations/propregulations.html.

Other Recent Developments

Federal

• AIR: In response to litigation, EPA revised the National Emission Standard for Hazardous Air Pollutants for reciprocating internal combustion engines (RICE) to allow owners of certain stationary emergency RICE to operate them as part of a demand response program or for other limited purposes without losing their emergency exemption.
• AIR: A federal circuit court struck down EPA’s 2010 rule establishing significant impact levels and significant monitoring concentrations for PM_2.5 under the Prevention of Significant Deterioration (PSD) program, potentially limiting the ability of major sources that trigger PSD to avoid full-scale monitoring/modeling of ambient air impacts.
• WATER: The U.S. Supreme Court reaffirmed an earlier determination that the transfer of polluted water between two parts of the same water body does not require a wastewater discharge permit under the National Pollutant Discharge Elimination System permit program.
• WATER: The U.S. Army Corps of Engineers amended its nationwide permit (NWP) regulations to eliminate inconsistencies between the regulations and the typical NWP relating to the timing of preconstruction notifications and the expiration of verification letters.
• OTHER: EPA requested comment on its list of national enforcement initiatives to be undertaken in 2014-2016, which includes municipal sewage infrastructure, mineral processing, new source review, air toxics, energy extraction, and concentrated animal feeding operations.

New York State

• AIR: DEC proposed to withdraw a state implementation plan submitted for the 1987 coarse particulate matter (PM₁₀) NAAQS and make a clean data finding for Manhattan based on monitoring data from 2009-2011 showing PM₁₀ concentrations well below the NAAQS.