Download the full report for May 2012 (pdf)

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.

Download the full report for April 2012 (pdf)

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. 

Download the full report for March 2012 (pdf)

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.

Download the full report for February 2012 (pdf)

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.

In what we hope will become a regular feature of this website, we are presenting the first in a series of environmental regulatory “roundups” – an overview of developments in a particular environmental legal area occurring in the previous 12 months, with a hint of what to expect in the future. Subjects to be covered in upcoming months include: stormwater, climate change, and environmental remediation.

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.