News & Articles

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.

EBC Meeting on April 7, 2017

Please join us for our next meeting of the Environmental Breakfast Club where the topic will be “SEQRA – Proposed Regulatory Changes” presented by Kevin M. Young, Esq., Partner at Young/Sommer LLC.

 

Register here.

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.

Environmental Regulatory Update – February 2017

Download the full report for February 3, 2017 (pdf)

Recent Developments (Updated February 3, 2017)

Presidential Transition Affects EPA Rulemaking Activities

In the waning months of the Obama Administration, the U.S. Environmental Protection Agency (EPA) issued numerous proposed and final regulations and other documents/determinations, presumably with the goal of cementing its legacy before the change in administrations. Upon its arrival, the Trump Administration put a temporary freeze on further regulatory proposals while extending for 60 days the effective date of final regulations that not taken effect as of January 20, 2017 to provide time for further review. The Trump Administration also issued an executive order requiring agencies going forward to eliminate two regulations for every new rule enacted. At the same time, Congress is reviewing regulations enacted since late spring 2016 to determine whether they should be repealed under the Congressional Review Act (CRA), which gives Congress the authority to void agency rules within 60 session days of adoption by enacting resolutions of disapproval. Finally, in the early months of the 115th Congress, the House of Representatives passed several bills designed to limit agency rulemaking powers, including the controversial Regulations from the Executive in Need of Scrutiny (REINS) Act of 2017 (H.R. 26), which would require Congress to specifically approval all “major” agency rules before they can take effect.

EPA Proposes Key TSCA Implementation Rules

EPA proposed 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 a statutory mandate, EPA proposed rules implementing three key steps in the chemical review process. The first proposal 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 proposal establishes the procedures for identifying high priority chemicals that require evaluation. The third proposal establishes the procedures for conducting a risk evaluation for purposes of deciding whether a particular chemical requires regulation under TSCA. In a related development, EPA proposed regulations prohibiting the manufacture, processing, distribution in commerce and use of trichloroethylene in vapor degreasing and methylene chloride and N-methylpyrrolidone in paint removal after finding that these activities present an unreasonable risk to human health. Information about the TSCA reform statute can be found at: www.epa.gov/laws-regulations/summary-toxic-substances-control-act.

Major Changes to RMP Rules Adopted

EPA revised the risk management plan (RMP) regulations contained in 40 CFR Part 68 as part of an Obama administration initiative to review key emergency preparation and response programs in the wake of several high-profile industrial accidents. The RMP program requires facilities storing listed hazardous substances above threshold quantities to conduct a hazard assessment and prepare a RMP. The rule distinguishes between three levels of programs with Program 2 and 3 processes subject to more rigorous planning requirements because they pose the greatest risk. Key changes in the revised rule include: requiring facilities with Program 2 or 3 processes to conduct a root cause analysis after any incident that resulted or could have resulted in a catastrophic release and conduct or oversee an independent third-party audit following a reportable incident. In addition, certain industries will be required to evaluate safer production alternatives. EPA also is requiring facilities with Program 2 and 3 processes to coordinate with local emergency agencies at least once a year and conduct periodic field and tabletop exercises. Finally, the rule calls for providing additional RMP information to the public. The rule can be found in the January 13, 2017 Federal Register at: www.gpo.gov/fdsys.

DEC Issues Revised CAFO General Permits

The New York State Department of Environmental Conservation (DEC) issued revised general permits under the State Pollutant Discharge Elimination System (SPDES) program to address wastewater associated with concentrated animal feeding operations (CAFOs). Both permits replace the existing CAFO general permit, which expired on June 30, 2016 but was administratively extended. The first permit covers CAFOs that do not discharge from their production areas to surface waters while the second covers discharging CAFOs that are regulated under the Clean Water Act. Both permits require preparation and implementation of nutrient management plans as well as ongoing monitoring, reporting and recordkeeping. Major changes to the CAFO permitting process include: requiring public notice and comment on the NOI and farm-specific annual nutrient management plan for federally-regulated CAFOs; requiring advance notice to DEC whenever significant operational changes are made at the facility; and adding conditions regulating manure spreading during winter months, among other changes The CAFO general permits and related materials can be found on DEC’s website at: www.dec.ny.gov/permits/6285.html.

EPA Proposes CERCLA Financial Responsibility Rule

EPA proposed a new regulation establishing financial responsibility requirements under Section 108(b) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) with the goal of ensuring that the response costs, health assessment costs and natural resource damages associated with hazardous substance releases are borne by the responsible party. The law requires EPA to prioritize industries for regulation, develop standards for calculating the appropriate level of financial responsibility, and identify financial responsibility mechanisms. The current proposal contains the basic financial responsibility requirements as well as establishing specific rules for the hardrock mining industry. The same day, EPA announced its intent to publish a notice of proposed rulemaking on financial assurance requirements for chemical manufacturing, petroleum and coal products manufacturing, and electrical power generation, transmission and distribution. The proposed rule and notice of intent can be found in the January 11, 2017 Federal Register at: www.gpo.gov/fdsys.

Other Recent Developments

Federal                                                                

  • AIR: EPA streamlined, strengthened and clarified key aspects of the regional haze rule, which requires states to implement planning and other measures to reduce emissions of pollutants that impair visibility and track progress toward achieving natural background conditions.
  • AIR: EPA proposed to deny a petition from the states in the Northeast Ozone Transport Region (OTR) to include nine upwind states in the region after finding that other CAA provisions provide a better alternative for addressing interstate ozone transport.
  • REMEDIATION: EPA added a subsurface intrusion (SsI) component to the Hazard Ranking System, a change which will allow EPA to consider SsI when ranking sites for inclusion on the Superfund National Priority List.
  • CHEMICAL: EPA is requiring manufacturers/processors of nanoscale material to report certain information under TSCA to enable EPA to collect the data necessary to determine whether additional action is necessary to prevent health or environmental impacts from nanoscale materials.
  • WATER: The U.S. Army Corps of Engineers (ACOE) reissued nationwide permits (NWPs) used by the ACOE to approve certain common activities that disturb wetlands or waterways, adopting new NWPs for low-head dams and construction and maintenance of living shorelines and revising existing NWPs and general permit conditions.
  • WATER: EPA proposed public notification requirements for combined sewer overflows (CSOs) to the Great Lakes Basin to apprise local health officials and the public of possible sewage discharges following CSOs.
  • WATER: EPA requested comment on the results of its periodic review of existing National Primary Drinking Water Regulations, identifying eight drinking water standards as candidates for possible revision.
  • WATER: EPA proposed regulations lowering the acceptable content of lead in plumbing fixtures and making other changes to implement the Reduction of Lead in Drinking Water Act of 2011.
  • OCCUPATIONAL SAFETY AND HEALTH: The Occupational Safety and Health Administration significantly reduced the permissible exposure limit for beryllium, while adopting work practice, equipment and other changes.

New York State

  • AIR: DEC made available for comment draft guidance on issuing variances under the recently adopted distributed generation (DG) rule, which sets nitrogen oxide emission limits and other requirements for economic dispatch DG sources.
  • BULK STORAGE/REMEDIATION: DEC adopted a fifth emergency rule adding perfluoroctanoic acid (PFOA) and related compounds to the list of hazardous substances under 6 NYCRR Part 597, allowing the State to address sites contaminated with these chemicals under the State Superfund program.
  • GENERAL: DEC issued its Regulatory Agenda for 2017, identifying the regulatory changes DEC may pursue in the upcoming year.

Environmental Regulatory Update – January 2017

Download the full report for January 4, 2017 (pdf)

Recent Developments (Updated January 4, 2017)

EPA Adopts Formaldehyde Standards for Composite Wood Products

The U.S. Environmental Protection Agency (EPA) adopted a rule implementing the 2010 Formaldehyde Standards for Composite Wood Products Act, which established formaldehyde emissions standards for hardwood plywood, particleboard, and medium-density fiberboard (known collectively as composite wood products) and required EPA to develop regulations to implement the standards. The rule, which was adopted under the Toxic Substances Control Act (TSCA): identifies the wood products subject to regulation; establishes formaldehyde emission standards, testing and quality assurance/quality control requirements; requires certification by an EPA-accredited third party that composite wood products meet the emission standards; requires producers to sell their remaining stocks of noncompliant wood products within a year and label products as TSCA compliant going forward. The rule can be found in the December 12, 2016 Federal Register at: www.gpo.gov/fdsys.

OSHA Issues Recommended Safety Practices for Construction Job Sites

The Occupational Safety and Health Administration (OSHA) issued a new guidance document—Recommended Practices for Safety and Health Programs in Construction—to help employers establish a methodical approach for finding and fixing hazards before they cause injury or illness on the construction job site. The document identifies seven core program elements followed by action items, which are broken down into specific tasks. The seven core program elements are: management leadership, worker participation, hazard identification and assessment, hazard prevention and control, education and training, program evaluation and improvement, and communication and coordination for employers on multiemployer work sites. The document updates OSHA’s recommended practices guidelines to reflect changes in the workplace, including new construction techniques, materials and equipment, greater workforce diversity, and increased temporary and contract employment. The guidelines can be found on OSHA’s website at: www.osha.gov/shpguidelines/index.html.

EPA Takes Steps to Implement New TSCA Law

EPA proposed its first major rules following Congress’ 2016 law reforming the Toxic Substances Control Act. 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 a statutory mandate, EPA recently identified the first 10 chemicals slated for risk evaluations under the revised TSCA statute: 1,4-dioxane, 1-bromopropane, asbestos, carbon tetrachloride, cyclic aliphatic bromide cluster, methylene chloride, n-methylpyrrolidone, pigment violet 29, tetrachloroethylene (i.e., perchloroethylene), and trichloroethylene (TCE). In a related development, EPA proposed to prohibit the manufacture, processing, distribution in commerce and use of TCE in aerosol degreasing and in spot cleaning in dry cleaning facilities after concluding that these activities present an unreasonable risk to human health. Information about the TSCA reform statute can be found at: www.epa.gov/laws-regulations/summary-toxic-substances-control-act.

Other Recent Developments

Federal                                                                

  • AIR: EPA proposed revisions to three National Emission Standards for Hazardous Air Pollutants following mandatory residual risk/periodic technology reviews: nutritional yeast manufacturing, publicly owned treatment works, and chemical recovery combustion sources at kraft, soda, sulfite and stand-alone semichemical pulp mills.
  • CLIMATE CHANGE: EPA revised the greenhouse gas reporting rule to streamline and improve implementation and clarify and update certain provisions, including removing reporting requirements for facilities that report little or no emissions.
  • CLIMATE CHANGE: EPA adopted renewable fuel standards for gasoline and diesel transportation fuel produced or imported for 2017 at levels below those mandated by the Clean Air Act statute but higher than those in previous years.
  • WATER: EPA revised the regulations governing small municipal separate storm sewer systems (MS4s), establishing new procedures for adopting and implementing the MS4 general permit to ensure adequate public notice.
  • WATER: EPA issued a report containing the results of its study of the impacts of hydraulic fracturing on drinking water at five stages in the fracturing process: water acquisition, mixing of water with chemicals, fluid injection, collection of return water and wastewater management and disposal.

New York State

  • WATER: The New York State Department of Health issued a second emergency rule continuing lead testing requirements for school drinking water pending proposal and adoption of a permanent rule.
  • WATER: The New York State Department of Environmental Conservation (DEC) is accepting comment on new guidance for handling direct disposal of snow to surface waters, which includes best management practices for upland snow disposal and guidance on direct disposal into surface waters.
  • OTHER: DEC adopted regulations establishing standards and procedures for modifying or extinguishing conservation easements—real property interests owned by the State that limit or restrict development, management or use of property to protect environmental interests.

Environmental Regulatory Update – December 2016

Download the full report for December 9, 2016 (pdf)

Recent Developments (Updated December 9, 2016)

DEC Adopts Distributed Generation Regulation

The New York State Department of Environmental Conservation (DEC) adopted an air emission rule for distributed generation (DG) sources—stationary reciprocating or rotary internal combustion engines that feed the distribution grid or produce electricity for use at host facilities or both. The rule, which is set forth at 6 NYCRR Part 222, applies to owners/operators of DG sources at non-major facilities that have maximum mechanical output ratings of 200 horsepower (hp) or more in the New York City metropolitan area or 400 hp or more elsewhere. It distinguishes between emergency generators and so-called “economic dispatch sources,” i.e., DG sources used to reduce energy costs or ensure a reliable energy supply. Economic dispatch sources covered by the rule must meet specific nitrogen oxide emission standards and, in some cases, particulate matter standards. Sources that cannot meet the standards have five alternative compliance options. Owners/operators of emergency generators must comply with more limited maintenance (i.e., tune-up) and recordkeeping requirements. The rule, which contains extremely short compliance deadlines, can be found on DEC’s website at: www.dec.ny.gov/regulations/104487.html.

EPA Overhauls Hazardous Waste Generator Rules

For the first time in several decades, the U.S. Environmental Protection Agency (EPA) has adopted major changes to its hazardous waste generators rules to update, simplify and correct the regulations and address regulatory gaps. Major changes include: relocating  generator requirements to a single section; replacing the term “conditionally exempt small quantity generator” with “very small quantity generator” (VSQG) and adding/revising other definitions; clarifying/expanding the rules governing hazardous waste determinations; establishing provisions to address episodic waste generation activities; requiring small quantity generators and large quantity generators (LQGs) to renotify EPA concerning their waste activities every four years; allowing VSQGs to send hazardous waste to LQG facilities under their control; revising waste accumulation/marking rules; and updating preparedness/prevention requirements. The revisions can be found in the November 28, 2016 Federal Register at: www.gpo.gov/fdsys.

Major Revisions to Air Conditioning and Refrigeration Repair Rules Adopted

EPA adopted major changes to its air conditioning and refrigeration repair rules under Section 608 of the Clean Air Act to update the requirements for minimizing emissions of ozone-depleting substances (ODS) and expand them to include ODS substitutes, many of which have a high global warming potential (GWP) and so contribute to climate change. Changes include: specifically revising the regulations to include non-exempt ODS substitutes; lowering the leak threshold rate that triggers the need for equipment repairs; requiring regular leak inspections for certain larger equipment; and expanding recordkeeping requirements. The rulemaking is part of a larger effort to stem the increase in the use of hydrofluorocarbons and other ODS substitutes with a high GWP; it can be found in the November 18, 2016 Federal Register at: www.gpo.gov/fdsys.

DEC Proposes New MS4 General Permit

DEC proposed a new State Pollutant Discharge Elimination System (SPDES) General Permit for Stormwater Discharges from Municipal Separate Storm Sewer Systems (MS4s) to replace its existing general permit in the wake of a federal court decision which found that the existing federal MS4 program, upon which the State program is based, did not provide for adequate public notice and comment or ensure adequate reductions in pollutants. The new, more prescriptive proposed permit requires all covered traditional and non-traditional MS4s to seek coverage under the general permit, prepare and implement a written stormwater management program (SWMP), and designate a SWMP coordinator to oversee the program, among other requirements. It also contains detailed provisions governing implementation of six categories of minimum control measures required to be included in each SWMP as well as special requirements applicable to permittees that discharge to impaired waters. The draft permit and related documents can be found on DEC’s website at: www.dec.ny.gov/chemical/41392.html.

Other Recent Developments

Federal                                                                

  • AIR: EPA proposed a rule establishing nonattainment area classification thresholds and implementation requirements for the 2015 ozone national ambient air quality standards (NAAQS) that relies largely on the area classification framework and state implementation plan requirements applicable to the 2008 ozone NAAQS.
  • HAZARDOUS WASTE: EPA amended the hazardous waste regulations relating to the import and export of hazardous waste from and into the United States to improve consistency among procedures and facilitate electronic documentation.
  • WATER: EPA published a final list of contaminants to be studied for purposes of deciding whether to set standards under the Safe Drinking Water Act (SDWA), which includes 97 chemical groups and 12 microbial contaminants.
  • WATER: EPA issued a Drinking Water Action Plan, identifying priority areas and action items for improving the safety and reliability of the nation’s drinking water system.
  • OCCUPATIONAL SAFETY AND HEALTH: The Occupational Safety and Health Administration (OSHA) overhauled its standards for walking-working surfaces and fall protection equipment, a rulemaking that covers floors, ladders, stairways, runways, dockboards, roofs, scaffolds and elevated work surfaces and walkways.
  • OCCUPATIONAL SAFETY AND HEALTH: OSHA issued a Small Entity Compliance Guide for the Respirable Crystalline Silica Standard for Construction that describes each provision of the new rule and provides guidance to help employers understand the requirements of the standard.

New York State

  • BULK STORAGE/REMEDIATION: DEC adopted a fourth emergency rule adding perfluorooctanoic acid and related substances to the list of hazardous substances regulated under the chemical bulk storage program, allowing DEC to regulate the bulk storage of these substances and remediate contaminated sites under New York’s Superfund program.
  • WATER: DEC revised its SPDES regulations to implement New York’s Sewage Pollution Right-to-Know Act, which requires publicly owned treatment works and publicly owned sewer systems to report discharges of untreated or partially treated sewage to health departments, local governments and the public in accordance with a specified schedule.
  • WATER: DEC revised its SPDES General Permit for Point Source Discharges to Surface Waters of New York from Pesticide Applications which applies to operators engaged in the application of pesticides labeled for aquatic uses to, in or over surface waters.

Cassadaga Wind Article 10 Application First Deemed Complete

Cassadaga Wind’s Application is the first to be deemed “complete” by the New York Siting Board under Public Service Law Section 164 since the enactment of the “new” Article 10 in 2011. The Cassadaga Wind Project is an approximately 126 MW wind powered electric generating facility sponsored by Pittsburgh, PA based EverPower Wind Holdings and is proposed to be located in the Towns of Arkwright, Stockton, Cherry Creek and Charlotte, Chautauqua County, New York. EverPower is the owner of the operating Howard Wind Project in Steuben County, New York and is currently also sponsoring the Baron Wind Project, an approximately 300 MW wind powered electric generating facility proposed to also be located in Steuben County, New York. Doug Ward and Jim Muscato have served as counsel for EverPower’s operating Howard project and both the proposed Cassadaga and Baron Winds facilities in New York.

Cassadaga Wind initiated the Article 10 process in November 2014 with the filing of its Public Involvement Program plan for the Facility. The Application was submitted on May 27, 2016 after an approximately 8-month pre-application scoping process which included the filing of a Preliminary Scoping Statement and negotiated stipulations with various state agencies and local municipal parties regarding the scope of the studies and information to be included in the Application. The Application was deemed “complete” on November 28, 2016. As a result of deeming the Application complete, the Siting Board has one year to issue a certificate permitting the construction and operation of the Facility. This represents a significant milestone for EverPower and the Project and is an important milestone under New York’s Article 10 siting process.

EverPower was assisted in the Article 10 process by Young/Sommer, Jim Muscato and Jessica Klami, counsel of record, and its lead consultant Environmental Design and Research (“EDR”) who managed and prepared the Article 10 Application and supplemental filings.

Environmental Regulatory Update – November 2016

Download the full report for November 4, 2016 (pdf)

Recent Developments (Updated November 4, 2016)

EPA Retains Lead NAAQS

The U.S. Environmental Protection Agency (EPA) declined to revise the existing lead national ambient air quality standards (NAAQS) after finding that the current standard of .15 micrograms per cubic meter provides the requisite protection of public health with an adequate margin of safety. EPA also found that the available evidence did not support lowering the secondary standard to address ecosystem (i.e., welfare) effects. The final rule can be found in the October 18, 2016 Federal Register at: www.gpo.gov/fdsys.

OSHA Issues Recommended Safety Practices

The Occupational Safety and Health Administration (OSHA) issued a new guidance document—Recommended Practices for Safety and Health Programs—to help employers establish a methodical approach for finding and fixing hazards before they cause injury or illness. The document identifies seven core program elements followed by action items, which are broken down into specific tasks for accomplishing the particular action item. The seven core program elements are: management leadership, worker participation, hazard identification and assessment, hazard prevention and control, education and training, program evaluation and improvement, and communication and coordination for host employers, contractors and staffing agencies. The document updates OSHA’s 1989 recommended practices guidelines to reflect changes in the workplace, including the shift from a manufacturing to a service base, the introduction of new hazards, greater workforce diversity, and increased temporary and contract employment. The guidelines can be found on the OSHA website at: www.osha.gov/shpguidelines/index.html.

Other Recent Developments

Federal                                                                

  • AIR: EPA updated its 2011 multi-state Cross-State Air Pollution Rule cap-and-trade program regulations to address interstate emission transport with respect to the 2008 ozone NAAQS after finding that ozone season NOx emissions in 22 eastern states adversely affect the ability of downwind states to attain and maintain the ozone standard.
  • AIR: EPA revised the public notice provisions for permits issued under the Title V and New Source Review permit programs, replacing its newspaper publication requirement with electronic notice, while giving delegated states the option of continuing to rely on newspaper publication if they choose.
  • CLIMATE CHANGE: EPA and the National Highway Traffic Safety Administration adopted stricter greenhouse gas emission standards and improved fuel efficiency standards for medium and heavy-duty trucks and buses, including semi trucks, certain trailers, heavy-duty pickup trucks and vans, and vocational vehicles, such as dump and cement trucks, buses, emergency vehicles and tow trucks. The standards, which will be phased in from 2018 to 2027, are intended to be “technology-forcing,” with manufacturers expected to use technologies that are now under development or not yet widely deployed to achieve the standards.
  • REMEDIATION: EPA issued guidance intended to encourage responsible parties to pursue greener alternatives when developing and implementing remedial activities under the federal Superfund program, while continuing to meet the threshold requirements of protecting public health and the environment and complying with applicable or relevant and appropriate requirements.
  • WATER: EPA announced a series of measures to assist communities with long-term stormwater management, including a draft guide to help communities develop a plan that integrates stormwater management with communities’ broader plans for economic development, infrastructure investment, and environmental compliance.
  • GENERAL: EPA issued its EJ 2020 Action Agenda, a strategic plan for advancing environmental justice throughout the agency for the period 2016-2020 that builds on the foundation established by EPA’s Plan EJ 2014.

Jim Muscato Presents on PSL Article 10 at 10th Annual ACE-NY Conference

Jim Muscato recently presented at the Alliance for Clean Energy’s 10th Annual Fall Conference on challenges facing renewable energy developers under New York’s Article 10 permitting and siting law.  The conference focused on the opportunities and challenges in achieving Governor Cuomo’s ambitious clean energy goals and a clean energy future for New York State. Jim’s presentation focused on his experience representing developers proceeding through the Public Service Law Article 10 siting process and challenges associated with the review, timing of certification, and the ability of the State to meet the State energy policy mandate of 50% of the State’s electric generation from renewables by 2030.

Dean S. Sommer Nominated for Who’s Who Legal Environment 2016

Congratulations to Dean S. Sommer who was recently nominated by his peers as one of the world’s leading practitioners in the Environment field.  The August 2016  publication, Who’s Who Legal Environment 2016, identifies Mr. Sommer as one of 730 practitioners from 389 firms across 43 different countries who can truly be considered a leader in the Environment field.   www.whoswholegal.com