Environmental Regulatory Update – August 2016

Posted on August 18, 2016

Download the full report for August 15, 2016 (pdf)

Recent Developments (Updated August 15, 2016)

DEC Proposes New Waste Oil Burning Rules

The New York State Department of Environmental Conservation (DEC) is proposing to replace its existing rules governing the burning of waste fuel for energy recovery with new rules that update key definitions and constituent requirements, remove outdated work practices, expand the number of facilities eligible to burn waste oil, update the monitoring, reporting, and recordkeeping requirements, and make other updates/corrections. Key changes to 6 NYCRR subpart 225-2 include: revising the definition of waste oil to eliminate any reference to chemical waste as well as the distinction between Waste A and Waste B fuels; lowering the constituent limits for PCBs and lead and deleting the existing 99% combustion efficiency requirement to address concerns regarding nitrogen oxide emissions; lowering the size of boilers that can burn waste fuel from 20 to 10 million British thermal units; and expanding the permitting exemption for “automotive maintenance/service facilities” to include junkyards and fleet maintenance facilities. The proposed rule can be found on DEC’s website at: www.dec.ny.gov/regulations/107051.html.

State BCP Rules Revised

DEC revised its Brownfield Cleanup Program (BCP) regulations, set forth at 6 NYCRR Part 375, to implement the 2015 amendments to the BCP statute limiting the eligibility of projects located in New York City for tangible property tax credits. The statute established new eligibility criteria for downstate projects and required DEC to adopt regulations defining two key terms “affordable housing” and “underutilized.” After DEC’s original definition of “underutilized” sparked widespread criticism, the Department proposed a less restrictive definition that allows for mixed use development, including residential uses, as well as making tax credits available for certain projects on vacant sites. Consistent with the 2015 law, DEC also revised the definition of “brownfield site” to include only sites with contamination exceeding DEC standards. The revisions can be found on DEC’s website at: www.dec.ny.gov/regulations/101908.html.

Hazardous Waste Manifest Fees Proposed

As part of its ongoing efforts to implement the Hazardous Waste Electronic Manifest Establishment Act, the U.S. Environmental Protection Agency (EPA) is seeking comments on a proposed rule establishing a framework for imposing fees on manifest users to recoup the costs of the e-Manifest system currently being developed by EPA. Under EPA’s proposal, user fees will be charged for all manifests, including those used to ship state-only regulated wastes. To simplify program administration, the fees will be imposed on commercial treatment, storage and disposal facilities rather than waste generators. Other issues addressed by the proposed rule include: alternative formulas for setting fees; adjustments necessary to ensure fees keep pace with program costs; possible premiums for complex manifest transactions, including incentives to encourage use of electronic rather than paper manifests; and fee processing issues. The proposed rule can be found in the July 26, 2016 Federal Register at www.gpo.gov/fdsys.

Other Recent Developments


  • AIR: A federal appeals court rejected a series of challenges by industry to the rules governing emissions of hazardous air pollutants from major and area source boilers and process heaters and commercial/industrial solid waste incinerators. At the same time, the court agreed with environmentalists that EPA did not comply with the Clean Air Act when it set standards for certain boilers, and went on to remand aspects of the rules back to EPA for further review/explanation of the agency’s decisions on certain issues.
  • CHEMICAL: The Department of Homeland Security published a document summarizing its new methodology for prioritizing reviews under the Chemical Facility Anti-Terrorism Standards, which require facilities that manage certain dangerous chemicals to review their activities and, in some cases, prepare security assessments and security plans.
  • OTHER: The Pipeline and Hazardous Materials Safety Administration proposed to expand the applicability of the oil spill response plan requirement to trains transporting a specified quantity of liquid petroleum oil as part of a series of initiatives to address concerns about the transportation of crude oil by rail.

New York State

  • BULK STORAGE/REMEDIATION: DEC adopted a second emergency rule adding perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS) and related substances to the list of hazardous substances in 6 NYCRR Part 597, subjecting facilities storing these substances in bulk to the State’s chemical bulk storage regulations and making sites with PFOA and PFOS contamination eligible for the State’s Superfund program.
  • REMEDIATION: In the wake of the discovery of PFOA in groundwater in Hoosick falls, Governor Cuomo recently signed legislation establishing a new toxic tort statute of limitations that allows personal injury actions for exposure to chemicals to be brought under New York’s existing statute of limitations for latent injuries or within three years of designation of a federal or State Superfund site, whichever is later.