Environmental Regulatory Update – April 2018

Posted on April 13, 2018

Download the full report for April 6, 2018 (pdf)

Recent Developments (Updated April 6, 2018)

EPA Issues New Source Review Project Emissions Accounting Guidance

The U.S. Environmental Protection Agency (EPA) issued a memorandum entitled Project Emissions Accounting Under the New Source Review Preconstruction Permitting Program, announcing a change in its interpretation of the concept of project under new source review (NSR). In deciding whether emissions of a particular pollutant exceed the threshold for triggering NSR, EPA traditionally has considered only project-related emission increases during the first step in the review process, with reductions addressed during the subsequent emission netting step. With the recent guidance, EPA announced that it had reinterpreted the regulations and concluded that emission decreases associated with the project under review should be considered during the first step of the NSR review process rather than as part of the emission netting analysis. This change is expected to simplify NSR and enable more projects to avoid review. The memorandum can be found on EPA’s website at: www.epa.gov/nsr/project-emissions-accounting.

DEC Reproposes SEQRA Rule Changes

Following a lengthy public comment period, the New York State Department of Environmental Conservation (DEC) proposed additional revisions to its State Environmental Quality Review Act (SEQRA) regulations. DEC proposed revisions to 6 NYCRR Part 617 in 2017 with the goal of updating the SEQRA process by expanding the list of actions that do not require SEQRA review and updating and streamlining the SEQRA process. In its original proposal, DEC expanded the list of Type II actions (i.e., actions that do not require SEQRA review); revised the description of certain Type I actions to establish more realistic thresholds; required scoping to refine the list of issues that must be addressed in an environmental impact statement (EIS); and revised the rules governing preparation of an EIS. Following public comment, DEC dropped certain proposed actions from the Type II list, added climate change impacts to the list of EIS considerations, and made other changes to the proposed rules. DEC is accepting comment on the reproposed regulations, which can be found at: www.dec.ny.gov/permits/83389.html.

General Permit for Wineries, Breweries and Hard Cideries Under Development

In the wake of the dramatic expansion of New York’s craft beverage industry, DEC is accepting comment on a planned State Pollutant Discharge Elimination System general permit for discharges of process wastewater from wineries, breweries and hard cideries. The permit would apply to existing and newly licensed facilities that discharge process wastewater to groundwater from onsite wastewater treatment systems with a design peak flow of less than 10,000 gallons per day. Existing discharges would be allowed to continue using existing septic systems until a modification is needed to accommodate an expansion or if the system fails provided the owner/operator obtains a certification from a professional engineer that the system is operating soundly. New facilities, by comparison, would be required to install systems that are properly equipped and meet specified design standards and effluent criteria. In addition, owners/operators of both new and existing systems would be required to prepare and comply with an operation and maintenance plan and satisfy recordkeeping and reporting requirements. The advance notice regarding the proposed permit can be found on DEC’s website at:  www.dec.ny.gov/docs/water_pdf/wbc2018advnotice.pdf.

DEC Exercises Enforcement Discretion on New Solid Waste Regulations

DEC issued a letter announcing its intent to exercise enforcement discretion in relation to various aspects of its recent revisions to the State’s solid waste regulations, set forth at 6 NYCRR Part 360 et al. As part of its 2017 revisions to the solid waste regulations, DEC adopted major changes to the rules governing the management of construction and demolition (C&D) debris, which were criticized by industry for complicating reuse of these materials. In response to litigation, the DEC letter excludes from regulation as solid waste recognizable uncontaminated concrete and concrete products, asphalt pavement, brick, glass, soil and rock that are under the control of the generator, subject to various beneficial use determinations, and destined for and/or managed at facilities subject to the requirements of 6 NYCRR subpart 361-5 (C&D handling and recovery facilities). The letter also announced DEC’s intent to exercise enforcement discretion with respect to the use of tires on farms to anchor covers over agricultural feed, sampling requirements for fill material or residue leaving permitted C&D facilities, and the conditions for storing regulated medical waste in patient care or use areas. A link to the enforcement discretion letter can be found on DEC’s website at: www.dec.ny.gov/regulations/81768.html.

Other Recent Developments


  • AIR: EPA announced that it would not revise the National Emission Standards for Hazardous Air Pollutants (NESHAP) for leather finishing operations following its residual risk/periodic technology review, while proposing minor changes to reporting, startup, shutdown and malfunction, and other provisions of the rule.
  • AIR/CLIMATE CHANGE: As part of a larger effort to rescind Obama-era climate change initiatives, EPA proposed to withdraw its 2016 Control Techniques Guidelines (CTG) for the oil and natural gas industry, which was intended to serve as a basis for reasonably available control technology for existing sources in ozone nonattainment areas.
  • SOLID WASTE: EPA proposed revisions to its 2015 rule regulating the disposal of coal combustion residuals from utilities as solid waste to address provisions remanded back to the agency by a federal court, establish alternative performance standards, and make other changes.

New York State

  • WATER: DEC proposed to revise its water quality standards and regulations to implement the federal BEACH Act of 2000, setting enterococci and e-coli standards applicable during the primary contact recreation season for coastal recreation waters, including the Great Lakes and Atlantic coastal waters.
  • WATER: DEC is accepting comment on a pair of guidance documents relating to impingement and entrainment of aquatic species associated with cooling water intake structures.