Environmental Regulatory Update – December 2018

Posted on December 19, 2018

Download the full report for December 11, 2018 (pdf)

 Recent Developments (Updated December 11, 2018)

DEC Proposes Update to Visual Impact Assessment Policy

The New York State Department of Environmental Conservation (DEC) is accepting comments on proposed changes to its program policy on evaluating the significance of visual impacts under the State Environmental Quality Review Act (SEQRA). The program policy—which applies when an action is proposed within the viewshed of a designated aesthetic resource and DEC is lead agency—establishes the following six-step process for evaluating a project’s visual impacts: verify the project sponsor’s inventory of visual resources, which includes specific types of aesthetic resources of statewide significance; verify the sponsor’s inventory of viewer characteristics, visual character and aesthetic value; verify the methods used to assess visual impacts; determine or verify the sponsor’s assessment of the potential significance of the visual impact (i.e., the magnitude of the impact and its importance in terms of the number of people/geographic area affected); review measures needed to avoid, mitigate or offset the impact, if significant; and enforce mitigation measures. Significant changes from the existing policy include clarifying when assessments are necessary, updating the list of aesthetic resources, and clarifying how visual impacts fit into the SEQRA framework, among many others. The draft Program Policy can be found on DEC’s website at: www.dec.ny.gov/permits/115147.html.

EPA Finalizes NSR Project Aggregation Policy

The U.S. Environmental Protection Agency (EPA) has concluded reconsideration of its 2009 action clarifying when activities must be considered together (i.e., “aggregated”) for purposes of determining whether New Source Review (NSR) applies.  Assessing NSR for modifications at a major source is a two-step process, with Step 1 focusing on emissions from the project itself while Step 2 looks at contemporaneous emission increases and decreases. Over the years, significant questions have arisen about what activities are part of the same project and thus should be considered during Step 1 of NSR. Traditionally, EPA looked at a wide variety of factors in assessing whether changes are part of the same project, including timing. In 2009, EPA announced an interpretation of the existing NSR regulations that called for sources and reviewing authorities to aggregate emissions from nominally separate programs together when they are “substantially related,” with a focus on economic and technical dependence. However, the Obama Administration EPA announced that it was considering revoking the 2009 action and returning to its earlier approach. With the recent notice, EPA ended its reconsideration and implemented the 2009 interpretation. The notice announcing EPA’s final action can be found in the November 15, 2018 Federal Register at: www.govinfo.gov.

Changes Proposed to Wood Heater NSPS

EPA is considering changes to its 2015 rule for new wood heaters that updated the existing New Source Performance Standards (NSPS) for adjustable burn rate wood stoves (40 CFR Part 60, subpart AAA) while adopting standards for new wood-fired residential hydronic heaters and forced air furnaces (subpart QQQQ). Among other things, EPA is proposing to add a two-year sell through period that would allow all affected hydronic heaters and forced air furnaces manufactured before May 15, 2020 to be sold at retail through May 15, 2022 while accepting comment on whether to set a similar sell through date for all affected new residential wood heaters. In a related development, EPA published an advance notice of proposed rulemaking (ANPR) seeking comment on issues arising from the 2015 standards relating to test methods, the costs and/or feasibility of the new emission limits and compliance date, new electronic reporting requirements, and other changes. The proposed rule and ANPR can be found in the November 30, 2018 Federal Register at: www.govinfo.gov.

Other Recent Developments


  • AIR: EPA finalized the rules for states implementing the 2015 ozone national ambient air quality standards (NAAQS), which contain requirements relating to attainment demonstrations and extensions, reasonable further progress, reasonably available control technology implementation, major nonattainment NSR, and other state implementation plan elements. The program largely tracks that for the 2008 ozone NAAQS.
  • GENERAL: EPA issued a memorandum identifying best practices for compliance and enforcement-related information requests that covers issues such as minimizing transaction costs, using the appropriate tone, clearly communicating the process for responding, and providing the regulated community with adequate time to respond.
  • CHEMICAL: EPA is proposing to amend the release notification regulations under the Emergency Planning and Community Right-to-Know Act to add a reporting exemption for air emissions from animal waste at farms in the wake of a federal law establishing a comparable exemption to the release reporting requirements under the Comprehensive Environmental Response, Compensation and Liability Act.

 New York State

  • CLIMATE CHANGE: DEC is accepting comment on a possible rulemaking barring certain uses of hydrofluorocarbons in refrigerants, aerosol propellants, and foam-blowing agents in the wake of an EPA decision to roll back a comparable federal prohibition.
  • CLIMATE CHANGE: DEC is seeking stakeholder input on possible regulations to limit emissions of volatile organic compounds and methane from sources in the oil and gas sector in the wake of a Trump administration proposal to withdraw federal guidance to the states on establishing reasonably available control technology for sources in this category.
  • WATER: The New York State Office of the Comptroller issued a report assessing whether the New York State Department of Health (DOH) is providing effective oversight of New York’s public water systems (PWS). The report found, among other things, that DOH offices did not always take appropriate and/or timely action to ensure that PWS properly notify the public when violations of maximum contaminant levels occur and that a key database for tracking drinking water information was not being consistently updated.