Environmental Regulatory Update – February 2018

Posted on February 13, 2018

Download the full report for February 2, 2018 (pdf)

Recent Developments (Updated February 2, 2018)

EPA Rescinds Once in, Always In Guidance under NESHAP Program

The U.S. Environmental Protection Agency (EPA) issued a memorandum announcing repeal of its controversial “once in, always in” (OIAI) guidance under the Clean Air Act’s (CAA) National Emission Standards for Hazardous Air Pollution (NESHAP) program. The NESHAP program regulates both major and area stationary sources of hazardous air pollutants (HAPs), with generally stricter emission standards for sources with the potential to emit at least 10 tons per year (tpy) of any single HAP or 25 tpy of any combination of HAPs. In 1995, EPA issued guidance declaring that major sources could not cap emissions (i.e., become area sources) once they were required to comply with an emission limit or other substantive requirement of the applicable major source NESHAP. With the recent memorandum—entitled Reclassification of Major Sources as Area Sources under Section 112 of the Clean Air Act—EPA rescinded its once in, always in policy after finding that it violates the plain language of the CAA, which allows major sources to accept permit limitations and become area sources and does not contain any temporal limitations on capping. The policy change will arguably allow numerous sources to limit their potential emissions below major source thresholds and become area sources. Critics charge that the change will allow sources to avoid major source NESHAPs, resulting in more pollution. Additional information about the OIAI policy withdrawal can be found on EPA’s website at: www.epa.gov/stationary-sources-air-pollution/reclassification-major-sources-area-sources-under-section-112-clean.

DOH Drinking Water Rule Updated

The New York State Department of Health (DOH) revised 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 revised the cross-connection control rules and water supply emergency plan requirements to address changes to the New York Public Health Law. The rule can be found in the January 17, 2018 State Register at: https://docs.dos.ny.gov/info/register/2018/jan17/toc.html.

Other Recent Developments


  • GENERAL: EPA issued an interim guidance document addressing the relationship between EPA and the states, indicating that EPA will generally defer to authorized states on environmental enforcement matters, except in specific situations.
  • AIR: EPA designated most of New York State as attainment/unclassifiable for sulfur dioxide (SO2) under the 2010 national ambient air quality standards in the third part of a four-part scheme to identify SO2 nonattainment areas.
  • AIR: EPA proposed updates/corrections to the regulations for source testing of emissions under the NESHAP, New Source Performance Standards and other programs.
  • REMEDIATION: EPA released its first list of National Priorities List sites with the greatest expected redevelopment and commercial potential following a 2017 Superfund task force report emphasizing the importance of promoting redevelopment and community revitalization as part of the Superfund program.

New York State

  • SOLID WASTE: The New York State Plastic Bag Task Force issued a report assessing possible options for addressing single-use plastic bags in the wake of a 2009 law requiring certain large stores and retail chains that provide bags to customers to collect bags and arrange for recycling. The report identifies eight options for managing single-use plastic bags, including continuing or enhancing the current program or imposing fees and/or bans.
  • HYDRAULIC FRACTURING: The Delaware River Basin Commission proposed regulations banning hydraulic fracturing in the Delaware River Basin and imposing other restrictions on the import and export of water for hydraulic fracturing purposes. The Basin includes the parts of New York, New Jersey, Pennsylvania and Delaware that discharge to the Delaware River.
  • GENERAL: The New York State Department of Environmental Conservation (DEC) issued its Regulatory Agenda for 2018, identifying the regulatory changes DEC may pursue in the upcoming year. The agenda includes plans for new regulations addressing oil and gas sector emissions, waste water reuse, water well registration and reporting, and salt storage. Dozens of existing regulations are listed for possible revision.