Environmental Regulatory Update – May 2018

Posted on May 8, 2018

Download the full report for May 4, 2018 (pdf)

Recent Developments (Updated May 4, 2018)

DEC Revises Radioactive Materials Regulation

The New York State Department of Environmental Conservation (DEC) revised its regulation 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 regulation, set forth at 6 NYCRR Part 380, contains limits on public exposure to radioactive materials, requires parties to obtain permits for most releases of radioactive materials, and restricts disposal of the materials. With the recent rulemaking, DEC clarified the scope of the rule, including expanding it to cover the use of licensed radioactive materials in the environment (e.g., environmental studies); added, revised and deleted definitions; clarified what types of activities require a permit as well as the content of permit applications; limited airborne emissions to 10 millirems consistent with federal regulations and current DEC permit conditions; lowered the thresholds for reporting uncontrolled releases or events and specified the content and time frames for these reports; and added isotopes N-13 and O-15 to the tables of concentrations. The rule can be found at: www.dec.ny.gov/regulations/106149.html.

President Trump Directs Changes on NAAQS Implementation

President Trump issued a memorandum directing the U.S. Environmental Protection Agency (EPA) to implement specific actions to “ensure efficient and cost-effective implementation of the [national ambient air quality standards] program.” Among other things, the memorandum: set deadlines for taking final action on state implementation plans (SIPs) and new source review (NSR) permits; specified actions to provide relief to states required to address emissions beyond their control (e.g., exceptional events and international emissions); implemented measures to ensure accuracy of models; and required EPA to examine the NAAQS review process, commit to timely issuance of NAAQS implementing regulations and guidance, and review rules, guidance, memoranda, and procedures relating to SIPs and permitting. The Presidential Memorandum can be found at:  www.whitehouse.gov/presidential-actions/presidential-memorandum-administrator-environmental-protection-agency.

Federal Agencies Sign MOU on Expediting Major Infrastructure Project Reviews

The Trump administration issued a Memorandum of Understanding (MOU) establishing a cooperative relationship to facilitate the timely processing of environmental reviews and authorizations for major infrastructure projects under the “One Federal Decision” (OFD) policy established in Executive Order (EO) 13807. The EO compelled the federal government to take steps to establish discipline and accountability in the environmental review and permitting of major infrastructure projects. Under the OFD policy, the agencies must work together to develop a single permitting timetable, prepare a single environmental impact statement (EIS), sign a single record of decision (ROD), and issue all necessary decisions within 90 days of issuance of the ROD with the goal of completing the review process no later than two years after publication of the Notice of Intent to prepare the EIS. The MOU contains procedures for establishing a permitting timetable, clarifying agency roles and responsibilities, undertaking preliminary project planning, completing the scoping process (including establishing concurrence points), and resolving disputes among agencies. The MOU can be found at: www.whitehouse.gov/wp-content/uploads/2018/04/MOU-One-Federal-Decision-m-18-13-Part-2-1.pdf.

Other Recent Developments


  • AIR: EPA retained the existing NAAQS for nitrogen dioxide after finding that the current standards provide the requisite protection of public health with an adequate margin of safety.
  • CLIMATE CHANGE: EPA announced its intent to withdraw an earlier decision to retain the greenhouse gas emissions standards applicable to model year 2022-2025 light-duty motor vehicles after concluding that the current standards may be too stringent.
  • CLIMATE CHANGE: EPA announced that it would not apply restrictions on the use of certain hydrofluorocarbons adopted under the Significant New Alternatives Policy in the wake of a court decision finding that the agency lacked authority to enact the rule, which was targeted at addressing climate change not stratospheric ozone depletion.
  • CHEMICAL: New compliance dates have been set for EPA’s 2016 formaldehyde emission standards for composite wood products following a court decision rejecting the Trump administration’s attempt to extend the deadlines.
  • WATER: EPA issued its final 2016 Effluent Guidelines Program Plan identifying new or existing industrial wastewater discharge source categories for development or review of effluent guidelines and/or pretreatment standards.
  • ENFORCEMENT: EPA’s Office of Enforcement and Compliance Assurance withdrew an Obama administration memorandum that gave priority to innovative compliance measures in civil enforcement settlements.
  • OTHER: EPA proposed a regulation requiring that the data underlying certain studies offered to support major rulemakings be made available to the public in a manner that allows for independent validation with the purported goal of enhancing the public’s ability to understand and participate in the rulemaking process.

New York State

  • SOLID WASTE: Governor Cuomo advanced a program bill banning single-use plastic carryout bags at any point of sale to customers and barring local governments from imposing fees or other measures relating to such bags.
  • OTHER: DEC is accepting comment on its draft New York State Invasive Species Management Plan, which identifies the State’s processes and strategies for mitigating the spread of invasive species. In a related development, DEC is proposing to repeal its restrictions adopted to prevent the spread of the emerald ash borer in the face of evidence that the quarantine has been ineffective and is harming the timber industry by preventing the harvesting of timber before it is destroyed by the insects.