Environmental Regulatory Update – September 2018

Posted on September 24, 2018

Download the full report for September 7, 2018 (pdf)

Recent Developments (Updated September 7, 2018)

DEC Adopts SEQRA Revisions

The New York State Department of Environmental Conservation (DEC) revised its State Environmental Quality Review Act (SEQRA) regulations, set forth at 6 NYCRR Part 617, to expand the list of actions that do not require SEQRA review and update and streamline the SEQRA process. DEC’s revised list of Type II actions includes green infrastructure retrofits, certain solar energy projects, renovation and reuse of existing structures, installation of anaerobic digesters at publicly owned landfills, and sale/conveyance of certain real property by public auction, among other actions. DEC also: 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, including adding climate change impacts to the list of EIS considerations. The regulations can be found at: www.dec.ny.gov/permits/83389.html.

EPA Proposes Substitute for Obama Administration’s Clean Power Plan

The U.S. Environmental Protection Agency (EPA) proposed guidelines to limit greenhouse gas (GHG) emissions from existing power plants to replace the Obama Administration’s controversial Clean Power Plan (CPP). EPA adopted the CPP under the Clean Air Act’s (CAA) New Source Performance Standards (NSPS) program, which requires EPA to set emission guidelines for existing sources based on the “best system of emission reduction” (BSER). According to the Trump Administration EPA, the CPP is not authorized by the CAA because it relies on GHG emission reduction measures, such as renewable energy initiatives, implemented at sources other than regulated power plants. In its place, the proposed Affordable Clean Energy (ACE) rule calls for establishing BSER for GHG emissions from existing coal-fired power plants based solely on heat rate (i.e., efficiency) improvements that can be applied at the source. In addition, EPA proposed changes to New Source Review applicability for power plants that would allow states to exclude from NSR modifications that do not cause an increase in the unit’s hourly emissions. The proposed ACE rule can be found in the August 31, 2018 Federal Register at: www.gpo.gov/fdsys.

EPA Proposes Rollback of Vehicle GHG Emission Standards

EPA and the National Highway Traffic Safety Administration are proposing to roll back federal fuel economy and GHG emission standards for model year 2021-2026 passenger cars and light-duty trucks, reversing an earlier determination by EPA that the emission standards for model year 2022-2025 vehicles in the 2012 rule were feasible at reasonable cost using existing and emerging technologies. In the recent notice, EPA proposed to freeze the standards as of 2020 although it is accepting comment on alternatives that call for increasing GHG emission standards from 0.5% to 2.0% per year for passenger cars and from 0.5% to 3.0% for light-duty trucks from 2021 through 2026. EPA also called for rescinding the waiver granted to California that is necessary for the state to continue implementing the existing, stricter GHG emission standards, setting the stage for litigation. EPA’s proposed rule can be found in the August 24, 2018 Federal Register at: www.gpo.gov/fdsys.

Other Recent Developments


  • AIR: EPA completed its residual risk/periodic technology review of the National Emission Standards for Hazardous Air Pollutants (NESHAP) for portland cement manufacturing facilities, concluding that the risks remaining after application of the existing technology-based standards were acceptable and that no changes were necessary to address technological improvements.
  • AIR: EPA proposed revisions to the clay ceramic manufacturing NESHAP in response to a petition for reconsideration, including revising various monitoring and other compliance demonstration requirements.
  • SOLID WASTE: EPA revised its 2015 rule regulating the disposal of coal combustion residuals (i.e., coal ash) from utilities to establish alternative performance standards for groundwater monitoring, authorize issuance of groundwater monitoring waivers, and make other changes.
  • WATER: EPA and the U.S. Army Corps of Engineers published a supplemental notice of proposed rulemaking clarifying and seeking additional comment on its July 2017 proposal to rescind the 2015 joint rule redefining “waters of the United States” in the wake of complaints that the original notice was unclear in several key respects.
  • OCCUPATIONAL SAFETY AND HEALTH: The Occupational Safety and Health Administration (OSHA) proposed to rescind a new requirement that employers with 250 or more employees electronically submit OSHA Forms 300 and 301 to the agency after concluding that the information necessary to identify high-hazard workplaces can be obtained from Form 300A (Summary of Work-Related Injuries and Illnesses).

New York State

  • AIR: DEC announced its new Clean Transportation NY program, which will be funded by the State’s share of EPA’s settlement with Volkswagen of charges that the company cheated on emission testing of its diesel cars. Under the program, the State’s $127.7 million share of the settlement proceeds will be spent primarily on projects to encourage electrification of the State’s transportation system.
  • SOLID WASTE: DEC announced a new strategy to address the environmental impacts of composting and mulching operations on Long Island following a series of studies raising concerns about the groundwater and other impacts of these facilities.
  • WATER: DEC proposed to revise the State Pollutant Discharge Elimination System general permit for wastewater associated with concentrated animal feeding operations to address an April 2018 court decision which held that the current permit does not provide an opportunity for public comment on mandatory nutrient management plans in violation of the Clean Water Act.
  • OTHER: DEC repealed its existing restrictions on the movement of ash wood adopted to prevent the spread of the invasive emerald ash borer (EAB) after concluding that the restrictions had been ineffective and were complicating efforts to harvest ash trees before they are destroyed by the EAB.