Posted on October 25, 2019
Download the full report for October 18, 2019 (pdf)
Recent Developments in Environmental Regulatory News (October 18, 2019)
New York Enacts Comprehensive Climate Change Law
Governor Andrew Cuomo signed the Climate Leadership and Community Protection Act (A.8429/S.6599), which requires reductions in statewide greenhouse gas (GHG) emissions to 60% of 1990 levels by 2030 and 15% of 1990 levels by 2050. To achieve these goals, the Act calls for establishing a Climate Action Council, which will be responsible for preparing a scoping plan containing recommendations on regulations and other measures to achieve necessary GHG reductions in 12 general categories identified by statute. The New York State Department of Environmental Conservation (DEC) must then adopt regulations to ensure compliance with the statewide emission reduction limits and assist other state agencies in developing their own regulations, as necessary. DEC also must prepare an annual inventory of GHG emissions expressed in tons of carbon dioxide equivalent. With respect to energy, the law specifically requires the Public Service Commission to establish a statewide renewable energy program by 2021 that requires 70% of electricity to be generated from renewable sources by 2030 and 100% by 2040. More generally, the law includes provisions targeted at protecting disadvantaged communities, including a mandate that state agencies may not disproportionately burden such communities when considering permitting, licensing and other decisions. If fully implemented, the law will affect virtually every aspect of New York’s economy, including electricity generation, industry, land use, transportation, and buildings. It can be found on the Assembly website at: https://nyassembly.gov.
DEC Proposes Updated Crematory and MSW Incinerator Standards
DEC proposed revisions to its incinerator standards, including updating the standards for crematories and adding a new subpart to limit nitrogen oxide (NOx) emissions from municipal solid waste (MSW) combustion units. With respect to crematories, DEC is proposing to repeal and replace 6 NYCRR Subpart 219-4, Incinerators, Crematories, while sunsetting Subparts 219-5 and 219-6, a change that will require existing units regulated under these subparts to comply with stricter standards. Key provisions include: establishing more stringent particulate matter emission limits; revising the temperature limits to better reflect actual operating conditions; limiting the materials that can be burned and requiring funeral directors to certify that there are no prohibited materials present with the remains; and requiring ambient air impact analyses only if specifically requested by DEC. As part of the same rulemaking, DEC proposed a new Subpart 219-10 that imposes 24-hour and annual NOx emission limits for MSW incinerators, together with performance testing, continuous emission monitoring and other requirements. The proposed rules can be found on DEC’s website at: www.dec.ny.gov/regulations/118193.html.
EPA and NHTSA Clarify Scope of Federal Preemption of Vehicle Standards
The U.S. Environmental Protection Agency (EPA) and National Highway Traffic Safety Administration (NHTSA) adopted a rule clarifying the scope of federal preemption of state motor vehicle GHG emission standards and announcing the withdrawal of a waiver granted to California allowing it to implement stricter state standards. Last year, EPA proposed to roll back the Obama administration’s increasingly stringent light-duty vehicle emission standards. In support of that proposal, the agencies adopted Part One of its “Safer Affordable Fuel-Efficient (SAFE) Vehicle Rule,” addressing issues relating to federal preemption of state standards under both the Energy Policy and Conservation Act (EPCA)—which addresses fuel economy—and the Clean Air Act (CAA). Among other things, the agencies declared that the EPCA preempts state and local governments from adopting standards relating to fuel economy and that this preemption extends to state and local laws limiting carbon dioxide (CO2) emissions since CO2 is an inevitable byproduct of operating motor vehicles and thus “related to” fuel economy. EPA also confirmed that a CAA waiver authorizing California to adopt its own standards does not waive EPCA preemption. Based on these and other arguments, EPA withdrew its January 2013 waiver authorizing California’s GHG and zero emission vehicle (ZEV) programs, prompting a lawsuit by California and other states that are currently implementing California’s strict GHG standards. The rule can be found in the September 27, 2019 Federal Register at www.govinfo.gov. EPA plans to adopt Part 2 of the SAFE rule containing new vehicle emission standards for light-duty vehicles shortly.
EPA Proposes NESHAP Residual Risk/Periodic Technology Findings
Since early September 2019, EPA has proposed the results of its residual risk/periodic technology review of the National Emission Standards for Hazardous Air Pollutants (NESHAP) for seven source categories, several of which cover hundreds of sources each. The standards—which are found at 40 CFR Part 63—include: Plywood and Composite Wood Products (subpart DDDD); Cellulose Products Manufacturing (subpart UUUU); Lime Manufacturing Plants (subpart AAAAA); Paper and Other Web Coating (subpart JJJJ); Taconite Iron Ore Processing (subpart RRRRR); Iron and Steel Foundries (subpart EEEEE, major source; subpart ZZZZZ, area source); and Generic Maximum Achievable Control Technology (MACT) for Ethylene Production (subpart YY). In each case, after reviewing the existing major source standard, EPA concluded under CAA § 112(f) that the risks remaining after application of the NESHAP were acceptable and that the standard protects public health with an ample margin of safety. With the exception of the ethylene production standard, EPA found under CAA § 112(d)(6) that there were no cost-effective developments in practices, processes or control technologies and that no changes in the NESHAPs were necessary to address technological improvements. Each rule also included revisions relating to startup, shutdown and malfunctions, submission of electronic copies of required performance test results and other reports, and other updates and corrections.
Other Recent Developments
- AIR: EPA rejected the pollutant transport petition filed by New York State asking it to find that emissions from over 350 sources in nine upwind states significantly contribute to nonattainment and maintenance in New York after concluding that the sources identified do not emit pollution in violation of the good neighbor provision.
- AIR/CLIMATE CHANGE: EPA proposed to revise the New Source Performance Standards (NSPS) for sources in the oil and gas sector. Among other things, EPA called for rescinding the provisions of the 2012 and 2016 rules extending the NSPS to transmission and storage sources after concluding that the necessary findings to support the addition of these sources had not been made. EPA also proposed to rescind methane emission standards after concluding that they are redundant with existing NSPS for volatile organic compounds.
- WATER: EPA requested comment on a draft National Water Reuse Action Plan, which identifies proposed actions designed to facilitate the reuse of water from municipal, agricultural and other sources to supplement existing freshwater supplies.
- OCCUPATIONAL SAFETY AND HEALTH: The Occupational Safety and Health Administration extended the compliance deadlines for nearly all of the provisions of the beryllium standards for construction and shipyards except the permissible and short-term exposure limits while requesting comments on possible changes to the ancillary standards relating to exposure assessment, personal protective clothing and equipment and other requirements.
- GENERAL: President Donald Trump issued a pair of executive orders intended to limit regulators’ use of informal guidance in both the administrative and enforcement context with the stated goal of preventing federal regulators from enforcing policies that have not been sufficiently vetted. Among other things, the executive order requires agencies to maintain all guidance in a single, searchable, indexed online database and calls for establishing procedures for issuing guidance, including requiring public notice and comment for “significant’ guidance.
New York State
- ENDANGERED/THREATENED SPECIES: DEC proposed changes to its endangered and threatened species regulations to codify situations where DEC has not required permits under existing regulations, including those relating to manmade structures, agricultural land and experimental populations.