Environmental Regulatory Update – August 2019

Posted on August 21, 2019

Download the full report for August 19, 2019 (pdf)

Recent Developments (August 19, 2019)

Rule Proposed Implementing Repeal of NESHAP Once In, Always In Policy

The U.S. Environmental Protection Agency (EPA) proposed amendments to the National Emission Standards for Hazardous Air Pollutants (NESHAP) regulations to implement its previous repeal of the “once in, always in” policy. 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 (PTE) 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. In 2018, EPA rescinded its once in, always in policy after finding that it violates the plain language of the Clean Air Act (CAA), which allows major sources to accept permit limitations and become area sources. With the recent rulemaking, EPA is proposing to revise the NESHAP implementing regulations found at 40 CFR Part 63, subpart A to clarify that major sources can become area sources at any time by capping their PTE and make other related changes. The proposed revisions can be found in the July 26, 2019 Federal Register at: www.govinfo.gov.

EPA Proposes NSR Project Emissions Accounting Rule

EPA proposed regulations implementing its previous change in interpretation of the concept of project under new source review (NSR). In deciding whether emissions of a particular pollutant exceed the threshold for triggering NSR, EPA traditionally has considered only project-related emission increases during the first step in the review process, with reductions addressed during the subsequent emission netting step. In March 2018, EPA issued guidance announcing that it had reinterpreted the regulations and concluded that emission decreases associated with the project under review should be considered during the first step of the NSR review process rather than as part of the emission netting analysis. With the recent rulemaking, EPA proposed various revisions to the NSR regulations to finalize implementation of the change, which is expected to simplify the process of determining NSR applicability. The proposed rule can be found in the August 9, 2019 Federal Register at: www.govinfo.gov.

DEC Seeks Comment on Construction General Permit

The New York State Department of Environmental Conservation (DEC) is accepting comment on draft State Pollutant Discharge Elimination System (SPDES) General Permit for Stormwater Discharges from Construction Activity (GP-0-20-001), which will replace existing SPDES General Permit GP-0-15-002. The Construction General Permit regulates stormwater discharges from certain construction activities (typically those involving the disturbance of one acre or more of land). Individuals seeking coverage under the permit must submit a Notice of Intent (NOI) form to DEC and prepare and comply with a site-specific stormwater pollution prevention plan (SWPPP). With the recent notice, DEC is seeking comment on proposed changes to the General Construction Permit incorporating changes made to applicable federal emission guidelines for construction activity, clarifying the scope of coverage with respect to steep slopes, and requiring electronic submission of NOIs beginning December 21, 2020, among other revisions. The draft permit can be found on DEC’s website at: www.dec.ny.gov/chemical/41392.html.

Other Recent Developments


  • AIR: EPA proposed the results of its residual risk/periodic technology review of the municipal solid waste landfill NESHAP, finding that the existing standard protects public health with an ample margin of safety and that there have been no technological developments justifying stricter standards, while proposing changes to update the rule and incorporate recent revisions to the MSW New Source Performance Standard.
  • AIR: EPA proposed to allocate allowances for specific hydrochloroflourocarbons for the years 2020 through 2029 and otherwise revise and update requirements under the program for controlling production and consumption of ozone-depleting substances.
  • CLIMATE CHANGE: EPA proposed renewable fuel standards for gasoline and diesel transportation fuel produced and imported for 2020 that set volumes significantly below those mandated by the Clean Air Act because of a continuing shortfall in the production of cellulosic biofuel.
  • REMEDIATION: EPA proposed not to impose financial responsibility requirements for facilities in the electric generation, transmission and distribution industry under Section 108(b) of the Comprehensive Environmental Response, Compensation and Liability Act after finding that it was unnecessary in light of existing regulations and changes in the industry.
  • GENERAL: EPA issued guidance addressing the relationship between EPA and the states on environmental enforcement and compliance, setting out expectations and procedures for managing relations between EPA and delegated states relating to joint work planning, the roles of EPA and the states when implementing authorized programs, and the process for elevating disputes.

 New York State

  • AIR: DEC proposed to revise state-specific ambient air quality standards to eliminate pollutants covered by national ambient air quality standards (NAAQS) while retaining and updating standards for pollutants such as fluoride and hydrogen sulfide that are not covered by NAAQS.
  • AIR: DEC proposed to revise its reasonably available control technology requirements for combustion sources located at major sources of nitrogen oxides to eliminate outdated requirements and make organizational and other changes.
  • WATER: DEC has made available for comment a draft general permit addressing vegetation management on utility rights-of-way in state regulated wetlands that requires preparation of an Annual Vegetation Management Proposal and Schedule and submission of annual post treatment reports describing the work that was actually done.
  • GENERAL: DEC recently launched its new DECinfo Locator, an interactive map that provides access to DEC documents and public data about recreational resources and environmental concerns such as permits and contaminated sites.
  • OTHER: The Pipeline and Hazardous Material Safety Administration proposed changes to the hazardous material transportation regulations in response to various petitions for rulemaking addressing changes to the rules relating to rail cars, portable tank markings, labeling of reconditioned drums, importation of chemicals under the limited quantity exception, and other subjects.