Posted on August 13, 2020
Download the full report for August 7, 2020 (pdf)
Recent Developments (August 7, 2020)
CEQ Overhauls NEPA Regulations
The Council on Environmental Quality (CEQ) adopted major changes to the National Environmental Policy Act (NEPA) regulations with the purported goal of modernizing and streamlining the NEPA review process. NEPA requires federal agencies to incorporate environmental considerations into planning, decision-making, and permitting. Federal agencies must prepare detailed statements assessing the environmental impact of, and alternatives to, major federal actions that significantly affect the environment. With the recent rulemaking, the CEQ made its first major update to the NEPA rules since 1978. Key changes include: revising definitions and rules to clarify that comparatively minor projects do not trigger NEPA, specify that only “reasonably foreseeable” effects must be considered, and expressly declare that analysis of cumulative impacts is not required; imposing a 75-page limit and a one-year timeframe for completing an environmental assessment; and recommending that scoping for environmental impact statements (EIS) begin early in the review process, imposing a two-year deadline for completing the EIS, and updating the process for producing and distributing the EIS. While industry groups have praised the changes, environmentalists contend that the new rules effectively prohibit agencies from assessing climate change impacts under NEPA. The rule can be found in the July 16, 2020 Federal Register at: www.govinfo,gov.
EPA Updates Water Quality Certification Regulations
The U.S. Environmental Protection Agency (EPA) clarified and streamlined the Clean Water Act (CWA) requirements and procedures relating to state/tribal water quality certifications (WQC). Under CWA § 401, a federal agency may not issue a permit or license to conduct any activity that may result in a discharge to waters of the United States unless the state or tribe where the discharge originates either certifies that the discharge complies with state water quality requirements or waives the certification requirement. The revised rule—which is set forth at 40 CFR Part 121—addresses: the statutory and regulatory timelines for reviewing and acting on Section 401 certifications, including specifying that the time for reviewing the WQC request begins to run when it is received, regardless of whether it is “complete”; the appropriate scope of Section 401 review and conditions, which should be limited to evaluating potential water quality impacts associated with discharges from point sources to waters of the United States; the scope of information relevant to state/tribal Section 401 certification review; and the various options for responding to certification requests (approval, approval with conditions, denial and waiver). The rulemaking followed the issuance of guidance in 2019 that implemented many of the changes included in the final rule. The rule can be found in the July 13, 2020 Federal Register at: www.govinfo.gov.
DOH Planning Council Approves Drinking Water Standards for Emerging Contaminants
The New York State Department of Health’s (DOH) Public Health and Health Planning Council approved maximum contaminant levels (MCLs) for perfluorooctanoic acid (PFOA), perfluorooctanesulfonic acid (PFOS), and 1,4-dioxane under its public drinking water regulations set forth at 10 NYCRR Subpart 5-1 in the wake of the discovery of these contaminants in public water systems (PWS) across New York. The rule sets MCLs of 10.0 parts per trillion each for PFOA and PFOS and 1.0 parts per billion for 1,4-dioxane, establishes sampling/monitoring requirements, specifies compliance measures for PWS that do not meet the standards, and allows PWS to ask the State to defer actions for determining MCL violations during the first two years of the program. The rule and related documents can be found on the DOH website at: www.health.ny.gov/facilities/public_health_and_health_planning_council/meetings/2020-07-30/docs/mlc.pdf.
Other Recent Developments
- AIR: EPA published the final results of its residual risk/periodic technology review under the National Emission Standards for Hazardous Air Pollutants program for the following source categories: paper and other web coating, rubber tire manufacturing, lime manufacturing plants, integrated iron and steel manufacturing, site remediation, and taconite iron ore processing.
- WATER: EPA withdrew its 2011 determination to regulate perchlorate in drinking water after concluding based on new information that the substance does not occur with a frequency and at levels of public health concern and that regulation would not present a meaningful opportunity for health risk reductions for persons served by PWS.
- WATER: The U.S. Department of Justice issued guidance deferring to state enforcement of the CWA in most civil matters.
New York State
- HYDRAULIC FRACTURING: Governor Cuomo signed a law requiring drill cuttings from hydraulic fracturing that meet the definition of hazardous waste to be managed as hazardous waste. The law follows a bill signed in April that enshrined the State’s earlier ban on hydraulic fracturing into law.