Posted on October 20, 2020
Download the full report for October 14, 2020 (pdf)
Recent Developments (October 14, 2020)
Trump Administration Announces Changes to Agency Investigation/Enforcement Approach
The Trump administration issued an executive memorandum advancing Section 6 of Executive Order 13924, which directs the heads of agencies to “consider the principles of fairness in administrative enforcement and adjudication” and revise their procedures and practices in light of those principles. The memorandum directs agencies to provide greater due process and calls for other changes to ease the burdens on those subject to civil and administrative enforcement. Among other things, the memorandum: requires agencies to prove noncompliance rather than requiring the subject of the enforcement action to prove compliance; specifies that administrative enforcement should be “prompt and fair,” including requiring upper level approval to enter into tolling agreements extending the statute of limitations and requiring investigators to recommend enforcement or cease investigation within a defined time period and inform the target when the investigation has closed; and declares that rules of evidence and procedure should be public, clear and effective and makes specific recommendations for achieving that goal. The memorandum can be found at: www.whitehouse.gov/wp-content/uploads/2020/08/M-20-31.pdf.
Revised Army Corps Nationwide Permits Proposed
The U.S. Army Corps of Engineers (ACOE) proposed to reissue nationwide permits (NWPs), general conditions, and definitions, with some modifications, and adopt several new nationwide permits. Individuals planning to undertake activities that will disturb wetlands or waterways frequently must obtain a permit from the ACOE. To streamline the permit approval process, the ACOE has issued NWPs for project categories that typically result in minimal disturbances. Certain NWPs require the submission of a pre-construction notification (PCN) prior to proceeding under the NWP. Major proposed changes to the NWPs include adding new nationwide permits for seaweed and finfish mariculture activities and dividing the current NWP for utility lines into three separate NWPs addressing oil and natural gas pipelines, electric and telecommunications lines, and other utility lines; revising numerous NWPs to remove the 300 linear foot limit for losses of stream beds and rely on the ½ acre limit and PCN requirements to limit environmental impacts; and making other changes to various NWPs. The notice can be found in the September 15, 2020 Federal Register at: www.gpo.gov/fdsys.
Rules Implementing New Renewable Energy Siting Program Proposed
The newly created Office of Renewable Energy Siting (ORES) proposed regulations implementing the Accelerated Renewable Energy Growth and Community Benefit Act enacted as part of the Governor’s budget bill earlier this year. The Act—which is codified in Executive Law § 94-c—is intended to assist New York in achieving its greenhouse gas and renewable energy goals by, among other things, establishing an expedited process for reviewing renewable energy projects in place of New York Public Service Law (PSL) Article 10 and developing uniform standards and conditions (USCs) applicable to categories of renewable energy projects. The proposed regulations—to be set forth at 19 NYCRR Part 900—expand upon the review and approval standards and procedures in the Act, addressing pre-application procedures, general requirements for applications, details regarding required application exhibits, rules governing the transfer of applications commenced under Article 10, application processing, and the hearing process. ORES published a separate rulemaking containing the USCs, which will be found at 19 NYCRR § 900-6. The USC rule establishes conditions to be included in each permit issued by ORES, with certain requirements tailored specifically to wind or solar projects. Information about the rulemakings can be found in the September 16, 2020 State Register at: www.dos.ny.gov/info/register/2020/091620.pdf.
Other Recent Developments
- AIR: The U.S. Environmental Protection Agency (EPA) issued the results of its residual risk and periodic technology review of the National Emission Standards for Hazardous Air Pollutants for major and area source iron and steel foundries.
- AIR/CLIMATE CHANGE: In a pair of recent rulemakings, EPA revised the New Source Performance Standards for sources in the oil and gas sector to rescind Obama-era provisions extending the standards to transmission and storage, eliminate separate methane emission requirements, and make other changes.
- CHEMICAL: EPA issued its final risk evaluation for cyclic aliphatic bromide cluster, in particular, hexabromocyclododecane (HBCD) under the Toxic Substances Control Act, identifying several conditions of use that pose a risk to health and/or the environment and must therefore be assessed to determine whether mitigation measures are necessary.
- WATER: EPA made major changes to its technology-based guidelines and standards for wastewater discharges from steam electric generating facilities, including revising standards applicable to flue gas desulfurization wastewater and bottom ash transport water to reflect recent technological developments and establishing new subcategories for certain electric generating units.
New York State
- CLIMATE CHANGE: The New York State Department of Environmental Conservation (DEC) adopted regulations barring certain uses of hydrofluorocarbons in refrigerants, aerosol propellants, and foam-blowing agents in the wake of an EPA decision to roll back a comparable federal prohibition.
- ENFORCEMENT: DEC replaced its existing procedures for conducting enforcement hearings with a new rule that reflects current practice, incorporates procedural and legal developments, and makes other changes and updates, including adding a new section describing the mediation process.
- OTHER: DEC is accepting comment on additional changes to its regulations governing the issuance of taking permits for endangered and threatened species made following review of comments on the earlier proposed rule.