Environmental Regulatory News Update

Posted on November 12, 2020

Download the full report for November 10, 2020 (pdf)

Recent Developments (November 10, 2020)

DEC Issues CRRA Implementation Guidance

The New York State Department of Environmental Conservation (DEC) issued a series of guidance documents implementing the 2014 Community Risk and Resiliency Act (CRRA), which was enacted to ensure that State agencies consider sea-level rise, storm surge, and flooding in making facility siting, permitting, and funding decisions. Of particular note, DEC issued New York State Flood Risk Management Guidance for Implementation of the Community Risk and Resiliency Act, which provides guidance to State agencies on considering flood risk for projects involving new and substantially improved structures or repair of substantially damaged structures in New York State, including instruction on identifying areas potentially affected by flooding in light of the risks posed by climate change. In addition, DEC issued guidance explaining how the risks associated with sea-level rise, storm surge, and flooding should be considered in smart growth assessments required under the Smart Growth Public Infrastructure Policy Act as well as guidance identifying natural resilience measures and explaining how they can reduce the risk of flooding and erosion. The guidance documents can be found on DEC’s website at: www.dec.ny.gov/energy/102559.html.

PSC Issues Orders Addressing Renewable Energy Development

The New York Public Service Commission (PSC) issued a pair of orders relating to renewable energy development and implementation of the State’s landmark Climate Leadership and Community Protection Act (CLCPA), which sets strict greenhouse gas (GHG) emission reduction and renewable energy goals and lays out a framework for developing and implementing the measures necessary to achieve those goals. The first order approved a White Paper that calls for using the existing regulatory and procurement structure established under the State’s Clean Energy Standard to meet the goals of the CLCPA with policy changes and modifications to align with the CLCPA, achieve the 2030 renewable energy target, and address the unique issues associated with meeting downstate energy needs. In a related development, the PSC issued an order approving the “build-ready program” included as part of the 2020 Accelerated Renewable Energy Growth and Community Benefit Act. The Act requires the state to survey property, acquire real property interests in potentially promising sites, and conduct site-by-site assessments to determine each site’s viability for renewable energy development. The State will then acquire the necessary permits and make the “build-ready” site available for auction to developers. The orders can be obtained from the New York State Department of Public Service website at www.dps.ny.gov by entering Case Number 15-E-0302 in the input box labeled “Search for Case/Matter Number”.

DEC Updates Mercury MDV Guidance

DEC is seeking comment on proposed revisions to Division of Water (DOW) Program Policy 1.3.10, entitled Mercury – SPDES Permitting & Multiple Discharge Variance, which provides guidance to DEC staff developing State Pollutant Discharge Elimination System (SPDES) permits that regulate wastewater and stormwater discharges containing mercury. Because the water quality-based standard for mercury in surface water is largely unattainable, DEC has issued a multiple discharge variance (MDV) that sets discharge limits and monitoring requirements based on various factors, including whether a facility has a significant mercury source. Facilities that trigger the MDV must implement one of four Mercury Minimization Programs (MMPs) depending on the type of facility and other criteria. Permittees that refuse authorization under the MDV may seek an individual discharge variance in accordance with the procedures and standards spelled out in the guidance. Draft Program Policy DOW 1.3.10 can be found on DEC’s website at: www.dec.ny.gov/chemical/41392.html.

Other Recent Developments


  • AIR: The U.S. Environmental Protection Agency (EPA) proposed updated findings on whether upwind states significantly contribute to downwind nonattainment of the 2008 ozone national ambient air quality standards following a court decision invalidating EPA’s earlier conclusion that the Cross-State Air Pollution Rule update fully addressed the upwind states’ good neighbor obligations under the Clean Air Act.
  • CHEMICAL: EPA issued a final risk evaluation for carbon tetrachloride and sought additional comment on a revised draft risk evaluation for C.I. Pigment Violet 29 under the Toxic Substances Control Act, identifying conditions of use that pose a risk to health and/or the environment that must be assessed to determine whether mitigation measures are necessary.
  • WATER: EPA delayed the compliance deadlines for the second phase of its National Pollutant Discharge Elimination System (NPDES) Electronic Reporting Rule, which requires electronic submission of most reports under the NPDES permit program and sharing of NPDES-related data among the states and EPA.
  • WATER: EPA proposed national standards of performance for discharges incidental to the normal operation of primarily non-military and non-recreational vessels 79 feet in length or more in fulfillment of the mandate of the 2018 Vessel Incidental Discharge Act, which sought to clarify and streamline the various laws regulating discharges from marine vessels.

New York State

  • AIR: DEC revised the rules requiring heavy-duty vehicles (HDV) to be equipped with best available retrofit technology to establish final compliance deadlines, revise the definition of HDV, and make other changes.
  • CLIMATE CHANGE: DEC is accepting comment on its draft value of carbon guidance, which provides values for use by State agencies in assessing the benefits of GHG reductions in conjunction with rulemaking, funding, permitting and other major decisions.

WATER: DEC made available for comment a draft general permit covering certain minor activities in regulated streams and rivers.