Environmental Regulatory News Update

Posted on May 12, 2020

Download the full report for May 8, 2020 (pdf)

Recent Developments (May 8, 2020)

Federal Government Rolls Back Vehicle GHG Emission and Fuel Efficiency Standards

The U.S. Environmental Protection Agency (EPA) and the National Highway Traffic Safety Administration rolled back federal fuel economy and greenhouse gas (GHG) emission standards for model year (MY) 2021-2026 passenger cars and light-duty trucks following a new review of the technical and economic feasibility of the current standards. In place of the existing standards, the agencies will increase the stringency of the GHG emission and CAFÉ standards by 1.5% each year from MY 2020 levels over MY 2021-2026. The agencies estimate that the new standards will result in an average, industrywide GHG emission standard of 201 grams per mile (gpm) of carbon dioxide (CO2) and fleetwide fuel efficiency of 40.4 miles per gallon (mpg) in MY 2026 as compared with 164 gpm and 54.5 mpg under the rule it is replacing. In a previous rulemaking issued in September 2019, EPA reversed an earlier decision granting California the authority to adopt stricter vehicle GHG emission standards, depriving states such as New York of the option to continue to implement the existing, stricter standards. The rule can be found in the April 30, 2020 Federal Register at: www.govinfo.gov.

New “Waters of the United States” Rule Issued

EPA and the U.S. Army Corps of Engineers (ACOE) adopted a new definition of “waters of the United States”—a term that establishes the scope of waters federally regulated under the Clean Water Act (CWA). The rule replaces a controversial 2015 rulemaking defining the term “waters of the United States” to include specific categories of jurisdictional waters and allowing other waters to be included on a case-by-case basis based on criteria spelled out in the rule. With the new Navigable Waters Protection Rule, EPA and the ACOE have adopted a new definition that identifies four categories of water bodies as WOTUS: (1) territorial seas and traditional navigable waters; (2) tributaries, including perennial and intermittent rivers and streams that contribute surface flow to traditional navigable waters; (3) lakes, ponds and impoundments of jurisdictional waters; and (4) adjacent wetlands, i.e., wetlands that physically touch other jurisdictional waters or meet other “adjacency” criteria. According to EPA/ACOE, the Navigable Waters Protection Rule clearly delineates where federal regulations apply and gives state and local authorities more flexibility to determine how best to manage waters within their borders. Critics charge that the new rule greatly reduces the protections afforded to surface waters and wetlands and will lead to increased pollution and destruction of wetlands and waterways. The rule can be found in the April 21, 2020 Federal Register at: www.govinfo.gov.

DEC Proposes Changes to Air Permitting Regulations

DEC is proposing to revise its existing air permit regulations to improve their clarity and consistency. Key changes to 6 NYCRR Part 201 and related provisions include: adding a new section addressing research and development activities; revising key definitions; revising the list of exempt/trivial activities, including significantly reducing the threshold for exempt asphalt storage tanks, adding an exemption for 300,000 barrel biodiesel tanks, adding exemptions for certain lumber drying kilns, coffee roasting facilities, microbreweries, wineries, and craft distilleries, and making other changes to the exempt/trivial list; making the state facility permit modification provisions consistent with Title V; clarifying the Title V operational flexibility provisions, and making other changes and additions. The proposed rule can be found on DEC’s website at: www.dec.ny.gov/regulations/120051.html.

 Other Recent Developments

Federal

  • AIR: EPA is proposing to retain the existing particulate matter national ambient air quality standards without revision following a comprehensive review during which it concluded that advances in scientific knowledge on the effects of the pollutant on public health and welfare did not support changes to the standards.
  • COVID-19/Remediation: EPA issued Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19, which outlines the agency’s policy on implementing remedial programs during the COVID-19 pandemic, establishing criteria for evaluating the status of ongoing response work at sites and the possible impact of COVID-19 on sites, surrounding communities, EPA personnel, and response/cleanup partners.
  • COVID-19: EPA and the Occupational Safety and Health Administration have issued various guidance documents addressing compliance, enforcement, logistical and other issues arising out of the COVID-19 pandemic.
  • CHEMICAL: EPA is seeking comment on the results of its draft risk evaluation for perchloroethylene as well as on the draft scoping documents for 7 of the 20 high priority chemicals targeted for risk evaluation, including formaldehyde. 

New York State

  • AIR: DEC proposed changes to its CO2 budget trading program regulation at 6 NYCRR Part 242 to implement updates required under the Regional Greenhouse Gas Initiative, the multistate CO2 cap-and-trade program for power plants in the Northeast.
  • AIR: DEC proposed to revise its annual air emission statement regulations to require electronic submission and make other minor changes to 6 NYCRR Subpart 202-2.
  • ENVIRONMENTAL QUALITY REVIEW: DEC recently issued the fourth edition of The SEQR Handbook, a practical reference guide addressing common questions that arise during the process of applying the State Environmental Quality Review (SEQR) Act. The updated Handbook references changes to the SEQR regulations adopted in 2018 as well as clarifying existing sections to address issues arising since the third edition of the Handbook was released in 2010.
  • COVID-19: DEC issued various guidance documents addressing compliance, enforcement, logistical and other issues arising out of the COVID-19 pandemic.
  • REMEDIATION: DEC issued Guidelines for Sampling and Analysis of PFAS under NYSDEC’s Part 375 Remedial Programs, which summarizes the procedures for sampling per- and polyfluoroalkyl substances (PFAS) with the goal of ensuring consistency in PFAS sampling, analysis and reporting.