Environmental Regulatory News Update – February 2021 : Young/Sommer LLC Attorneys at Law

Environmental Regulatory News Update – February 2021

Posted on February 17, 2021

Download the full report for February 15, 2021 (pdf)

Recent Developments (February 15, 2021)

DEC Revises Numerous Air Pollution Control Regulations

In the last month, the New York State Department of Environmental Conservation (DEC) adopted revisions to numerous air pollution control regulations proposed in 2020.

Air Permits (6 NYCRR Part 201). DEC revised its air permitting regulations and related provisions to: address research and development activities; establish exemptions for small-scale coffee roasting, brewery, winery, and distillery operations; significantly revise the exemptions for asphalt and biodiesel storage; eliminate the exemption for tub grinders and construction and demolition debris waste crushers; rewrite the modification provisions for state facility permits to more closely resemble the Title V requirements: clarify the operational flexibility provisions; and make other changes.
Fuel composition and use – sulfur limitations (6 NYCRR Subpart 225-1). DEC extended the sulfur-in-fuel limits to incinerators and process sources, eliminated a loophole that allowed the purchase of non-compliant fuel from out-of-state, and lowered the sulfur content limit of waste fuel from 0.75% to 0.25%.
Stationary combustion installations (6 NYCRR Subpart 227-1). DEC replaced and updated its existing regulations limiting particulate matter (PM) and opacity from stationary combustion installations to: clarify the applicability provisions; require operators of certain solid fuel burning units to meet a PM emission limit of 0.10 pound per million Btu heat input that will potentially necessitate the installation of controls; and impose new tune-up and performance testing requirements, among other changes.
Gasoline dispensing sites and transport vehicles (6 NYCRR Part 230). DEC repealed and replaced its rule governing gasoline dispensing sites to: incorporate federal provisions requiring advanced Stage I systems to achieve greater volatile organic compound (VOC) control and extend those requirements to mid-sized facilities in the New York City metropolitan area; eliminate Stage II vapor control requirements; impose best management practice requirements relating to gasoline storage and spill cleanup; and make other changes.
New source review requirements for proposed new major facilities and major modifications to existing facilities (6 NYCRR Part 231). DEC revised its New Source Review (NSR) regulations for new and significantly modified major facilities to conform to federal NSR requirements and recent court rulings, clarify rule language, and make other changes.
VOC content limits for consumer products (6 NYCRR Part 235). DEC added nine new product categories to the rule, lowered the VOC content limits for 10 existing categories, and made other updates/changes.

The new rules can be accessed on DEC’s website at: www.dec.ny.gov/regulations/propregulations.html#recent.

DEC Proposes Food Scrap Donation and Recycling Regulation

DEC is accepting comments on a proposed rule implementing the 2019 Food Donation and Scraps Recycling Law, which requires large generators of food scraps to donate excess edible food and recycle all remaining food scraps if the generator is located within 25 miles of an organics recycler. The rule, which will be set forth at 6 NYCRR Part 350, will affect grocery stores, restaurants, food processors, colleges and others that generate an annual average of two tons per week or more of food scraps at a single location. Certain categories of large quantity generators are exempt as are generators in New York City, which has adopted its own program. Also, generators may petition DEC for a waiver from compliance due to cost, lack of availability of an organics recycler, or other factors. Incinerators and landfills must take all reasonable precautions not to accept food scraps from designated food scrap generators, and DEC must post lists of food scrap generators, transporters, and recycling facilities on its website. The proposed rule can be found on DEC’s website at: www.dec.ny.gov/chemical/122245.html.

EPA Adopts Major Changes to Drinking Water Lead and Copper Rule

In the wake of problems with lead-contaminated drinking water in Flint, Michigan, and elsewhere, the U.S. Environmental Protection Agency (EPA) recently adopted the first major changes to its lead and copper rule (LCR) since 1991, when the rule was issued. The goal of the changes is to target actions to reduce lead exposure to areas with the greatest problems, improve sampling methods, and increase public outreach. The current LCR establishes a lead action level of 15 parts per billion (ppb) in drinking water, together with requirements to sample lead service lines (LSL) and implement measures to reduce lead levels via corrosion control, LSL replacement, and other measures. With the recent rulemaking, EPA required public water systems to conduct a LSL inventory; established a new “trigger level” for lead of 10 ppb which, if exceeded, compels further review of corrosion control measures; made major changes to the rules governing LSL replacement, including requiring development of a plan when lead concentrations exceed the 10 ppb trigger level; revised the tap sampling rules to prohibit practices that can mask elevated lead levels; and required systems to notify customers of action level exceedances quickly. The rule can be found in the January 15, 2021 Federal Register at www.govinfo.gov.

Other Recent Developments

Federal

AIR: EPA proposed the results of its residual risk/periodic technical review under the National Emission Standards for Hazardous Air Pollutants program for facilities in the mercury cell chlor-alkali plant, primary magnesium refining, and flexible polyurethane foam production and fabrication source categories.
AIR/BULK STORAGE: EPA proposed changes to federal regulations governing the management of gasoline containing between 10% and 15% ethanol targeted at dispenser labeling and tank compatibility concerns.
CHEMICAL: EPA issued risk evaluations under the Toxic Substances Control Act for 1,4-dioxane and C.I. pigment violet 29 identifying conditions of use that pose a potential risk to health and setting the stage for EPA to develop strategies to minimize that risk.
WATER: The U.S. Army Corps of Engineers revised its nationwide permits (NWPs) to: eliminate linear foot limits for losses of stream beds and/or make other changes to certain NWPs; revise NWP 12 to limit it to oil and natural gas pipelines and establish separate NWPs for electric/telecommunication utility lines and other types of pipelines; and establish new NWPs for certain mariculture activities.
OCCUPATIONAL SAFETY AND HEALTH: The Occupational Safety and Health Administration issued updated guidance for non-healthcare facilities on addressing COVID-19 in the workplace.

New York State

AIR: DEC sought comment on proposed changes to Program Policy DAR-1, Guidelines for the Evaluation and Control of Ambient Air Contaminants under 6 NYCRR Part 212, which establishes the procedures for setting emission limits for toxic and criteria contaminants not regulated under more specific emission standards. Changes include lowering the guideline concentrations for benzene and ethylene oxide and adding guideline concentrations for perfluorooctanoic acid.
AIR: DEC revised Program Policy DAR-11, Electronic Reporting for Air Facilities, which establishes the methods and procedures to be used by facility owners/operators when submitting certain reports, certifications, and emission statements to DEC under the air program
REMEDIATION: DEC revised Program Policy DER-23, Citizen Participation for Remedial Programs, to delete references to the Voluntary Cleanup Program, address recent changes to the process for issuing fact sheets and notices, and authorize virtual meetings when in-person meetings are not possible.
GENERAL: DEC issued CP-71, Acquisition and Use of Unmanned Aircraft, providing guidance to staff on the acquisition and use of unmanned aircraft systems (UAS) such as drones to perform agency work and overseeing the use of UAS by the public on DEC lands.