Existing sources will have three years to comply with the new emissions limits.  State permitting authorities may grant individual sources an additional year to comply under certain circumstances.

The rule also includes revisions to the New Source Performance Standards; these revisions apply to new coal- and oil-fired power plants and set standards for emissions of particulate matter, sulfur dioxide, and nitrogen oxides.

EPA’s web page on the rule may be found here; a press release is available here. In addition, EPA has prepared, broken down by state, a list of facilities that it anticipates will be covered by the new air toxics rules.

For additional information, contact Ed Roggenkamp.

For more information about reporting requirements associated with the Brownfield Cleanup Program, contact Jennifer Coghlan.

Under the new law, which takes effect April 1, 2012, the New York State Department of Environmental Conservation (“DEC”) is directed to promulgate regulations establishing a permitting system with: minimum standards for operation and new construction of water withdrawal systems; monitoring, reporting and recordkeeping requirements; and protections for sources of potable water. The law further provides DEC with discretion to impose additional requirements and carve out additional exceptions.

DEC estimates that the new law will require more than 400 industrial, commercial and agricultural users to obtain state permits for major water withdrawals for the first time. For reference, the DEC also provided the following examples of the types of facilities that would require permits: a 925-room hotel, a 6,500-student day school, and a dairy farm housing 2,000 cows.  The statute also exempts certain withdrawal activities, including withdrawals at remediation sites conducted pursuant to a federal or state court order or agency agreement

In evaluating each permit application, DEC is required to make eight determinations, including whether the supply will be adequate for the proposed use, whether the need for the withdrawal can be reasonably avoided, and whether the quantity of the withdrawal is considered reasonable. Once a permit application is approved, the water withdrawal permit will be valid for up to ten years.

All entities required to obtain a permit under the new law will also be required to submit annual reports including information relating to water usage and water conservation measures. Entities that currently withdraw more than 100,000 gallons of water per day are already required to file annual reports with the DEC pursuant to ECL § 15-3301.  These entities will receive initial permits based on their maximum previously reported capacity.

Proponents of the new law view it as an important step toward responsible water use and conservation in New York, especially in light of the impending licensing process for hydraulic fracturing, likely to begin next year.  Impacts of the new permitting system are yet unknown, but will become more clear when DEC promulgates implementing regulations.

The overall coordination and implementation of state emergency response efforts is the responsibility of the newly reorganized Division of Homeland Security & Emergency Services (“DHSES”), although the New York State Department of Environmental Conservation (“DEC”) continues to provide critical resources for search, rescue and spill response.  The state’s Public Authority Law also allows public authorities such as the MTA to invoke independent emergency powers.

In response to Tropical Strom Irene, Governor Cuomo has issued a number of executive orders and press releases governing emergency preparations and recovery.  Of particular note:

• Executive Order 17 directs DEC, among other agencies, to “to take appropriate action to protect State property and to assist affected local governments and individuals in preparing for, responding to and recovering from this disaster.”
• Executive Order 18 suspends certain parts of New York’s Vehicle and Traffic Law to allow the use of oversize and unregistered vehicles for disaster relief.
• Executive Order 19 provides for emergency infrastructure relief and financing.

DEC has provided instructions and contact information for questions concerning the removal and disposal of storm debris.  DEC’s regulations provide legal authority to waive most procedural permit requirements in the case of emergencies, and to allow holders of air permits to operate without liability in certain conditions.  However, despite potential storm-related delays, it is always best to contact the regional DEC permit administrator to determine the status of any specific project or permit or the proper disposal method for any storm-related debris. 

Finally, while DEC and other state agencies may use enforcement discretion, spill reporting requirements generally remain in effect and should be complied with as quickly as the situation allows. In the weekend following Irene, the DEC Spill Hotline received approximately 430 spill reports.  

For more information on emergency environmental planning and New York’s recent storm response efforts, contact Michael Lesser.

The purpose of the rule is to protect aquatic species from injury and death sustained when they are drawn against (i.e., impinged) or sucked into (i.e., entrained) a facility’s CWIS.  To accomplish this the proposed Phase II rule has three main components:

• First, the Phase II rule would subject most facilities to an upper limit on how many fish can be killed by the facility through impingement.  The facility would determine which technology would be best suited to meeting this limit, including whether to reduce its intake velocity to 0.5 feet per second.  EPA has proposed this option because studies have shown that at this withdrawal rate most fish can swim away from the CWIS.

• Second, the Phase II rule would require that facilities that withdraw very large amounts of water—125 million gallons per day or more—to conduct specified entrainment mortality studies.  For all other facilities subject to the Phase II rule, however, no such studies are required, and the regulatory agency will determine on a case-by-case basis what type of site-specific entrainment mortality controls to require.  This process would include public input.

• Third, new electric generating units at existing facilities would be required to reduce the intake flow to a level similar to a closed cycle recirculation system by incorporating a such a system into the new unit design, or by making other design changes equivalent to closed-cycle cooling reductions.

These three components implement the mandate in Section 316(b) of the Clean Water Act (“CWA”) seeking to ensure that the “design, construction and capacity of cooling water intake structures reflect the best technology available [“BTA”] for minimizing adverse environmental impact.”   This BTA requirement has been the subject of extensive litigation since the 1970’s. The heart of the debate has been whether power plants should be required to implement costly closed-cycle cooling technology, which re-circulates cooling water and consequently requires relatively little water withdrawal, resulting in the lowest rates of impingement and entrainment.  In the absence of final regulations defining BTA, permitting authorities had been directed to determine BTA for each facility on a case-by-case basis. (Proposed Phase II rule, prepublication version, 14 of 413.)

EPA’s proposed approach to entrainment reduction continues the practice of case-by-case BTA determinations based on regulatory agency discretion.  Although EPA acknowledged that closed-cycle cooling, “reduces impingement and entrainment mortality to the greatest extent,” this requires the construction of large cooling towers that are “not practically feasible” in a number of circumstances when “energy reliability, air emissions permits, land availability, and remaining useful plant life” are considered.  (Proposed Phase II rule, prepublication version, 132-33 of 413.)  Accordingly, the BTA determination for entrainment under the proposed Phase II rule will be based on balancing myriad site-specific factors including the number and types of organisms entrained, social benefits and costs of available entrainment technologies, and impacts on the reliability of energy delivery within the immediate area. (Proposed 40 CFR §§ 125.94(c), 125.98.)

The uncertainty inherent in the case-by-case approach to entrainment BTA is likely to provoke strong opinions from both environmentalists and the regulated community.  Some environmentalists have already voiced their disapproval; in a joint statement, NRDC and Riverkeeper have asserted, “EPA will leave it up to state agencies to figure out requirements for plants, but decades of experience have shown that states lack the resources and expertise to make these decisions on a case-by-case basis and have complained to EPA of the extreme burden of having to do so.”  The Edison Electric Institute, an association of U.S. shareholder-owned electric companies, has not yet issued a press statement regarding the proposed rule.

EPA will accept comments on the proposed Phase II rule for 90 days following its publication in the Federal Register.  Instructions for submitting comments are provided on page 2-4 of the prepublication version of the proposed rule.

• revisions to the definitions of “asbestos project” and “building materials”;
• new requirements for the contents of work place safety plans;
• clarification of certain items subject to the asbestos exemption certification;
• modifications to monitoring report requirements; and
• new specifications for required signage.

All property owners and contractors should be sure they are in compliance with the latest regulations.  Please contact us for more information on these recent changes.

EPA’s GHG Reporting Program arose out of a provision in the Consolidated Appropriations Act of 2008, requiring “mandatory reporting of greenhouse gas emissions above appropriate thresholds in all sectors of the economy of the United States.”  EPA first proposed reporting requirements in March 2009 and finalized its initial regulations six months later, on October 30, 2009.  Since then, the agency has issued a series of regulations expanding and clarifying the scope of reporting for various industries and activities, such as the mandatory disclosure of reporting facilities’ co-generation power units.

The GHG Reporting Program primarily covers GHG-emitting facilities, fossil fuel suppliers, and industrial gas suppliers whose aggregate GHG emissions exceed 25,000 metric tons carbon-dioxide equivalent (CO₂e) per year, though facilities in certain emissions intensive source categories (e.g., cement manufacturing and petroleum refining) are universally covered.  EPA has projected that the rule would cover approximately 10,000 sources, which are collectively responsible for 85-90 percent of total U.S. GHG emissions.

Covered facilities were required to begin monitoring their GHG emissions on January 1, 2010, and the deadline for their first annual reports was set to be March 31, 2011.  EPA plans to make much of the data it collects publicly available, and the reported information is expected to inform recent and forthcoming efforts to regulate stationary source GHG emissions under the Clean Air Act.  Earlier this year, EPA began phasing in the first GHG permitting requirements for certain new and modified major stationary sources, and the agency is legally obligated to propose GHG New Source Performance Standards (“NSPS”) for power plants by July 26, 2011.

EPA still plans to publish data submitted under the GHG Reporting Program “later this year,” though it is not clear when facilities will have to report their 2010 emissions.  Instead, the agency promised to provide additional information on its deadline changes over the coming weeks.

EPA’s recent announcement comes on the heels of a Congressional vote which cast further uncertainty over the future of the agency’s suite of GHG regulations.  On February 18, 2011, the House of Representatives passed a seven-month budget “continuing resolution” that would largely de-fund EPA’s GHG reporting registry and prevent EPA from spending any funds to implement its stationary source GHG regulations.  The Senate has not taken up that bill, however, and the House has since passed a two week stop-gap resolution without the GHG provisions.

For more information on EPA’s GHG Reporting Rule and other climate-related initiatives, contact Jeffrey Gracer.

The final regulations, available on DEC’s website, do not differ substantively from the draft regulations issued on August 4, 2010. Revised versions of the Regulatory Impact Statement, Regulatory Flexibility Analysis, and Rural Area Flexibility Analysis associated with the new regulations, as well as DEC’s assessment of public comments received, are available in the November 3, 2010 issue of the New York State Register.

For more information about New York’s Endangered Species Act, contact Steven Russo or Jessica Steinberg.

On August 30, 2010, EPA’s Office of Solid Waste and Emergency Response released its Review of the Draft 2002 Subsurface Vapor Intrusion Guidance.  The Review highlights areas of existing guidance that EPA plans to update or change over the next two years.

In 2002, EPA released draft guidance for detecting and responding to vapor intrusion, caused by the migration of subsurface contamination into overlying buildings.  Vapor intrusion is most commonly found at sites with elevated levels of volatile organic compounds – including chlorinated solvents and gasoline – in the soil or groundwater.

In response to recent scientific developments, last year the EPA Inspector General recommended that the agency update and finalize its guidance, which remains in draft form.  EPA hopes to complete that process by November 2012, with the recent Review highlighting various assumptions and methodologies that are subject to change.  For instance, the agency plans to incorporate multiple lines of evidence into vapor intrusion screening determinations, expand its guidance related to non-residential and yet-to-be-constructed buildings, and provide for the collection of indoor air samples earlier in the investigation process.

As it moves forward, EPA intends to solicit public comment and hold hearings on the guidance revisions in 2011.  The agency asserts it is not required to take comment on guidance documents, but often does so for higher profile issues.

Meanwhile, New York continues its process of re-evaluating contaminated sites for vapor intrusion pathways, including many properties that had previously been remediated and de-listed.  Purchasers and lenders are also increasingly investigating vapor intrusion as part of their Phase 1 environmental site assessments.

Thus far, EPA has not announced plans to re-open Superfund sites to investigate vapor intrusion.  Where low levels of contamination are left at a remediated site, however, the Superfund statute requires a site review every five years, at which point additional work may be needed to address vapor intrusion threats based on new guidance.

Sive, Paget & Riesel represents a number of property owners on vapor-intrusion evaluations and re-openings.  For more information on this topic, please contact Christine Leas, Jeffrey Gracer or Michael Bogin.

In New York a permit is required for stormwater discharges (i.e., runoff over land or impervious surfaces into water bodies) from MS4s and the permit must include “controls to reduce the discharge of pollutants to the maximum extent practicable.”  33 U.S.C. § 1342(p)(3)(B).  For small MS4s, one such control is the development and implementation of a Storm Water Management Plan (“SWMP”).

Petitioners challenged the 2010 MS4 General Permit, alleging it fails to achieve state water quality standards because it would allow stormwater pollution to continue at existing levels instead of reducing pollution.  Petitioners alleged four causes of action:

1. NYSDEC’s issuance of the General Permit was unlawful because it does not require MS4s to reduce their discharges of pollutants to the “maximum extent practicable.”  Petitioners alleged that NYSDEC’s reliance on the State Stormwater Management Design Manual’s technical standards for post-construction stormwater is unlawful because that manual is outdated, and does not sufficiently reduce pollutant discharges to the “maximum extent practicable.”  Additionally, Petitioners alleged that the General Permit authorization of an optional “banking and credit system” – allowing off-site stormwater pollution reductions to satisfy on-site requirements – would “violate the CWA’s mandate that post-construction stormwater discharges from new development and redevelopment be reduced to the maximum extent practicable” because the banking and credit system is not limited to instances where on-site compliance is impracticable.  (Petition, ¶¶ 65-69.)
2. NYSDEC issuance of the General Permit was unlawful because it does not ensure compliance with State total maximum daily loads (“TMDL”) (a kind of pollution loading allocation) for water bodies where MS4 discharges contribute to violations of the water body’s water quality standards.  Petitioners alleged that the General Permit does not include limitations necessary to meet water quality standards, does not implement a TMDL wasteload allocation, and does not include a compliance schedule ensuring that permittees will achieve compliance with water quality standards “within the shortest reasonable time” if permittees cannot immediately comply with water quality standards.  Additionally, Petitioners alleged that the General Permit does not ensure that sufficient measures will be taken to meet pollution reduction targets set for bodies of water that the State has prioritized for cleanup (e.g., Long Island Sound).  (Petition, ¶¶ 71-78.)
3. NYSDEC issuance of the General Permit was unlawful because it does not “include requirements to take samples and measurements representative of the quantity and character of the monitored discharge” as required by State and federal law.  (Petition, ¶¶ 80-81.)
4. Because the General Permit authorizes MS4s to develop their own effluent limitations (including SWMPs and a banking and credit system), which “are not subject to substantive DEC review and approval, public comment to DEC, and/or the opportunity for a hearing before a hearing [sic] before DEC,” Petitioners allege the permit creates a scheme of self regulation prohibited by the Clean Water Act.  (Petition, ¶¶ 83-90.)

As a practical matter this challenge to the MS4 General Permit could have State-wide impacts, as the MS4 General Permit applies to MS4 municipalities across New York State—not just those on Long Island Sound.  If successful, this litigation could ultimately result in significant new pollution control mandates for already financially strapped municipalities.  Enhanced requirements for pollution reduction in TMDL watersheds could mean reduced development opportunities in those MS4 communities, some of which are already struggling with a shrinking tax base.

[2] GP-0-10-002, effective May 1, 2010.  An MS4 is a conveyance or system of conveyances owned or operated by a State, municipality, association, public body (including special districts under State law), Indian tribe or authorized Indian tribal organization, or designated and approved management agency that discharges into waters of the United States; which is “designed or used for collecting or conveying storm water;” and is not a combined sewer or part of a Publicly Owned Treatment Works.  40 C.F.R. § 122.26(b)(8).

[3] NYSDEC classifies all MS4s as small MS4s except for those in New York City.  (Petition, ¶ 46.)

[4] The CWA prohibits the discharge of pollutants to surface waters unless the discharge is pursuant to a National Pollutant Discharge Elimination System (“NPDES”) permit.  33 U.S.C. § 1342.  In New York, NYSDEC has assumed MS4 permitting authority through the State Pollutant Discharge Elimination System (“SPDES”) General Permit program.  See ECL §§ 17-0801 et seq.