March 9, 2011
The New York City Department of Environmental Protection (“NYCDEP”) has issued new asbestos regulations, which became effective February 3, 2011. Examples of new provisions include:
- 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.
March 1, 2011
 On March 1, 2011, the Environmental Protection Agency (“EPA”) announced its plans to postpone the upcoming deadline for mandatory reporting of greenhouse gas (“GHG”) emissions, which is currently scheduled for the end of this month. EPA has not set a revised deadline, though the agency reported that it “is in the process of finalizing a user friendly online electronic reporting platform,” which it plans to unveil this summer.
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.
November 4, 2010
On November 3, 2010, the New York State Department of Environmental Conservation (“DEC”) adopted revisions to the State Endangered Species Act (“ESA”) Regulations, 6 N.Y.C.R.R. Part 182. As discussed previously on this blog, the revised regulations are notable for their coverage of incidental take permits, which are required when there is a “taking” (which includes killing and lesser acts such as disturbing species) of endangered or threatened species incidental to other lawful activity. Our previous post discusses the interaction between this obligation and existing obligations for environmental review under the State Environmental Quality Review Act (“SEQRA”).
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.
October 4, 2010
Four years ago, New York’s Department of Environmental Conservation (“DEC”) and Department of Health (“DOH”) issued new guidance on soil vapor intrusion, triggering the ongoing reevaluation of over 400 contaminated sites and the reopenings of dozens for new testing or mitigation. Now, the U.S. Environmental Protection Agency (“EPA”) is taking the first steps towards revising its own vapor intrusion guidance.
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.
July 28, 2010
On June 28, 2010, a coalition of environmental groups[1] (“Petitioners”) filed an Article 78 Petition (“Petition”) in court challenging the New York State Department of Environmental Conservation’s (“NYSDEC”) April 2010 issuance of a State Pollution Discharge Elimination System (“SPDES”) General Permit that sets forth requirements applicable to municipal separate storm sewer systems (“MS4s”).[2] The General Permit authorizes discharges of stormwater from “small MS4s,” those municipal storm water systems serving communities with a population between 10,000 to 100,000 people.[3] New York regulates MS4s via its SPDES program, which implements the Clean Water Act (“CWA”) pursuant to delegated authority.[4]
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:
- 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.)
- 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.)
- 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.)
- 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.
[1] Natural Resources Defense Council, Riverkeeper, Waterkeeper Alliance, Soundkeeper, Save the Sound, Peconic Baykeeper, Hudson-Raritan Baykeeper, and Hackensack Riverkeeper.
[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.
On July 6, 2010, the U.S. Environmental Protection Agency (“EPA”) announced a proposed rule to address air emissions that cross state lines and contribute to ozone and particulate matter pollution in the eastern half of the country. Many areas in the northeast cannot meet National Ambient Air Quality Standards (“NAAQS”) because of pollution from upwind states.[1] The rule would create Federal Implementation Plans (“FIPs”) to reduce sulfur dioxide (SO2) and nitrogen oxide (NOx) emissions from electric power plants in 32 states through a combination of direct abatement standards and a limited voluntary “cap-and-trade” emissions permit trading program.
Once adopted, the proposed rule will replace the 2005 Clean Air Interstate Rule (“CAIR”), which required states to develop State Implementation Plans (“SIPs”) to address interstate transport of SO2 and NOx.[2] CAIR allowed states to opt into a voluntary cap-and-trade program.[3] In a 2008 decision and subsequent decision on rehearing,[4] the D.C. Circuit remanded CAIR to EPA, holding the rule unlawful but declining to vacate it during the period of the agency’s reconsideration.
The basis of the court’s objections was that CAIR’s permit trading program did not contain absolute emissions limits for individual sources, and so could technically allow individual sources in upwind states to increase emissions by buying enough emissions allowances. The court found that this system violated the CAA, which requires SIPs to contain “adequate measures” prohibiting sources from “contribut[ing] significantly to nonattainment in … any other State …” or “interfere[ing] with the maintenance of” NAAQSs.
The newly proposed EPA rule aims to remedy these flaws. It relies on state-specific data to identify each state’s contribution to nonattainment or interference with NAAQSs maintenance in other states and uses this information to create a state-wide emissions budget and an enforceable FIP designed to reduce emissions in the state below that budget. States will have the option of replacing these FIPs with SIPs that achieve the same emissions reduction goals.[5] Within this framework, the rule allows trading of emissions allowances within each state, as well as limited interstate trading.
In addition to this primary proposal, EPA has also requested comment on two alternative schemes. Under the first alternative, interstate trading of emissions allowances would be prohibited, although trading among power plants within states would continue. Under the third option, emissions trading would be replaced completely with emissions rate limits.
The final rule, if it survives legal challenges, could have substantial impacts on air quality and also impose significant costs on industry. EPA estimates that its preferred approach would have annual health and welfare benefits amounting to $120-290 billion in 2014, including the prevention of 14,000 to 36,000 premature deaths, at an annual cost of compliance of $2.8 billion. The rule represents a central element of EPA’s wider effort to reduce ozone and particulate matter pollution in the eastern U.S., as evidenced by EPA’s recent adoption of more stringent SO2 and NOx standards.
EPA will be receiving public comment on each of the three proposed versions of the Air Transport Rule for 60 days following its publication in the Federal Register. Three public hearing will be conducted following the comment period, in locations to be announced in the Federal Register notice.
Dan Mach is a summer associate at Sive, Paget & Riesel, P.C.
[1] Factsheet, EPA, Proposed Transport Rule Would Reduce Interstate Transport of Ozone and Fine Particle Pollution, at 1 (July 6, 2010). See CAA 109(a), 42 U.S.C. § 7409(a).
[2] 70 Fed. Reg. 25,162 (May 12, 2005).
[3] EPA, Clean Air Interstate Rule: Basic Information, http://www.epa.gov/cair/basic.html (last visited July 16, 2010).
[4] North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008).
[5] EPA, Proposed Air Transport Rule, at 14.
July 9, 2010
In April 2008, EPA issued its Lead Renovation, Repair and Painting Rule, which required the use of lead-safe work practices during renovation, repair or painting activities in pre-1978 homes. The 2008 rule, however, allowed owner-occupants to “opt-out” of that requirement by certifying that there were no children under the age of 6 living in the home. As of July 6, 2010, owner-occupants no longer have that option and all such work in pre-1978 homes must be performed by a certified contractor in accordance with lead-safe practices. A copy of the May 6, 2010 final rule revoking the “opt-out” provision is available here.
EPA has also announced that it has reopened the comment period on its May 6, 2010 proposed rule to require dust wipe sampling after many types of renovations. Comments will be accepted until August 6, 2010.
Finally, in recognition of the difficulty contractors have experienced in locating available training classes, EPA issued a guidance document on the enforcement of the new lead rules. EPA will not initiate enforcement actions for violations of the firm certification requirement until October 1, 2010, and will not enforce certification requirements against individual workers provided that they apply to enroll in certification classes by September 30, 2010 and complete the required training by December 31, 2010. However, EPA will continue to enforce against firms and individuals who do not comply with the required lead-safe work practices and associated recordkeeping requirements. A copy of EPA’s Frequent Questions on EPA’s June 18, 2010 Implementation Guidance for the Renovation, Repair and Painting Rule is available here.
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