Draft Revisions to The New York State Hazardous Waste Management Regulations are Open for Public Comment

Environmental Law

The New York State Department of Environmental Conservation (“NYSDEC”) released a draft of proposed amendments to the Hazardous Waste Management Regulations (6 NYCRR Parts 370-374 and 376) on February 4, 2015. The proposed amendments were released as a “Draft for Consideration” (DFC) that is being made available for informal public comments before the draft regulations are formally proposed and published in the State Register. NYSDEC will accept written comments to the proposed amendments through April 6, 2015.

As an authorized state for the hazardous waste management program in lieu of the United States Environmental Protection Agency (“EPA”), the State must adopt regulations at least as stringent as EPA’s hazardous waste regulations. The draft amendments propose to incorporate thirty-seven (37) federal rules that were federally adopted from January 2002 through April 2012. The State is not mandated to adopt federal rules that decrease regulatory stringency and a number of less stringent rules will not be adopted.

In addition, NYSDEC is proposing several State-initiated changes to the existing regulations to provide clarification and to correct errors. Some of the proposed State-initiated changes will make certain regulations less stringent than they are currently, but not less stringent than EPA’s regulations. They will improve management of waste streams or processes, while maintaining protection of public health and the environment.

NYSDEC is seeking comments on the proposal to adopt the following EPA rules:

  • EPA’s Solvent Contaminated Wipes Rule of July 31, 2013—This rule revises the definition of solid waste to conditionally exclude solvent-contaminated wipes that are cleaned and reused and revises the definition of hazardous waste to conditionally exclude solvent-contaminated wipes that are disposed. NYSDEC currently has a policy that encourages reuse of industrial rags and soiled clothing (Policy DSW-HW-03-09, “Regulatory Status of Laundered Industrial Rags and Soiled Clothing”). However, since the state policy is less stringent in several ways than the EPA rule, NYSDEC must either rescind or revise the policy, or promulgate regulations. To read about the options NYSDEC is exploring, see http://www.dec.ny.gov/regulations/100442.html
  • EPA’s Carbon Dioxide Sequestration Rule of January 3, 2014—Captured Carbon Dioxide (CO2) is not typically considered a waste under the hazardous waste regulations. However, CO2 that is injected in underground injection control wells solely for the purpose of long-term storage is considered by EPA to be a “discarded material,” and thus a waste, and potentially a hazardous waste. This rule would exclude carbon dioxide streams from being classified as hazardous waste if certain conditions are met. For more information about the Carbon Dioxide Sequestration Rule, see http://www.dec.ny.gov/regulations/100557.html
  • EPA’s Hazardous Waste Electronic Manifest (e-Manifest) Rule—This rule provides the legal and policy framework to authorize the use of electronic manifests. The electronic system must go into effect in all states at the same time, regardless of whether the individual states have adopted effective regulations. Although the start-up date has not been established yet, it is expected to be later in 2015. Authorized states are required to adopt equivalent and consistent provisions. NYSDEC is considering no longer collecting hard copy forms from hazardous waste generators, transporters, and disposal facilities using the e-manifest system. For more information about the Electronic Manifest Rule, see http://www.dec.ny.gov/regulations/100585.html
  • EPA’s 2008 Definition of Solid Waste Rule, as amended in January 2015—This rule redefines “hazardous secondary materials” and is intended to make it easier and more cost-effective to safely recycle hazardous secondary material. In order to maintain regulations that are as stringent as EPA’s regulations, NYSDEC must adopt the revised definition of “legitimate recycling,” the prohibition of sham recycling, and new record-keeping requirements to demonstrate that material is not accumulated speculatively. If NYSDEC does not meet the deadline to adopt the more stringent provisions, EPA will have the authority to enforce those provisions in New York State. For more information on the Definition of Solid Waste Rule, see http://www.dec.ny.gov/regulations/100652.html
  • Amendments to NYSDEC’s Used Oil Management Regulations (6 NYCRR Subparts 374-2 and 360-14)—These amendments include possible revisions that would no longer require Petroleum Bulk Storage (PBS) registration for certain small used oil tanks; possible revisions that allow used oil collection centers collecting used oil in small volumes to obtain a Part 360 registration and more closely follow EPA requirements in lieu of obtaining a Part 360 permit; possible revisions to replace the current vehicle-to-vehicle exemption and 10-day exemption with a Part 360 registration requirement; and possible revisions to time required to retain certain records from 7 years to 3 years to more closely conform with the state’s Part 370-374 and 376 hazardous waste management regulations, and EPA’s Part 279 used oil management regulations. For more information on the proposed changes to the Used Oil Management Regulations, see http://www.dec.ny.gov/regulations/100657.html


To assist the public in understanding the draft regulations, NYSDEC will hold a public information meeting at the NYSDEC Central Office on 625 Broadway in Albany, on March 10, 2015, 1:00 pm – 3:00pm. Pre-registration is encouraged.

For more information on hazardous waste management, please contact Miriam Villani or Jenna Gallagher.

Posted by Miriam Villani

New Air Quality Standards May Impact Local Industries

Environmental Law


On November 25, 2014, the Environmental Protection Agency (the “EPA”) released long awaited proposed rules intended to strengthen the O3 National Ambient Air Quality Standards (NAAQS) for ground-level ozone in the United States (40 CFR Parts 50, 51, 52, 53, and 58).  These rules are expected to impact a number of industries, especially the manufacturing and agriculture sectors.  The EPA is currently accepting comments on the proposed rule and will continue to do so until March 17, 2015.  Anyone impacted by the proposed rule is encouraged to submit comments at https://www.federalregister.gov/articles/2014/12/17/2014-28674/national-ambient-air-quality-standards-for-ozone.

Ground-level ozone, commonly referred to as “bad ozone,” is created by chemical reactions between nitrogen oxides and volatile organic compounds.  Unlike “good ozone,” which is created in the upper atmosphere and helps to protect the earth from some of the sun’s harmful ultraviolet rays, bad ozone is created by pollutants from, among other things, manufacturing and motor vehicle emissions.  Under the Clean Air Act, the EPA is required to set two standards for ground-level ozone: a “primary standard” to protect public health, including at-risk groups (children, the elderly, and those with lung-related diseases), and a “secondary standard” to protect the public welfare, including the environment and plant life.  In an effort to protect both the public health and welfare, the EPA is proposing new primary and secondary standards.

Under the proposed rule, both standards measuring the amount of O3 in the air would be strengthened from the existing 75 parts per billion (75 ppb) to a measurement within the range of 65 to 70 ppb.  The EPA is also taking comments on decreasing the range as low as 60 ppb for the primary standard.  Simply explained, the standards would be measured by a “daily maximum 8-hour average,”[1] meaning that the daily “concentration” is determined by taking the highest 8-hour average for the 17 8-hour periods starting between 7:00 A.M. and 11:00 P.M. (e.g. the first 8-hour period being 7:00 A.M. through 3:00 P.M., the second being 8:00 A.M. through 4:00 P.M., etc.).[2] The fourth highest daily maximum 8-hour average of O3 concentration would be averaged for three years to determine if a site area has met the new standards.[3] These measurements would be made using a chemiluminescence analyzer.[4] Implementation of methods to satisfy these new standards will be the responsibility of each state, although the EPA expects most counties to meet the standards by 2025.

This new standard could have a substantial impact on many local industries.  In particular, because power plants and other large-scale emitters have already been outfitted with reduction technologies to decrease ozone pollutants, the cost of targeting these emitters may be prohibitive.  This may cause other industries to shoulder much of the reduction cost.  It is foreseeable that the manufacturing, agriculture, and transportation industries could be encouraged to adopt “low-emission technologies” and discontinue the use of older equipment.  Such technologies include new electric-hybrid and alternative fuel vehicles, CFC free refrigeration and air-conditioning systems, and scrubbers for boilers.[5] While these technologies have become more commercially solvent over the past decade or two, the costs of retrofitting entire vehicle fleets or shops may prove costly in these sectors.  The impact on local industries, such as Long Island’s agricultural sector and municipal transportation systems, may be substantial.  Many industries, however, may have already adopted these cleaner technologies and may not deem it necessary to make such alterations.  It should also be noted that Long Island’s healthcare industry may feel a bit of a pinch in adopting these new technologies, but it should also see a slight shrinking of demand moving forward as a result of the potential health benefits stemming from the rule’s implementation.

The EPA has published estimated costs and benefits for the new standards in the billions of dollars.[6] According to EPA’s calculations, the nationwide costs of strengthening the standard to 70 ppb by 2025 would be approximately $3.9 billion.  To strengthen the standard to 65 ppb by 2025 would cost an estimated $15 billion.  These estimates exclude California because the EPA has granted extensions to several counties to meet these standards.  California’s estimated costs are $800 million for 70 ppb and $1.6 billion for 65 ppb.  Despite these projected costs, EPA estimates the benefits to be tremendous.  The EPA expects that reducing the ground level ozone to the proposed levels will yield annual health benefits of $6.4 billion to $13 billion at 70 ppb and $19 billion to $38 billion for 65 ppb.  California estimates the benefits in its state to be $1.1 billion to $2 billion for 70 ppb and $2.2 billion to $4.1 billion for 65 ppb.  Money aside, the EPA also estimates anywhere from 750 to 4,300 fewer premature deaths and 790 to 2,300 fewer cases of acute bronchitis in children.[7] Asthma-related emergency visits should also decrease, among other things.

Industry groups have already published studies in opposition to the proposed rule claiming that the implementation costs and the economic consequences of the rule will be severe.    For example, the National Association of Manufacturers commissioned a study highlighting the negative economic impacts of the rule[8] and several politicians, including Speaker of the House John Boehner, have claimed that the rule would have serious impacts on national GDP, family budgets, and national workforce growth.[9] According to opponents, the long-term costs of the proposed rule include an annual reduction of the national GDP by billions of dollars, a decrease in average household consumption, and an increase in energy costs.  Some opponents to the rule simply argue that there is insufficient evidence to encourage stricter standards.[10]

Please remember that the comment period for this Rule is open through March 17, 2015.  The rule will likely impact many regional industries and we encourage all who may be affected to submit a comment.  If you have any questions regarding the proposed amendments to 40 CFR Parts 50, 51, 52, 53, and 58, or air emissions in general, please contact Miriam E. Villani or Michael J. Barone, Jr.


The author acknowledges Michael J. Barone, Jr., for his contribution to this article.

[1] Environmental Protection Agency, 79 F.R. 75234, 75396 (Proposed December 17, 2014).

[2] Id. at 75402.

[3] Id. at 75396.

[4] Id. at 75397.

[5] EPA, Regulatory Impact Analysis of the Proposed Revisions to the National Ambient Air Quality Standards for Ground-Level Ozone at 7-19,http://www.epa.gov/ttn/ecas/regdata/RIAs/20141125ria.pdf.

[6] Id. at 8-4.

[7] Id. at ES-14 – ES-15.

[8] Assessing Economic Impacts of a Stricter National Ambient Air Quality Standard for Ozone, Nera Economic Consulting (July 2014), http://www.nam.org/Issues/Environment/Ozone-Regulations/NERA-NAM-Ozone-Full-Report-20140726.pdf.

[9] Joe Koncelik, EPA’s Long Anticipated Ozone Decision, Ohio Environmental Law Blog (Dec. 1, 2014), http://www.ohioenvironmentallawblog.com/tags/naaqs/.

[10] Coral Davenport, E.P.A. Ozone Rules Divide Industry and Environmentalists, N.Y. Times, (Nov. 26, 2014), available at: http://www.nytimes.com/2014/11/27/us/epa-ozone-limits-divide-industry-and-environmentalists.html?_r=0.


Posted by Miriam Villani