Envirosphere

On December 31, 2010, DEC announced the emergency adoption of revisions to the state regulation implementing the Clean Air Act's New Source Review (NSR) program.

The revisions conform to federal rules and include regulations for fine particulate matter (PM-2.5) and greenhouse gases as required by federal law. Failure to implement these revisions would have adverse impacts on public health and the general welfare of the state and requires the adoption of an emergency rule by DEC.

The EPA published its Greenhouse Gas Tailoring Rule in order to address impacts of greenhouse gases and subjected large stationary sources to regulation under the Clean Air Act beginning January 2, 2011. Smaller sources in New York will not be subject to the federal regulation of greenhouse gases beginning January 2, 2011. (DEC Press Release Dec. 31, 2010).

On December 15, 2011, EPA announced that it had agreed to conduct a preliminary human health risk assessment by June 2011 for the pesticide chlorpyrifos and to request public comments on its assessment as part of a proposed settlement with several environmental groups that seek to end agricultural uses of the chemical. Chlorpyrifos is a widely used organophosphate insecticide on agricultural crops such as cotton, corn, almonds, and fruit trees. The draft settlement stipulation was filed in the Southern District of New York.

The Natural Resources Defense Council (NRDC) and Pesticide Action Network North America filed a lawsuit under the Administrative Procedure Act and Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) in July 2010, alleging that EPA had yet to respond to a petition filed by the two groups that sought to cancel all uses of chlorpyrifos and revoke tolerances, which are regulatory limits on the amount of pesticides allowed in food. The environmental groups allege that the pesticide poses health risks to workers, consumers, and children, particularly those exposed to spray drift when the pesticide is applied to nearby fields.

Pursuant to the draft stipulation, the case is to be suspended if EPA issues its preliminary human health risk assessment for chlorpyrifos by June 1, 2011, and requests public comment on the completed assessment. EPA's 2001 re-registration eligibility decision (RED) for chlorpyrifos -- a document that details health concerns addressed by the agency and determines the settings in which the pesticide can continue to be used -- banned most residential uses of the pesticide. However, the 2001 RED and a revised re-registration eligibility decision issued in 2006 continued to allow the use of chlorpyrifos in agriculture. Environmental groups allege that such uses pose a threat to children when the pesticide is applied to fields. NRDC v. EPA , 10 Civ. 5590 (S.D.N.Y., settlement dated Dec. 15, 2010).

On January 14, 2011, the White House Council on Environmental Quality (CEQ) issued a guidance memorandum designed to increase the effectiveness of plans to mitigate a project's environmental impacts under the National Environmental Policy Act (NEPA).

Federal agencies typically rely on mitigation measures to reduce environmental impacts in an environmental assessment under NEPA. The guidance memorandum recommends steps on how to ensure that mitigation commitments are implemented, how to monitor the effectiveness of mitigation, how to remedy failed mitigation, and how to involve the public in the planning.

CEQ's guidance memorandum emphasizes documentation, stating that the decision document following the environmental assessment should--and a Record of Decision (ROD) must--identify those mitigation measures that the agency is adopting and committing to implement, including any monitoring and enforcement program.

The guidance also states that agencies should establish internal processes to ensure that relevant funding, permitting, or other agency approvals and decisions are made conditional on performance of mitigation commitments.

The guidance further states that monitoring is also critical, which includes oversight to see that mitigation commitments are implemented and use of information about significant new circumstances or information.

The guidance describes public involvement as a key procedural requirement of the NEPA review process, and states that it should be fully provided for in the development of mitigation and monitoring procedures. The guidance also states that agencies must provide for appropriate public involvement during the development of an environmental assessment and a finding of no significant impact, and calls for public access to mitigation and monitoring information consistent with NEPA and the Freedom of Information Act.