Environmental Review | Environmental Impact Assessment: December 2009

Tuesday, December 15, 2009

WDNR Environmental Assessment of Vessel General Permit

The Wisconsin DNR (WDNR) has recently completed its environmental assessment for the proposed issuance of a general permit to regulate the discharge of ballast water from ships into the waters of the State. This assessment, completed to comply with the Wisconsin Environmental Policy Act (WEPA) clears the way for WDNR to issue its final discharge permit.

On February 23, 2009, the WDNR public noticed a general permit for commercial vessels which includes effluent discharge standards for ballast water. This permit also included an aggressive compliance schedule for implementation. The permit specifies biological effluent discharge standards and biocide effluent limits that, based upon best professional judgment, represent the best practicable technology currently available pursuant to § NR 220.21, Wis. Adm. Code. WDNR believes a permit for regulating ballast water beyond what EPA has developed is necessary to prevent the release of additional aquatic invasive species (AIS) and protect water quality standards in Wisconsin. The 2010-11 biennial budget bill signed by Governor Doyle in July 2009 provided for statutory authority to establish a discharge performance standard for ballast water.

Wisconsin’s General Permit will require discharges of ballast water to meet numeric technology based effluent limits based upon the number of living organisms in the discharge by 2014 for all existing ocean-going ships. Vessels constructed on or after January 1, 2012 would have to meet these requirements prior to operation. The permit is intended to minimize the further release of aquatic invasive species. The general permit requires all ocean-going vessels to meet discharge standards set at 100 times more stringent than the IMO standards. This discharge standard is similar to that adopted by New York in its § 401 Water Quality Certification. Plans and specifications of the treatment systems would require approval by the Department, to confirm the treatment has been approved by the USCG or an equivalent approval process, is effective and would comply with the discharge standards.

There is an exemption in this permit when ballast water is pumped from a vessel off-ship for treatment on another vessel or to a ballast water treatment system on-shore. Additionally, the permit allows for an alternative discharge limit, if the technology is not available to meet the discharge standards by December 31, 2011.

The federal general permit (VGP), effective December 19, 2008, that applies to all discharges incidental to the normal operation of a vessel1 includes a technology based standard for all ocean-going vessels. This standard has been required by the United States Coast Guard (USCG) for all vessels that enter the St. Lawrence Seaway since March 2008 and has proven ineffective as the introduction of aquatic invasive species has continued. On August 28, 2009, the USCG published in the federal register a new proposed ballast water discharge standard rule which requires a phased approach to ballast water discharge standards, with IMO being required in phase-one, and up to 1000 times IMO standards in phase-two. WDNR general permit contains technology based effluent limitations that represent the best practicable control technology currently available.

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3 Year Look Back Rule For Environmental Review

The "Three Year Look Back Rule" under Minnesota Environmental Quality Board Environmental Review requirements addresses how to determine whether a proposed expansion of an existing project requires a mandatory EAW due to the combined size of the existing project and the proposed expansion. The existing project’s magnitude must be added to that of the proposed expansion under the following conditions:

Construction of the existing project commenced less than three years ago; and
The existing project was not reviewed through an EAW or EIS.

The purpose of the 3-year look-back rule is to identify phased actions that are subject to review. This provision does not require EAW review of any existing stages of the project. It only requires the RGU to include previous stages in the calculation to determine if the EAW mandatory threshold is exceeded, not to review completed construction.

Monday, December 14, 2009

EQB Mandatory Environmental Review Categories Proposed

The Minnesota Environmental Quality Board (EQB) is proposing amendments to environmental review rules adding several categories of projects that would require a Mandatory Environmental Assessment Worksheet (EAW) or a Mandatory Environmental Impact Statement (EIS). These amendments are in five areas:

New mandatory EAW, EIS, and Exemption categories that would apply to certain projects located in the shoreland areas of lake and rivers;
Amendments to how the rules handle treatment of “cumulative potential effects” in EAWs, EIS, and Alternative Urban Areawide Reviews (AUARs) in response to a 2006 Minnesota Supreme Court decision;
Amendments to the Alternative Urban Areawide Review (AUAR) process with respect to how specific individual projects are treated or how they affect the review;
A new mandatory EIS category for releases of genetically-engineered wild rice, in response to a legislative directive in the 2007 session; and
Miscellaneous other amendments to clarify the meaning of certain rule provisions.

US HUD Mandatory Vapor Intrusion Screening - ASTM E 2600

The U.S. Department of Housing and Urban Development (HUD) Office of Multifamily Housing has adopted Tier 1 vapor intrusion (VI) screens (the first of four tiers) under ASTM E 2600 as a mandatory component of Phase I environmental site assessments conducted under the agency's MAP (Multifamily Accelerated Processing) Guide. MAP is the procedure used by hundreds of MAP-approved lenders and HUD field offices throughout the country to process loan applications for Federal Housing Administration multifamily mortgage insurance.

Under the revised policy, a HUD Phase I ESA must include an initial vapor intrusion screen to determine if there is a potential for vapors to occur in the subsurface below existing and/or proposed on-site structures from those hazardous substances, petroleum and petroleum products that consist of VOCs, SVOCs and inorganic volatile compounds.

HUD is one of two Federal lending agencies that that prescribe additional mandatory requirements to a Phase I ESA. The Small Business Administration also has additional enviornmental review requirements for participation in its lending programs.

SBA Environmental Review / RSRA / Phase I Environmental Site Assessment Requirements

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Caltha Environmental Review Website

Friday, December 11, 2009

FTA Requirement For Energy Assessments During Environmental Review

Applications for Federal Transit Administration (FTA) assistance for the construction, reconstruction, or modification of buildings require completion of an energy assessment. The energy assessment must be documented as part of the Environmental Assessment or Environmental Impact Statement. For projects which do not require an environmental assessment or EIS, the energy assessment must be submitted with the application for FTA assistance for actual construction.

An energy assessment consists of an analysis of the total energy requirements of a building, including:

(1) Overall design of the facility or modification, and alternative designs;
(2) Materials and techniques used in construction or rehabilitation;
(3) Special or innovative conservation features that may be used;
(4) Fuel requirements for heating, cooling, and operations essential to the function of the structure, projected over the life of the facility and including projected costs of this fuel; and
(5) Kind of energy to be used, including:
(i) Consideration of opportunities for using fuels other than petroleum and natural gas, and
(ii) Consideration of using alternative, renewable energy sources.

Saturday, December 5, 2009

What Is A Phased Action For Environmental Impact Analysis?

Phased actions are often defined as two or more projects by the same proposer that will have environmental effects on the same geographic area and are substantially certain to be undertaken sequentially over a limited period of time. This definition usually involves three components:

Same proposer,
Same area affected, and
Timing.

The third component, the relative timing of the phases, involves the most uncertainty and therefore is often the most difficult component to apply.

Environmental Review For Connected Projects - Connected Actions

Certain types of projects are regulated as "connected actions" for purposes of defining a project for environmental review. Three types of relationships between projects often qualify as connected actions:

One induces the other;
One is a prerequisite for the other and is not justified by itself (the first occurring previously or simultaneously); or
Neither is justified by itself; that is, the two projects are interdependent parts of a larger whole.

Whenever two or more projects are related in any of these ways, they may have to be considered as one project, regardless of ownership or timing.

It is not common for projects to be “connected actions.” Common examples of connected actions include multi-site animal feedlots or when a major development project triggers construction of public infrastructure, such as a road or sewer that would not otherwise be needed.

State Environmental Review - Environmental Assessment

FTA Categorical Exclusion - State Environmental Review

The Federal Transit Administration (FTA) has developed specific categories for environmental review in compliance with NEPA. For certain types of projects, FTA may require project proposers to complete sufficient environmental analysis such that FTA can determine that the proposed project meets the criteria for a Categorical Exclusion (CE) under 27 CFR 771.117(d). By meeting these criteria, FTA will meet Categorical Exclusion criteria under NEPA (40 CFR 1508.4), and ultimately neither the proposer nor FTA will be required to conduct an Environmental Assessment as prescribed under 27 CFR 771.119. FTA could then take actions, including providing project funding.

In States which have their own State environmental review requirements, environmental review requirements may apply, even if a project meets the requirements for an FTA Categorical Exclusion.

Sixty Day Rule - Minnesota Environmental Review

With some exceptions, Minnesota Statute 15.99 requires that an agency must approve or deny within 60 days a written request relating to some specific petitions, including

zoning,
septic systems,
watershed district review,
soil and water conservation district review, or
expansion of the metropolitan urban service area for a permit, license, or other governmental approval of an action.

Failure of an agency to deny a request within 60 days is approval of the request. If an agency denies the request, it must state in writing the reasons for the denial at the time that it denies the request.

The “sixty day rule” (MN Statute 15.99) does not apply to projects that are going through the environmental review process. Because environmental review decisions can often take months (and in some cases years) to be reached, environmental review is one of the exceptions to the rule. The clock stops ticking on the “sixty day rule” until environmental review has been completed and, once environmental review has been completed, the clock is reset at 60 days.

Tuesday, December 1, 2009

Wisconsin Environmental Policy Act WEPA

The Wisconsin Environmental Policy Act (WEPA) is a state law designed to encourage environmentally sensitive decision making by state agencies. WEPA spells out the state's environmental policy and requires the WDNR and other state agencies to consider the environmental effects of their actions to the extent possible under their other statutory authorities. It also establishes the principle that broad citizen participation should be part of environmental decision-making. WEPA imposes procedural and analytical responsibilities on the DNR and other agencies, but does not provide authority to protect the environment. While this law does not apply to local government decisions, local projects involving state financial assistance or regulatory oversight are affected by it.

WEPA requires the WDNR and other state agencies to gather relevant environmental information and use it in their decision-making. Agencies must also look at appropriate alternatives to the particular course of action they are proposing. If the action is a "major action significantly affecting the quality of the human environment," the law requires agencies to consult with other agencies about possible environmental impacts, prepare and circulate an environmental impact statement (EIS), and hold a public hearing.

WEPA applies only to the actions of state agencies. The law does not apply to local governments or private parties unless their actions involve state agency regulation or funding. Application of the law in state agency decision making has limitations, including not allowing the agency to substitute an alternative to what is proposed.