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April 11, 2014

Industry and Consumer Update: Responsible Electronics Recycling

By: Maggie Macdonald — Filed under: Compliance, Emerging Issues, Enforcement, RCRA, Solid Waste — Posted at 3:53 pm

Changes are happening in the electronic equipment recycling field; by next year, these changes will significantly affect recyclers, municipalities, property managers, and even individual homeowners.  These include, most notably, an absolute ban on disposing electronic equipment throughout New York State and national changes to the R2 Responsible Recycling and e-Stewards standards, which affect recyclers nationwide.

Background

The potential environmental impact of improper electronic waste disposal is severe.  Perhaps the most compelling presentation of the need to address this issue came in the 2008 60 Minutes piece called “Electronic Wasteland.”  Since then, electronic waste disposal in many jurisdictions has been regulated to prevent adverse impacts; in New York State, electronics recycling is governed by the 2010 Electronic Equipment Recycling and Reuse Act.  On a federal level, the enforcement of hazardous waste exporting requirements under the Resource Conservation and Recovery Act has helped to ensure that hazardous materials contained in electronic equipment are managed properly.

Disposal Ban

Under New York State’s law, disposing of electronic waste at a solid or hazardous waste facility has been banned in stages.  In April 2011, manufacturers and retailers were banned from disposing of electronic waste. In January 2012, all other entities except for individuals and households were similarly banned.  This ban on disposal extends to individuals and households starting on January 1, 2015.

Responsible Recycling

All companies carrying out electronics recycling must be licensed with the New York State Department of Environmental Conservation and must file annual reports stating the origin, destination, and weight of material collected, processed and resold.

In addition to complying with state law requirements, many recyclers have chosen to become certified under independent industry standards through accredited auditing agencies.  The standards for electronics recycling are the R2 Responsible Recycling Standard and the E-Stewards Standard.  Working with a recycler that has attained and maintained certification to either of these standards provides additional assurance that the materials being recycled will not end up polluting the environment.

New Requirements for Certified Recyclers

Last year, the R2 Standard went through a round of updates which take effect this year.  All R2 certified recyclers must now obtain either RIOS certification (another independent standard for recyclers) OR obtain both ISO 14001 (environmental management standard) and ISO 18001 (worker health and safety standard).  R2 recyclers must transition to the R2:2013 standard by December 2014.

Similarly, the e-Stewards Standard was revised in the last year, and all recyclers certified under the e-Steward standard must be re-certified under the e-Steward 2.0 Standard starting May 1, 2014. Notable changes in the e-Steward standard include heightened data security requirements and air quality and noise restrictions.

For more information on electronics recycling, contact Michael Bogin or Maggie Macdonald.



April 3, 2014

New York Appellate Court Rejects Challenge to Harlem River Yards Project

By: Steven Barshov — Filed under: Announcements — Posted at 6:48 pm

In a unanimous decision, the New York State Supreme Court Appellate Division recently affirmed the dismissal of a challenge to the relocation of Fresh Direct into the Harlem River Yards in the South Bronx.

The petitioners, a coalition of local residents and community organizations, challenged the sufficiency of the environmental review of the project, as well as the legality of the sublease to Fresh Direct and the constitutionality of the lease from the New York State Department of Transportation to Harlem River Yards Ventures Inc. (HRYVI), the sublessor.  Sive, Paget & Riesel represented HRYVI before both the Supreme Court and Appellate Division.

Last June, a Bronx County Supreme Court Justice dismissed petitioners’ challenge in its entirety.

On March 27, 2013, the Appellate Division, First Department upheld that ruling,  finding that the negative declaration issued for the project was based on the requisite “hard look” and supported by an appropriately reasoned elaboration.  The Court sustained the use of an “incremental” analysis in which the potential traffic impacts of the Fresh Direct operation (based on updated traffic data) were compared to traffic volumes and potential impacts previously analyzed in an Environmental Impact Statement (“EIS”) prepared in connection with the Harlem River Yards, including a wholesale flower market proposed for the same project site, but which had never been built.  Finally, the Appellate Division sustained the lead agency’s conclusion that no Supplemental EIS was required because the projected traffic impacts from the Fresh Direct project were not anticipated to be any worse  than those previously analyzed in the prior EIS for the wholesale flower market.

For more information on the Court’s decision and the Fresh Direct project, contact Steven Barshov, who was lead counsel for HRYVI.



April 2, 2014

New York State Enacts Budget Without Proposed Brownfield Cleanup Program Reforms

By: Jonathan Kalmuss-Katz — Filed under: Brownfield Cleanup, New York Environmental Law — Posted at 10:21 am

This week, New York State enacted an approximately $140 billion budget for 2014-2015 fiscal year without the sweeping Brownfield Cleanup Program (“BCP”) reforms recommended in Gov. Andrew Cuomo’s initial budget proposal last January. The final budget agreement, signed by Gov. Cuomo on April 1, 2014, includes no changes to the BCP, leaving in place the existing December 31, 2015 deadline for BCP sites to complete remediation and receive a Certificate of Completion (“COC”) from the New York State Department of Environmental Conservation (“NYSDEC”) in order to qualify for Brownfield-related tax credits.

The BCP provides certain liability protections and tax credits for the remediation and redevelopment of eligible brownfield sites. Gov. Cuomo’s proposed budget – first released in January 2014 – would have created separate eligibility criteria for BCP acceptance and brownfield tax credits, limited the time period for brownfield developers to claim certain tax credits, and extended the December 31, 2015 deadline for sites accepted into the BCP on or after June 23, 2008. The New York State Senate set forth its own package of BCP reforms in its proposed budget legislation, including an extension of the current sunset date for tax credit eligibility. The State Assembly, however, did not include significant BCP amendments in its budget proposal. Under pressure to finalize a budget agreement before the April 1 expiration of the 2013-2014 fiscal year, the Senate and Assembly passed the budget shortly before midnight on March 31, 2014 without either the Governor’s or the Senate’s proposed BCP changes.

Now that the budget has been completed, the legislature is expected to take up the issue of BCP reform in its regular legislative session, although the contents of such proposals have yet to be seen. In the absence of legislative action, all parties seeking BCP-related tax credits will be required to obtain a COC by December 31, 2015, a target that is becoming increasingly difficult for new BCP applicants and recently-admitted sites. For more information on the BCP and the proposed legislative reforms, contact Christine Leas or Jennifer Coghlan.



March 28, 2014

Obama Administration Proposes New Regulations Clarifying Scope of Clean Water Act Jurisdiction

By: Jonathan Kalmuss-Katz — Filed under: Administrative Law, Clean Water Act — Posted at 1:49 pm

On March 25, 2014, the U.S. Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (the “Army Corps”) proposed new regulations to clarify the scope of the agencies’ jurisdiction over wetlands, intermittent streams, and other “navigable waters” under the Clean Water Act (“CWA”), an issue addressed but not conclusively resolved in a 2006 Supreme Court decision.

The CWA requires a permit for the point source discharge of any pollutant, or for the disposal of any dredged or fill material, into “navigable waters,” which are defined in the statute as “waters of the United States.”  The CWA does not provide any further definition of that term, and prior EPA and Army Corps regulations  interpreted “waters of the United States” broadly, covering not only “navigable in fact” waterways but also adjacent tributaries and wetlands, intermittent streams, mudflats, and more.

The Supreme Court addressed the scope of CWA jurisdiction in Rapanos v. United States, a 5-4 decision that is most notable for Justice Kennedy’s concurring opinion.  In his concurrence, Justice Kennedy interpreted the CWA to cover wetlands with a “significant nexus to waters that are or were navigable or could reasonably be so made.”  In the absence of revised regulations, however, this “significant nexus” test had to be applied on a case-by-case basis, a burdensome exercise that resulted in considerable uncertainty about the reach of the CWA.

The recently proposed regulations aim to reduce this uncertainty by adding a new definition of “navigable waters” and clarifying the CWA’s application to broader categories of wetlands and water bodies.  Under the EPA/Army Corps proposal, all tributaries to navigable waters – including intermittent or seasonal streams – would be subject to CWA jurisdiction, along with their adjacent wetlands.  EPA estimates that approximately 60 percent of all U.S. stream miles only flow seasonally or after rain, and that most of those waters would be regulated under the proposed rule.

Other wetlands and water bodies not expressly covered by the new definitions would still be subject to a site-specific “significant nexus” analysis, although EPA is soliciting comment on whether to make categorical nexus determinations for “similarly situated waters in certain geographic areas.”  In addition to the proposed rule, EPA and the Army Corps issued a final interpretative rule affirming that 53 agricultural conservation practices listed by the United States Department of Agriculture will remain exempt from Army Corps permitting requirements under CWA Section 404.

For more information on the CWA and wetlands permitting, contact Mark Chertok.



March 21, 2014

EPA Finalizes Stormwater Permitting Rule for Construction and Development Point Source Discharges

By: Adam Stolorow — Filed under: Stormwater — Posted at 5:29 pm

Pursuant to a settlement agreement reached between the EPA and housing trade groups, the EPA has finalized revisions to the effluent limitations guidelines and standards for the Construction and Development (“C&D”) point source category under the Clean Water Act.  The practical effect of the revised C&D rule is that it eliminates the numeric limitations for turbidity in stormwater discharges from construction sites, in favor of non-numeric effluent controls and best management practices for reducing the effects of erosion and scour on water quality.  EPA had previously included numeric limitations for turbidity in its 2009 C&D rule but had stayed implementation of the numerical limitations as a result of several legal challenges to the rule. 

The C&D rule has broad applicability, as it covers construction activities such as clearing, grading, and excavating at sites where one or more acres of land will be disturbed.  Improperly managed soil at construction sites can be easily washed off during storms and has the potential to negatively impact nearby water bodies. 

The non-numeric requirements of the C&D rule, including implementation of erosion and sediment controls, stabilization of soils, management of dewatering activities, and other effluent controls, took effect in 2012 for construction activities requiring NPDES permits.  For projects in New York state, the Department of Environmental Conservation Construction General Permit (“CGP”) expires in 2015; any necessary updates to the CGP resulting from the EPA C&D rule are likely to be incorporated into the revised CGP permit due in 2015.

The final EPA C&D rule, available here, goes into effect May 5, 2014.  For more information on stormwater regulations, contact Michael Bogin.



March 14, 2014

House of Representatives Votes to Set Deadlines for Environmental Review

By: Ed Roggenkamp — Filed under: Environmental Impact Review, NEPA, SEQRA — Tags: Posted at 5:47 pm

On March 6, the House of Representatives approved the Responsibly and Professionally Invigorating Development (“RAPID”) Act, a bill that would, for the first time, impose deadlines on environmental impact review under the National Environmental Policy Act (“NEPA”). The bill includes a 4 ½ year deadline for the environmental review process, including an 18-month deadline for an environmental assessment and a 3-year deadline for creation of an environmental impact statement (“EIS”). It would also impose a 6-month statute of limitations on suits challenging an agency’s environmental review, as opposed to the 6-year statute of limitations currently applied under the Administrative Procedure Act. These deadlines would apply to projects that are currently pending, and the bill includes a provision deeming any project approved if the deadlines for NEPA review are missed.

While the legislation is unlikely to be approved by the Senate in the near future – and has received a veto threat from the White House – it joins a list of several recent pieces of legislation seeking to streamline the environmental review process, at both the state and federal level. For example, the House and Senate versions of the 2013 Water Resources and Development Act (“WRDA”) reauthorization bill included provisions requiring the lead agency to established a schedule for the completion of the environmental review process, limiting the length of public comment periods under NEPA for WRDA  projects, and, in the House bill, limiting the statute of limitations for challenges to WRDA projects to 150 days.  That bill is currently before a conference committee to resolve differences between the House and Senate versions.

In New York, the Department of Environmental Conservation (“NYSDEC”) intends to propose revisions to the State Environmental Quality Review Act (“SEQRA”) regulations, as set forth in a 2012 scoping document. One such change would deem a draft EIS to be final if the lead agency has not acted on it within 180 days of finalizing its response to public comments.  While existing SEQRA regulations contain deadlines for the completion of a final environmental impact statement, they are regularly ignored and do not provide for the default issuance of a final environmental impact statement if the deadlines are missed.

For more information about NEPA and SEQRA review, contact David Paget.



March 13, 2014

SPR Prevails at Trial on Behalf of Domino Sugar Refinery

By: Maggie Macdonald — Filed under: Announcements — Posted at 6:18 pm

SPR attorneys Dan Chorost and Maggie Macdonald recently secured a trial victory for American Sugar Refining, Inc. (“American Sugar”), owner of the 100-year old “Domino” sugar refinery in Yonkers, New York. The Honorable Judge Mary Smith of the New York State Supreme Court, Westchester County, issued her decision from the bench, awarding American Sugar approximately $1.3 million in damages.

American Sugar brought the lawsuit to recover its down payment for a large boiler intended for use at the Yonkers refinery. However, delivery of the boiler was delayed and the purchase ultimately was cancelled. Thereafter, the defendant manufacturer resold the boiler but refused to return any of American Sugar’s progress payments, which had amounted to 90% of the purchase price.

After SPR prevailed on summary judgment against the broker who arranged the boiler sale, American Sugar proceeded to trial against the boiler manufacturer itself, which had retained the majority of ASR’s payments. After trial, Judge Smith ruled that American Sugar was entitled to all of the damages it sought, either as a third party beneficiary of the contract between the manufacturer and the broker or alternatively under the equitable theory of unjust enrichment. The boiler manufacturer did not appeal the decision.

For more information on SPR’s litigation practice, contact Dan Chorost or Maggie Macdonald.



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