May 10, 2012
On May 1, 2012, the New York City City Council unanimously approved changes to the New York City Zoning Resolution that will encourage green construction for new buildings and green retrofits for existing buildings, along with other innovations. Subject to certain limitations, the amendments will allow building owners to incorporate elements of environmentally-friendly construction even when those elements would otherwise violate applicable bulk regulations, such as restrictions on building size or height. Other amendments will allow solar power generation or charging of electric vehicles in certain zones, clarifying regulations that were originally written to exclude gas stations and conventional power plants.
Existing buildings will now be able to add up to eight inches of insulation to their exterior even if the added material would violate existing regulatory limits on building size. The changes to the zoning regulations allow existing buildings to add insulation without counting such additional thickness against floor area restrictions, so long as the additional insulation meets certain energy-efficiency requirements. Similar revisions permit existing buildings to add up to eight inches of insulation without counting them against a building’s maximum height or the minimum setback and open space requirements, and allow new buildings to incorporate thicker insulation in their exterior walls if the insulation exceeds the requirements of the New York City Energy Conservation Code by a specified percentage.
Other changes are designed to encourage the use of solar energy for power generation. The revised regulations allow buildings to add solar energy systems to their roofs without counting them against a building’s maximum height. The solar panels themselves must meet additional height restrictions according to the building’s zoning designation and whether the roof is flat or angled. Buildings will also be allowed to add solar panels or exterior solar shades to their exterior walls as “permitted obstructions” that can project into open space required by the zoning code.
The new zoning rules also allow several other environmentally-friendly elements as “permitted obstructions” on building roofs. These include wind turbines on buildings over 100 feet tall and buildings near the waterfront, rooftop greenhouses, like the one planned for Sunset Park, “blue roofs” that use weirs and detention mechanisms to slow the release of stormwater, and “green roofs” that use rooftop vegetation to retain water, reduce heat gain, and provide recreational space. The rules also permit boilers to be placed on building roofs, rather than in the basement. This eliminates the need for interior chimneys, increases energy efficiency, and reduces fire risk.
For more information on the New York City Zoning Resolution, please contact Steven Barshov.
May 2, 2012
Last month, the U.S. Environmental Protection Agency (“EPA”) issued its first-ever regulations governing emissions of air pollutants from hydraulically fractured natural gas wells, requiring natural gas producers to install new equipment to capture wellhead emissions on new or re-drilled wells no later than January 2015.
In addition to releasing natural gas (methane) that is recovered and sold as the main product of the hydraulic fracturing (or “fracking”) process, fracking also releases excess methane, benzene, hexane, volatile organic compounds (“VOCs”) and other pollutants that escape from the wellhead into the air, particularly during the stage of well “completion”, when newly drilled wells transition from the drilling phase to production phase. Each of these gases has environmental impacts. Methane is a greenhouse gas twenty times more powerful than carbon dioxide. Benzene (a human carcinogen) and hexane are toxics with known human health impacts, while VOCs contribute to the formation of smog. EPA’s regulations will require natural gas producers to capture these emissions at the wellhead using add-on equipment known in the industry as “green completions” or “reduced emissions completions.” Such equipment is already required by state regulations in Wyoming and Colorado.
While EPA initially proposed that the regulations would go into effect immediately, the final regulations only require natural gas producers to have green completions equipment installed on new or re-drilled wells by January 2015. The natural gas industry had lobbied for the delay in implementation, and EPA cited the lack of sufficient supplies of green completions equipment as the reason for the delay until 2015. Well operators will be required to flare their emissions until the new technology is installed.
The EPA estimates that green completions technology will be cost effective for the industry because the captured methane gas can be sold, and because natural gas companies currently using the technology have reported that green completions can be a profitable addition to their wellhead operations.
The full text of the regulations is available here.
April 26, 2012
Earlier this month, a federal court in New Jersey denied Lockheed Martin Corporation’s (“Lockheed Martin’s”) motion to dismiss state and federal claims alleging personal injuries and reduced property values arising from soil vapor intrusion. Leese v. Lockheed Martin Corp., No. 11-5091, 2012 U.S. Dist. LEXIS 50963 (D.N.J. April 11, 2012). This decision allows the case to proceed to discovery and a potential trial on the merits. This case and others like it highlight the importance of considering vapor intrusion impacts in property and corporate transactions, especially when there are known or suspected off-site contaminant plumes. In addition to private party litigation, vapor intrusion is increasingly capturing the attention of regulators in New York and elsewhere, causing them to reopen remediations that were previously thought to be complete.
In Leese v. Lockheed Martin Corp., plaintiffs Michael and Ashley Leese and their minor children allege that groundwater under their property and indoor air within their home are contaminated with trichloroethylene (“TCE”) and tetrachloroethylene (“PCE”) released from defendant Lockheed Martin’s neighboring property.
Lockheed Martin remediated TCE contamination at its property under an agreement with the New Jersey Department of Environmental Protection (“DEP”), and, at DEP’s request, conducted near-slab and sub-slab soil vapor testing at surrounding residences. Lockheed Martin’s testing revealed elevated levels of PCE beneath the Plaintiffs’ property, and the Plaintiffs’ subsequent air quality testing detected PCE in the basement and first floor of their home. Plaintiffs filed suit under the New Jersey Spill Act, the New Jersey Water Pollution Control Act, the Resource Conservation and Recovery Act, and New Jersey common law under theories of nuisance, trespass, strict liability and negligence.
In support of its motion to dismiss, Lockheed Martin argued, among other grounds, that there was no possible connection between TCE in the groundwater underneath the Plaintiff’s home and any residential exposure. The Court rejected that claim, citing the Environmental Protection Agency’s finding that “TCE can be released into indoor air from … vapor intrusion … and volatilization from the water supply.”
Viewing the facts in a light most favorable to the Plaintiffs, the Court found that Plaintiffs had given Lockheed Martin sufficient notice of their claims and raised a reasonable expectation that discovery would reveal evidence to support all of their claims. As the Court noted, depending on the nature of the facts unearthed throughout the discovery process Plaintiffs may still face a summary judgment motion by Lockheed Martin. Regardless of the ultimate outcome of this case, this decision demonstrates the courts’ willingness to recognize vapor intrusion as a legitimate basis for environmental claims, and serves as a valuable reminder to be cognizant of potential liability arising from vapor intrusion.
Sive, Paget & Riesel represents a number of property owners on matters relating to vapor intrusion. For more information on this topic, please contact Christine Leas, Jeffrey Gracer or Michael Bogin.
April 18, 2012
Two recent events signal New York’s continuing interest in promoting offshore wind development. First, on March 30, 2012, New York signed a Memorandum of Understanding (“MOU”) intended to streamline offshore wind development in the Great Lakes. The MOU was also signed by Pennsylvania, Illinois, Michigan, Minnesota and several federal agencies with regulatory authority touching on Great Lakes wind development, including the Environmental Protection Agency (“EPA”), the Army Corps of Engineers, the National Oceanic and Atmospheric Administration (“NOAA”) and the White House Council on Environmental Quality (“CEQ”). The MOU signatories agreed to work together to create and publish a regulatory roadmap for offshore wind development in the Great Lakes within 15 months, with CEQ serving as the primary federal point of contact.
Second, on April 3, 2012, the Renewable Energy Task Force of the Bureau of Ocean Energy Management-New York (“BOEM-NY”) convened a meeting to discuss New York’s ongoing activities regarding offshore wind development in the Atlantic, including the progress of studies intended to support a forthcoming proposal to amend the state’s Coastal Zone Management Program to include Atlantic wind development. The Task Force also discussed the New York Power Authority’s request that BOEM grant a commercial lease on the outer continental shelf to the Long Island-New York City Offshore Wind Collaborative, and the process and timeline for BOEM’s leasing decision and environmental impact review.
For more information, please contact Michael Bogin
April 12, 2012
The recently-enacted 2012-2013 New York State Budget has eliminated one of the State’s longstanding administrative institutions: the Freshwater Wetlands Appeals Board (“FWAB”). The FWAB was established in 1976 to provide a specialized forum for the expeditious review of Department of Environmental Conservation (“DEC”) decisions involving freshwater wetlands, as an alternative to Article 78 proceedings under the Civil Practice Law and Rules. The Budget Bill repeals the FWAB’s enabling legislation but authorizes the FWAB to decide its pending cases. No new cases can be heard.
For more information, contact Michael Bogin, who also serves as a member of the FWAB.
April 5, 2012
On March 27, the U.S. Environmental Protection Agency (“EPA”) proposed a rule limiting carbon dioxide (“CO2”) emissions from new power plants fired by fossil fuels such as coal or natural gas.
- The rule applies to new fossil fuel-fired electric utility generating units in the continental United States; it does not apply to existing units or new “transitional” units that already have received preconstruction air emission permits and that start construction within 12 months of the proposed rule’s publication in the Federal Register.
- Covered power plants would be required to meet an output-based standard of 1,000 pounds of CO2 per megawatt-hour.
- This standard is expected to favor natural gas over coal. EPA states that “[n]ew natural gas combined cycle power plant units should be able to meet the proposed standard without add-on controls.” By contrast, coal-fired power plants would not be able to meet this standard without carbon capture and storage technology, which is still under development and is expected to be quite costly.
The proposed rules (New Source Performance Standards under Section 111 of the Clean Air Act) result from a settlement between EPA and a group of states and environmental organizations. These plaintiffs sued EPA in opposition to the agency’s refusal, in 2006, to establish greenhouse gas emission standards for new and modified power plants. EPA was required to revisit this decision in the aftermath of the U.S. Supreme Court’s landmark decision in Massachusetts v. EPA, which affirmed EPA’s statutory authority under the Clean Air Act to regulate greenhouse gas emissions.
Under the settlement giving rise to the standards proposed last week, EPA had also agreed to establish CO2 emissions guidelines for existing fossil fuel power plants. EPA has yet to propose such standards, and the time frame for its doing so is uncertain; EPA Administrator Lisa Jackson recently stated, “[w]e don’t have plans to address existing plants.”
The full text of the proposed rule is available here. Public comments are being accepted under Docket ID No. EPA‐HQ‐OAR‐2011‐0660 at www.regulations.gov for 60 days after the proposed rule’s publication in the Federal Register.
March 29, 2012
In Matter of the Town of Waterford v. New York State Department of Environmental Conservation, decided on March 22, 2012, the New York Court of Appeals held that New York State must disclose deliberative documents in its possession that had been created by the United States Environmental Protection Agency (“EPA”). Specifically, the Court held that EPA was not an “agency” subject to the deliberative process exception under New York’s Freedom of Information Law (“FOIL”). That exception had previously been used by the state to deny access to certain federal data in its files that had been received from EPA.
Since 1984, EPA, the New York State Department of Environmental Conservation, (“DEC”) and the New York State Department of Health (“DOH”) have been jointly engaged in a remediation program to address contamination in the Hudson River. EPA has been recognized by law as the lead agency.
The Town of Waterford challenged DEC’s denial of portions of its request for information under FOIL. The Town wished to review alternative water supply analyses for local residents and other deliberative but not final information exchanged between the EPA and state agencies. The information sought included the federal agency’s deliberative analysis of various cleanup options for the project. The DEC denied access to certain records received and exchanged with the EPA by invoking the FOIL exception for inter-agency or intra-agency materials otherwise known as the deliberative process exception.
Ensuing litigation focused on whether documents originally generated by the EPA, a federal agency, were within the statutory exemption for pre-decisional inter-agency or intra-agency materials. The Court held that the statutory definition of “agency” does not include federal agencies, consistent with prior determinations of the New York State Committee on Open Government, which has also interpreted the definition of “agency” under applicable New York law to exclude federal agencies.
This decision is significant because records previously withheld by federal agencies under federal law, but that have been provided to state agencies, may now be subject to release in FOIL requests directed to state agencies. Many environmental enforcement and regulatory matters routinely involve agency interaction and the exchange of information between state and federal agencies. One practical consequence of the ruling going forward may be that federal agencies will be less likely to provide deliberative documents to DEC and other state agencies.
For more information on the Waterford decision, please contact Michael Lesser.
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