November 24, 2009
The New York City Climate Change Adaptation Task Force will present key findings of its forthcoming report on climate change adaptation on December 2 in a joint presentation with the New York Academy of Sciences. The Task Force, launched in August 2008, seeks to secure the City’s critical infrastructure against sea level rise, higher temperatures and fluctuating water supplies projected to result from climate change, and is guided by the New York City Panel on Climate Change (NPCC). The report will contain a detailed plan outlining the need for early and ongoing adaptation action in the City.
The Task Force was one of the 127 initiatives proposed in PlaNYC, the City’s long-term sustainability plan, and is made up of City and State agencies, authorities, and private companies that operate, maintain, or control critical infrastructure in New York City. SPR Partner Pamela Esterman was a member of the team that assisted in drafting the legal portion of the adaptation plan for the NPCC. Next steps after the release of the plan are for the City to begin preparing for and implementing specific adaptation investments.
The December 2 event will include a full day briefing session highlighting the findings of the NPCC’s climate change adaptation plan, and is co-sponsored by the New York Academy of Sciences, Columbia’s Earth Institute, and CUNY’s Institute for Sustainable Cities. More information is available at NYAS.org (pdf).
November 19, 2009
Six SPR partners have been honored as top environmental attorneys in the New York Metro area by Super Lawyers Magazine for 2009. Super Lawyers is a listing of “outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.”
Michael Bogin, Mark Chertok, and Jeffrey Gracer were named as among the best lawyers in the environmental field, and David Paget, Daniel Riesel, and Steven Russo were honored in the environmental litigation field.
Super Lawyers creates an annual list of outstanding attorneys after conducting a “rigorous and multiphase process” that includes polling, peer nominations, and independent evaluations. Based on professional activity, transactions, and honors, Super Lawyers has recognized the above six SPR partners as exceptional attorneys in the environmental and environmental litigation fields.
November 17, 2009
Yale Environment 360 features a piece on why New York City is greener than Vermont, which was recently ranked as the greenest place in the U.S. by Forbes magazine. David Owen, writer for the New Yorker, argues that Forbes got it wrong, and that New York City is in fact a greener location.
Owen writes that the efficiencies created by population density make New York the most ecologically-friendly place to live. Of course, many New Yorkers do not own or drive cars, relying instead on public transit. He argues that smaller living quarters discourage consumption of consumer goods. Dense urban living also reduces potential impacts on land; if the city’s residents were spread out at the population density of Vermont, they would occupy all the land in New England plus four mid-Atlantic states.
November 13, 2009
On November 16, 2009, SPR partner Pamela Esterman will receive the Founders Award from the Theodore W. Kheel Center on the Resolution of Environmental Interest Disputes. The Kheel Center was launched in April 2008 to train lawyers in environmental dispute resolution, and is housed at Pace Law School in White Plains, New York. The mission of the center is to promote the use of non-traditional forums to resolve environmental disputes. Pam Esterman is Co-Chair of the Advisory Committee for the Kheel Center. She has been instrumental in organizing events and training programs for the Center since its creation. She will receive the award in honor of her dedication and service to the mission of the Kheel Center.
In addition, on November 17, the Kheel Center will hold its second annual day-long Summit, at the University Club in New York City. The program, entitled “Changing Times: Changing Practice, Effective Legal Strategies to Resolve New Environmental Disputes” is intended to highlight new conflict resolution strategies that can be used in place of litigation or other adjudicatory tribunals for the resolution of environmental disputes. Several examples of the types of new approaches will be presented. These include approaches that have been used in siting energy generation facilities, as well as those that have been used to address complex land use problems associated with sea level rise. Pam Esterman will moderate a panel entitled: “Negotiating and Selecting Sustainability Practices to Mitigate Climate Change.” She also co-authored an article on the skills lawyers need to advise clients in environmental disputes which will be included in the 2009-2010 edition of the Pace Environmental Law Review.
November 12, 2009
The New York State Department of Environmental Conservation (“DEC”) has proposed four new remediation guidance and policy documents pertaining to the Brownfield Cleanup Program (“BCP”): DER-32 – Brownfield Site Cleanup Agreements; DER-10 – Technical Guidance for Site Investigation and Remediation; Commissioner Policy on Soil Cleanup Guidance; and DER-30 – Real Property Eligibility Opinions for the Brownfield Cleanup Program.
DER-32 sets forth general terms and conditions for the preparation and execution of Brownfield Site Cleanup Agreements (“BCAs”) under the BCP. The policy includes a model BCA and creates a new requirement for BCP applications, requiring applicants to include a statement acknowledging and agreeing to the general terms and conditions of DER-32.
DER-10, a 226-page document, provides technical guidance for DEC and regulated entities on how to conduct acceptable investigation and remediation for sites in the BCP, the State Superfund Program, the Environmental Restoration Program and Voluntary Cleanup Program, and for certain petroleum releases. The policy provides detailed guidance on sampling and analysis requirements, reporting requirements, site characterization, remedial investigation, remedy selection, remedial design, remedial action work plan implementation, and site management.
The Commissioner Policy on Soil Cleanup Guidance provides a uniform framework by which to select soil cleanup levels appropriate for DEC’s remedial programs. Under this policy, which will guide both DEC staff and remedial parties, the level of soil cleanup for a site will depend on the regulatory program under which the site is being addressed and the potential impact on ecological resources, groundwater, surface water, sediment and soil vapor. The selected soil cleanup level must by fully protective of public health and the environment and prevent off-site migration.
DER-30 outlines procedures and circumstances under which DEC will, upon request, issue opinions of eligibility for participation in the BCP for real property within a Brownfield Opportunity Area (“BOA”) study area or designated BOA. DEC anticipates that the issuance of an early opinion of whether a particular parcel satisfies the statutory definition of a “brownfield site,” while non-binding, will facilitate the marketing, reuse and redevelopment of such property.
DEC is accepting written comments on the proposed Commissioner Policy, DER-30 and DER-32 until December 4, 2009; written comments on proposed DER-10 will be accepted until January 4, 2010.
November 10, 2009
Last week, Congress passed legislation that “formally urges the U.S. Environmental Protection Agency to conduct a new study on the risks that hydraulic fracturing poses to drinking water supplies.” The statement, which is found in the 2010 Department of Interior, Environment, and Related Agencies Appropriations Act, calls for a “transparent, peer-reviewed process that will ensure the validity and accuracy of the data.” An earlier EPA study, conducted in 2004, found no risk, but has faced criticism. Current EPA administrator Lisa Jackson has acknowledged that a new study is needed.
Earlier this year, the Fracturing Responsibility and Awareness of Chemicals Act of 2009 (“FRAC Act”) was introduced in both houses of Congress. Currently, hydraulic fracturing is exempted from regulation under the Safe Drinking Water Act (“SDWA”). The FRAC Act, if enacted, would repeal the exemption, thus subjecting hydraulic fracturing to the SDWA’s regulatory scheme and requiring drillers to disclosure the chemical ingredients of fracturing fluid.
Hydraulic fracturing, a process used to extract natural gas from shale, involves the use of high-pressure fluid to fracture underground rock. The exact components of the fracturing fluid are unknown to the public, as drilling companies have maintained that the ingredients are proprietary. Nationwide, concerns have been raised about potential contamination of underground and surface drinking water by the agents and byproducts of hydraulic fracturing.
Last week’s legislation is of particular interest to New Yorkers because a gas shale formation underlies a significant part of the Catskill watershed which provides much of the City’s drinking water supply. New York’s Department of Environmental Conservation has recently released a draft Supplemental Generic Environmental Impact Statement (“DSGEIS”) on drilling in this shale formation. The comment period for the DSGEIS closes on November 30, 2009.
November 3, 2009
EPA’s Final Rule on the Mandatory Reporting of Greenhouse Gases was published in the Federal Register on October 30, 2009. (74 Fed. Reg. 56260.) The rule, which becomes effective on December 29, 2009, requires certain covered facilities to report annual emissions of greenhouse gases (“GHGs”). Such facilities will need to commence collecting data on GHG emissions on January 1, 2010 and submit reports for 2010 emissions by March 31, 2011. (Id. at 56267.)
Facilities that do not contain any specifically listed source category (e.g., petrochemical production, glass production, pulp and paper manufacturing) must report their annual GHG emissions only if the aggregate maximum rated heat input capacity of the stationary fuel combustion units at the facility is 30 mmBtu/hr or greater and the facility emits 25,000 metric tons or more of GHGs per year. (Id. at 56285.) Thus, if a facility’s combined rated heat input capacity is below 30 mmBtu/hr, it is not covered by the reporting rule. (Id.) However, if the facility exceeds this threshold then it must calculate its annual GHG emissions to determine whether it exceeds the 25,000 tons per year reporting requirement. (Id.)
Although certain large commercial buildings could be subject to the reporting requirements based on their fuel consumption units, the preamble to the final rule specifically clarifies that “[t]he proposed rule did not require reporting of electricity purchases and neither does the final rule.” (Id. at 56288.) Similarly, EPA has explained that facilities are not required to report indirect emissions from electricity consumption. (Id.)
Please contact us if you would like further information on whether your facility might be subject to the new reporting requirements.