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May 28, 2010

DEC Releases Revised Technical Guidance for Site Investigation & Remediation (DER-10)

On May 3, 2010, the New York State Department of Environmental Conservation (“DEC”) released the long awaited revised DER-10: Technical Guidance for Site Investigation & Remediation.  The document becomes effective June 18.   DER-10 is DEC’s authoritative guidance on how to characterize the nature and extent of contamination at a site and how to design an appropriate work plan to investigate and remediate a contaminated site.

There have been significant changes to the laws governing contaminated site cleanup since DER-10 was first published in draft form in December 2002.  The New York Brownfields Cleanup Program (“BCP”) has come into being, and significant changes have been made to the State Superfund statute and its implementing regulations, 6 NYCRR Part 375.  DEC has revised DER-10 to reflect these changes, conform its guidance to the newer regulatory regime, and address concerns from the regulated community that elements of the 2002 draft version of DER-10 were unmanageable or confusing.

The revised DER-10 makes significant changes to chapters addressing remedy selection, site management, periodic review and closeout.  The first chapter, containing general provisions including definitions, was also significantly revised.  In Section 1.3, DEC added definitions and modified others to conform them to the BCP and the modified State Superfund and Part 375 language.  For example, “engineering control” and “environmental easement” were added and cite to their regulatory definitions.  See 6 N.Y.C.R.R. §§ 375-1.2(q), (p).  Other definitions were deleted because they were never used in practice or were poorly defined.  The revised DER-10 also better defines certain elements that are not included in the regulations.  For example, day care facilities, which are not classified in the regulations, are classified as a restricted residential use in the guidance.

One of the major changes to DER-10 is in Section 1.5, which relaxes certain work plan and report certification requirements.  Under the 2002 draft version, DER-10 provided that only a professional engineer licensed or authorized to practice in New York could certify work plans and reports.  The revised 2010 version disposes with this restrictive language, and now creates a spectrum of persons who may prepare and certify work plans and reports, which includes: New York State licensed professional engineers; qualified environmental professionals; remedial parties; and site owners at the time of certification.  While most plans and reports must still be certified by either a qualified environmental professional or NY licensed engineer, remedial parties and site owners may certify periodic review reports if they relate to land or groundwater use restrictions.  The revised DER-10 also includes specific certification language, consistent with the BCP and Superfund Program that must be included on the title page of all submissions and must be fully executed when a document is submitted to DEC’s Division of Environmental Remediation for approval.

Chapter 4 provides the framework for remedy selection and the means and methods to identify, evaluate and select a remedy or alternative remedies to address the contamination at a site.   The section provides detailed reporting and documentation requirements based on whether the site is in the Superfund program (state or federal), BCP, Environmental Restoration Program, Voluntary Cleanup Program, or petroleum spills program.  It also provides DEC’s Remedial Action Objectives (“RAOs”) and preference hierarchy for removing and containing identifiable sources of contamination – removal and/or treatment at the top; treatment of source at point of exposure at the bottom.  See 4.1(d).

Chapter 6 has been significantly revised; sections 6.1 (Site Management), 6.2 (Site Management Plan), and 6.3 (Periodic Review) were added.  Site management, the last phase of the remedial program, commences once a Certificate of Completion (“COC”) or closure letter is issued.  DER-10 describes necessary activities for proper and effective site management, including inspections by the person responsible for site management and reporting of all results in a periodic review report.  The guidance requires that design, implementation, periodic review, and closeout of site management are described in a Site Management Plan (“SMP”); DEC’s website will provide a template for the SMP.

DEC also decided to rescind some TAGMs (Technical and Administrative Guidance Memoranda) developed in the 1980s and 1990s and incorporate the substance of those TAGMs into DER-10.  For example, fugitive dust will no longer be monitored pursuant to a TAGM; instead, a fugitive dust and particulate monitoring program has been included as Appendix 1B in the revised DER-10.  Consolidating these TAGMs into DER-10 will facilitate access to these materials for the regulated community.

DEC is planning to host a training session in Fall 2010 to answer questions and help the public understand the changes in DER-10.  Notice of the meeting will be posted on DEC’s website, and DEC will solicit questions and comments prior to the meeting.



    May 26, 2010

    LEED-ND Released: LEED System Expands to Include Neighborhood-Scale Developments

    The U.S. Green Building Council (“USGBC”) recently released a certification system for green neighborhood development, known as LEED-ND.[1] LEED-ND expands the well-known LEED system for green buildings to larger-scale projects ranging in size from two buildings to multiple buildings on sites up to 320 acres.  The system incorporates the principles of new urbanism, emphasizing mixed-use planning and walkable neighborhoods, and was developed in concert with the Natural Resources Defense Council and the Congress of the New Urbanism. While LEED-ND is primarily designed for neighborhood-scale projects, it may also apply to campus-style developments, such as university campuses, military bases, resort developments, religious retreat centers or summer camps.

    Some notable features of the LEED-ND system include:

    • Each project must have at least one certified green building;
    • A project’s site must be contiguous property, but may include “conclaves of non-conforming properties” that may be exempt from LEED-ND requirements;
    • Project sponsors should have control over or title to 50% or more of the project land area.

    Projects are evaluated based on a number of prerequisites and credits, earned by incorporating design elements which are grouped by category, including:

    • Smart location and linkage – relates to transportation, location, and land preservation;
    • Neighborhood pattern & design – relates to community character, mix of uses, and walkability;
    • Green infrastructure and buildings – examines building design and construction with regard to energy and water use, and sustainable best practices;
    • Innovation and design process – grants credits for “exemplary and innovative” performance, beyond existing credit structures;
    • Regional priority – allows credits unique to a project’s local environmental priorities.

    The LEED-ND certification process takes place in three stages:

    • Stage 1 – conditional approval of plans, to enable projects to build local support;
    • Stage 2 – pre-certified plans, intended for projects that have received necessary permits or are under construction, and may assist in securing funding or tenants;
    • Stage 3 – to be formally certified projects must have completed construction, and have achieved all prerequisites and credits sought in the first two stages of review, subject to any intervening changes in the LEED-ND system.

    Generally LEED-ND applies to newly-constructed projects, but substantial renovations of 50% or more of existing square footage may allow existing neighborhoods to apply for certification.

    Implementing LEED-ND may raise a series of legal issues, because the rating system operates at a scale that has traditionally been governed by zoning laws and municipal comprehensive plans.  The USGBC warns that LEED-ND should not be used a substitute for comprehensive planning, but project applicants and municipalities should be aware that implementing LEED-ND may itself trigger the need for revisions to a municipal plan or zoning code.  Some of the potential issues that LEED-ND implementation may face include:

    • Project applicants and municipalities need to assess the consistency of existing zoning with LEED-ND requirements.  Qualifying for credits based on mixed-use neighborhood character may be rendered impossible by pre-existing single-use zoning.
    • Municipalities wishing to mandate compliance with LEED-ND may create the unintended consequence of rendering significant portions of land undevelopable.  This could expose a government to potential litigation, including takings claims.
    • Any revisions to zoning codes to enable use of LEED-ND would require environmental review as appropriate, and should be assessed for consistency with the applicable comprehensive plan for consistency.  See, e.g., NY Town Law § 272-a(c)(11) (requiring that “[a]ll town land use regulations must be in accordance  with  a  comprehensive  plan adopted pursuant to this section”).
    • Site-specific rezonings to enable LEED-ND—even on large parcels—may face litigation risk in the form of spot-zoning claims.
    • Large-scale projects face a risk of the LEED-ND system itself changing over time.  Applicants to the USGBC should carefully note that projects are not grandfathered to LEED-ND as it existed at the time of its original application.  Rather, at each new stage of review a project may be required to comply with intervening changes in LEED-ND credits and prerequisites.

    One recent example of municipal incorporation of LEED-ND in the planning process is the Willets Point Development Plan (the “Willets Point Plan”) proposed in northern Queens, New York,  where SPR is representing the City of New York and its Economic Development Corporation (“EDC”).  According to Final Generic Environmental Impact Statement published for the project, the Willets Point Plan envisions redevelopment of a current industrial area into a mixed-use neighborhood through an Urban Renewal Plan and a rezoning tailored to the Plan’s goals.  The EDC, which is sponsoring the project through acquisition of the land within the proposed development district and issuance of a Request for Proposals to potential developers, has developed an illustrative site plan designed to comply with current LEED-ND requirements, and intends to require the chosen development to achieve LEED-ND certification.


    [1] LEED stands for Leadership for Energy and Environmental Design.



    May 14, 2010

    Kerry and Lieberman Release Draft Climate and Energy Bill

    By: Bridget M. Lee — Filed under: Climate Change Law, Emerging Issues — Posted at 6:06 pm

    On May 12, 2010, Senators John Kerry (D-MA) and Joe Lieberman (I-CT) unveiled their long-anticipated draft of the American Power Act.  The almost 1,000 page draft bill has yet to be formally introduced in the Senate.  While sharing many of the same goals as the American Clean Energy and Security Act, enacted by the House of Representatives in June 2009, the Kerry-Lieberman bill represents, in some ways, a less environmentally ambitious proposal—undoubtedly a reflection of the necessity of attracting 60 votes.  At the same time, it includes significantly greater incentives for the development of nuclear power and offshore oil.  If enacted, provisions of the American Power Act would take effect in 2013.

    At its heart, the bill would establish a mandatory global warming pollution reduction program designed to reduce total annual greenhouse gas emissions for selected sectors of the economy (a more limited selection of sectors than covered by the House bill) to 17 percent below 2005 levels by 2020 and 83 percent below 2005 levels by 2050.  The reductions will be achieved by the distribution and/or auction of a fixed number of emissions allowances, which allowances can then be traded in a heavily regulated market and for which a hard price collar would be set.  The proposed cap-and-trade program is designed to prevent speculation by limiting potential buyers of allowances to those entities with compliance obligations and those registered to participate in the carbon market.  The House bill did not limit market participants.

    In an effort to protect consumers in the event of energy price increases, the Kerry-Lieberman bill proposes to refund 75 percent of allowance sale proceeds, while the House bill provides for a refund of only 45 percent of such proceeds.  The bill also seeks to protect domestic industry (and jobs) from “carbon leakage” by establishing a border adjustment mechanism by which imports from countries without emissions reductions will be subject to a fee.

    In apparent recognition of the need to garner industry support, the bill includes provisions that would limit the ability of the EPA to employ existing provisions of the Clean Air Act to impose additional regulatory obligations on greenhouse gas emissions from facilities that are subject to the bill’s emissions reduction program.  While states retain the authority to set vehicle standards and take certain other actions relating to the regulation of greenhouse gases, the proposed legislation would preempt state authority to impose cap-and-trade programs once the federal program was in place.  Although portions of the bill were reworked following the disaster in the Gulf of Mexico, the bill incentivizes offshore drilling in previously protected areas by offering revenue sharing to coastal states (subject to state vetoes under certain circumstances).  It also contains substantial incentives for nuclear power development and carbon capture and sequestration.

    It remains to be seen whether the Obama administration will lend substantial support to this effort, and even if it does, it will be difficult to secure the required 60 votes for passage.  The need for certainty by industry and EPA’s spate of regulations addressing greenhouse gas emissions from mobile and stationary sources may create a coalition of the willing for action by Congress.

    To read more about the draft bill, see the following links:



    May 13, 2010

    Kagan’s Environmental Record Scant, but Administrative Law Views Could Limit Deference to Environmental Regulators

    By: Ashley S. Miller — Filed under: Administrative Law, Emerging Issues, Enforcement, Supreme Court — Posted at 1:29 pm

    Since President Obama announced his intention to nominate Elena Kagan for the U.S. Supreme Court much attention and speculation has centered around Kagan’s opinions on various issues, including her environmental record.  Some have observed that we know “nothing” about her environmental preferences except a preference for executive power, and a notable role in creating the environmental law clinic at Harvard Law School.  The clinic, a greening initiative at the school, and the hiring of professor Jody Freeman, a leading environmental law scholar, suggest that Kagan supports environmental protection and climate regulation as a general matter.  But it is not quite accurate to say that Kagan, as has been suggested, “hasn’t written or said much at all about climate change or the government’s role in regulating clean air and water or protecting land and species,” because her writing on administrative law provides some clues as to how she would approach EPA’s actions.

    In fact, Kagan has publicly taken a significant position on administrative law that, if implemented, could have important practical implications for environmental regulation.

    In a lengthy and nuanced 2001 law review article co-authored with David J. Barron,[1] the authors argue for a new rule of law defining when courts should defer to decisions made by administrative agencies.  Because much of environmental law is implemented through administrative agencies, Kagan’s view, if adopted by courts, could have far reaching implications.

    Kagan’s argument seeks to limit the application of a powerful doctrine of federal administrative law known as “Chevron deference”[2] to only those administrative decisions where the specific decisionmaker appointed by Congress actually makes the decision – and not to the determinations of lower-level decisionmakers in the agency acting pursuant to delegated authority.  Chevron is considered a rule of judicial restraint, whereby courts will not second-guess an agency’s reasonable interpretation of ambiguities in a statute it is charged with enforcing, absent convincing circumstances.  Notably, it was Justice Stevens, who Kagan would replace on the bench, who authored the opinion in the Chevron case, which is the most cited in Supreme Court history.

    The approach suggested in Kagan’s article would mean that generally only the head of an administrative agency, such as the administrator of EPA, would receive Chevron deference in court for their decisions.[3] Often in current practice Congress will direct an agency administrator to make a decision, and this official will in turn delegate authority to lower officials.  Decisions made pursuant to delegated authority within the agency would not receive Chevron deference under Kagan’s proposed rule. Kagan’s approach builds on prior caselaw, including United States vMead Corp., 533 U.S. 218 (2001), but her primary focus on the identity of the decisionmaker is a significant departure from, and extension of, these prior cases.[4]

    This change, if ultimately adopted by the Supreme Court, would be significant, because, as Kagan points out, “the vast majority of agency action [other than formal rulemaking, etc.] is issued under the name of these [lower-level] officials.”[5] Under Kagan’s approach, all of these decisions would be subject to potential second-guessing in court, under a less-deferential standard known as Skidmore deference.[6]

    The possible effects of Kagan’s approach could be to:

    • Strengthen the presumption that a head administrator’s decision, based on legitimate exercises of their authority, is sound;[7]
    • Weaken the authority of lower agency officials, holding them to a higher standard; and
    • Increase the administrative workload for higher-level decisionmakers in an agency.

    Limiting the application of the Chevron deference doctrine could weaken the authority of most agency administrative personnel.  Lower-level decisionmakers could not, under Kagan’s rule, seek to defend their decisions by arguing they are entitled to the special deference given to statutory interpretation, without prior action from a higher-level decisionmaker.  This rule would also likely have the beneficial effect of reducing the potential for ad-hoc decisionmaking at lower levels within an agency, when clear interpretations have not been provided from higher officials.

    However, if Kagan’s approach were adopted by the Supreme Court, agencies may respond by making all important statutory interpretation decisions through its administrator.  Thus, a new regulatory dynamic could emerge whereby an agency, in an effort to secure judicial deference for its top priorities, routes these decisions through their primary decisionmaker for substantive review and adoption.[8]

    While much has been said about the lack of a paper trail to discern the type of justice that Kagan would be, she plainly has taken a clear and firm position on a seminal administrative law principle, and suggests a potential to reexamine doctrines of judicial deference to regulation, including environmental regulation.  Of course, her article was written from the perspective of a law professor, not a judge, so Kagan’s overall approach to respecting Supreme Court precedent would also play a prominent role in deciding whether she would press her suggested approach once she ascends to the bench.


    [1] David J. Barron and Elena Kagan, Chevron’s Nondelegation Doctrine, The Supreme Court Review, Vol. 2001, at 201-265 (2001) (“Barron & Kagan”).

    [2] Named after the Supreme Court case of Chevron U.S.A. vNRDC, 467 U.S. 837 (1984) (“Chevron“).

    [3] Congress could name another agency official, but in practice generally agency heads, or the President, are named by statute as the relevant decisionmaker.

    [4] According to Kagan, the court in Mead looked to how “general” and “formal” an administrative decision is to evaluate whether Chevron may apply.  Barron & Kagan at 234.  Kagan argues that “accountable and disciplined policymaking” may be better promoted by focusing on who makes the decision—i.e., the statutory delegee named by Congress—as opposed to how it is made.  Id. at 204, 238.

    [5] Barron & Kagan at 237.

    [6] Barron & Kagan at 236.

    [7] Barron & Kagan at 263 (“[a]n agency should not have to conform its decision making to some idealized notion of either general lawmaking or courtlike formality to receive deference”).

    [8] Barron & Kagan at 262.



    EPA Proposes to Regulate Coal Ash

    By: Jessica Albin — Filed under: CERCLA/Superfund, Emerging Issues, Enforcement, RCRA, Solid Waste — Posted at 10:25 am

    On May 4, 2010, following significant revisions (reportedly at the behest of the Office of Management and Budget), the Environmental Protection Agency (“EPA”)  released proposed regulations governing management of coal combustion residuals generated by coal fired power plants, commonly known as coal ash (the “Proposed Rule”).  In Fall 2009, EPA indicated it would release the Proposed Rule by the end of 2009.

    EPA has proposed two options for managing coal ash.

    The first option would regulate coal ash as special waste under the Resource Conservation and Recovery Act’s (“RCRA”) hazardous waste provisions.  Under this option, a comprehensive program of federally enforceable requirements for management and disposal of coal ash would be created.  Measures would be adopted to phase out the wet handling of coal ash.  Additionally, states would be authorized to develop a permit program or use the federally-established program.  This option would include storage, manifest, transport, and disposal requirements for coal ash as well as mechanisms for corrective action and financial responsibility.  Failure to comply would be subject to direct federal enforcement.

    The second option would regulate disposal of coal ash under RCRA’s non-hazardous waste provisions.  EPA would set performance standards for waste management facilities that handle coal ash.  States that adopt their own coal ash management programs would be responsible for enforcing the rule and would have the option to establish a permit program.  Surface impoundments built after the rule goes into effect would be required to have composite liners, but there will be no land disposal restrictions.  Although citizen suits could be filed for failure to comply with the rule, this option does not provide for direct federal enforcement.  This option also does not provide for any financial assurances, but EPA plans to develop a proposed regulation pursuant to the financial assurance requirements in Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) § 108(b) that would cover coal ash facilities.  This option would go into effect earlier than the first option.

    Under both options, landfills that accept coal ash will be required to conduct groundwater monitoring, even if they were built before the Proposed Rule is finalized.  Landfills built after the rule goes into effect would also have to install liners.  The Proposed Rule does not address depositing coal ash as backfill in mines, known as minefills.  Nor does it affect the current status of coal ash that is beneficially reused.  The Bevill exemption, which lists specific wastes that are exempt from regulation under RCRA, includes the beneficial reuse of coal ash (e.g., fly ash in cement and concrete).  However, EPA is soliciting comments regarding the uses of coal ash in unencapsulated form, such as in road fill and agricultural applications.  EPA is also soliciting comments on how to define “beneficial use.”  Based on the comments submitted, EPA could determine that unencapsulated uses should be regulated or could redefine which “beneficial uses” remain exempt.

    Once the proposed rule is published in the Federal Register, the public will have 90 days to submit comments.

    For more information about the Proposed Rule and how to submit comments visit EPA’s website.



    May 12, 2010

    Dan Riesel to Chair ALI-ABA Environmental Litigation Course in Boulder, CO June 16-18

    By: Ashley S. Miller — Filed under: Announcements — Posted at 5:42 pm

    SPR partner Dan Riesel will be chairing and lecturing at the 35th Annual American Law Institute-American Bar Association (“ALI-ABA”) Environmental Litigation course in Boulder, Colorado June 16-18th, 2010.  Our partner Mark Chertok will also be lecturing at Boulder. This is an essential course for all that litigate environmental matters.

    The course thoroughly covers the new enforcement initiatives, evidentiary and discovery problems, and trial skills, as well as the “hot topics” such as global warming litigation.  This three-day course is unique in that it integrates extensive written materials with lectures and simulations of environmental hearings and trials.

    If you are unable to attend in person, this CLE is available 8 ways: on-site, live webcast, group webcasts, online CLE, DVD, audio MP3, CD-ROM, and through course materials. For more detailed information please visit ALI-ABA’s website or download the brochure here (pdf).



    May 11, 2010

    EPA Conditionally Approves New York’s Plan to Come into Compliance with the Clean Air Act

    On May 4, 2010, the Environmental Protection Agency (“EPA”) proposed to conditionally approve New York State’s revised State Implementation Plan (“SIP”), a program mandated by the federal Clean Air Act for achieving the air quality standards required by the Act.  The New York Metropolitan Area, which includes New York City as well as Nassau, Suffolk, Rockland, and Westchester Counties, is presently identified by EPA as not in attainment of federal ozone standards.  Consequently, New York State is required to limit the emissions of ozone precursors (i.e., volatile organic compounds and oxides of nitrogen) through the adoption of Reasonably Available Control Technology (“RACT”), applicable to stationary sources, and Reasonably Available Control Measures (“RACM”), applicable to all sources.

    In August of 2009, EPA had proposed to disapprove portions of New York’s prior efforts to revise its RACT and RACM analyses for ozone.  EPA had based its proposed disapproval on New York’s failure to adopt six emission control measures which it had committed to adopt.  In a letter dated March 30, 2010, EPA noted that the New York State Department of Environmental Conservation (“NYSDEC”) had made little progress on its overdue regulations.  EPA offered to refrain from finalizing its disapproval (which would trigger sanctions) in exchange for a final commitment that the overdue regulations be adopted by August 31, 2010.  New York’s commitment would give rise to a conditional approval, which would become final if the State met its August 31 deadline.  New York accepted the offer, resulting in EPA’s proposed conditional approval.  The agreement requires NYSDEC to adopt the following new regulations to control the emission of ozone precursors:

    • 6 N.Y.C.R.R. Part 212.10: Asphalt Paving Production
    • 6 N.Y.C.R.R. Part 220: Portland Cement Plants and Glass Manufacturing
    • 6 N.Y.C.R.R. Subpart 227-2: ICI Boiler RACT/HEDD
    • 6 N.Y.C.R.R. Part 228: Adhesives and Sealants
    • 6 N.Y.C.R.R. Part 234: Graphic Arts
    • 6 N.Y.C.R.R. Part 241: Asphalt Paving.

    NYSDEC has published its proposed Part 241 regulation, pertaining to asphalt paving, on its website.  A more general discussion of the likely contours of the six necessary regulations is also available on the NYSDEC website.    

    To view the correspondence between NYSDEC and EPA which gave rise to EPA’s conditional approval, click here and here.  You will be directed to a site on regulations.gov; click on the pdf icon to view the correspondence.



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