June 29, 2010
The New York State Department of Environmental Conservation (“NYSDEC”) announced on June 9 that the comment period for a new cooling water intake technology standard under the Clean Water Act (“CWA”) § 316(b) will be extended through July 9. The draft policy for “best technology available” (“BTA”) for cooling water intake structures is aimed at reducing fish mortality by employing a closed-cycle cooling process. The process purportedly reduces fish mortality and protects fish roe and larvae by significantly reducing the amount of water withdrawn from New York water bodies, but may result in other significant impacts such as air, noise and visual impacts.
The majority of facilities in New York State that use cooling water intakes employ a once-through process whereby water is withdrawn from a waterway, converted to steam used to spin turbines and then later discharged back into the waterway at high temperatures. The draft BTA standards requiring a closed-cycle process have already been used by NYSDEC to support a permit denial for the Indian Point Nuclear Power Plant. Indian Point requested a hearing on matters of law regarding the permit denial and Administrative Law Judge Villa will be presiding over the hearing July 20 with an issues conference schedule for July 21.
All facilities designed to withdraw 20 million or more gallons of water per day and require State Pollution Discharge Elimination System (“SPDES”) permits would be subject to the proposed new BTA standard, with certain exceptions. If an operator can demonstrate that closed-cycle cooling technology can not be physically implemented at a particular location, NYSDEC will require other measures to achieve equivalent reductions in entrainment and impingement. Such measures could include physical barriers, fish return systems, deterrent systems, and possible flow reductions and outages. NYSDEC indicated in the Indian Point decision that cylindrical wedgewire screens would not be sufficient alone to meet this requirement, but wedgewire technology in addition to other modifications could achieve a 90% reduction in entrainment and impingement in lieu of adopting closed-cycle technology.
In determining what technology is feasible for reducing environmental impacts, the Supreme Court held that costs may be considered at the discretion of EPA or EPA’s designee, overturning a Second Circuit decision barring cost-benefit analysis under CWA §316(b). Referencing that Supreme Court decision in its draft policy, NYSDEC defines feasible technology as “not wholly disproportionate to environmental benefits.” The test places the burden on permit applicants who must show that relative costs are unreasonable. In addition, the draft policy states that the only environmental benefits to weigh in a cost-benefit analysis for BTA are reductions in entrainment and impingement.
Comments on the draft policy should be submitted before 5 p.m. on July 9 and sent via mail to: BTA Policy Comments, NYS DEC – Division of Fish, Wildlife and Marine Resources, Bureau of Habitat, 625 Broadway 5th Floor, Albany, NY 12233-4756; or via email through the NYSDEC website.
Maggie Macdonald is a summer associate at Sive, Paget & Riesel, P.C.
In NYSDEC’s notice of denial for the Indian Point Plant, the draft policy is mentioned as requiring closed cycle cooling or its equivalent (90% reduction in entrainment). (Notice of Denial at 19, fn.1.)
 Draft Policy, Appendix A at 11.
 Entergy Corp. v. Riverkeeper, 129 S.Ct. 1498 (2009).
 Draft Policy, Appendix A at 15.
June 28, 2010
On Thursday, June 24, 2010, New York’s highest court approved the Empire State Development Corporation‘s (“ESDC”) use of eminent domain to acquire land in West Harlem that will be used to support Columbia University’s campus expansion. Kaur v. New York State Urban Dev. Corp., No. 125, __ N.Y.3d ___ (2010), consolidated with Tuck-It-Away v. New York State Urban Dev. Corp., No. 125, __ N.Y.3d ___ (2010) (collectively, “Kaur“). In a unanimous decision authored by Judge Cipatrick, the Court of Appeals reversed a ruling of the Appellate Division, First Department that ESDC could not condemn property for Columbia’s expansion project. Relying on its recent decision in Goldstein v. New York State Urban Dev. Corp., 13 N.Y.3d 511 (2009) (“Goldstein“), in which the Court upheld ESDC’s use of eminent domain to acquire land for the Atlantic Yards project in Brooklyn, in the Kaur case the Court of Appeals deferred to ESDC and criticized the Appellate Division for undertaking an improper de novo review of the record.
In December 2008, ESDC determined to use its condemnation power to acquire 17 acres of privately-owned property, including petitioners’, in connection with Columbia’s expansion plan. ESDC found that the project qualified under the Urban Development Corporation Act as both a “land use improvement project” (because the project would eliminate blighted conditions) and as a “civic project” (because the project would provide educational facilities). The $6.28 billion project, which is being exclusively underwritten by Columbia, a private non-profit institution, will comprise 6.6 million gross square feet in 16 new buildings, 2 acres of open space, and other structures. Petitioners contested ESDC’s designation of the project area as “blighted,” and challenged the integrity of the two neighborhood studies commissioned by ESDC that supported its blight finding, arguing that the studies were biased and demonstrated bad faith on the agency’s part. Petitioners also argued that the “civic project” designation was impermissible because Columbia is a private, not a public, entity.
In Thursday’s Kaur decision, the Court of Appeals reaffirmed that the judiciary has a limited role in reviewing the actions of ESDC, a quasi-legislative entity. Citing Goldstein, the Court noted that ESDC was authorized by the state legislature, and that a court “may only substitute its own judgment for that of the legislative body authorizing the project when such judgment is irrational or baseless.” The Court rejected petitioners’ arguments that ESDC acted in bad faith and with pretext, finding no evidence to support such allegations. The Court instead held that ESDC’s determination was made rationally and in good faith, and that the separate neighborhood conditions studies on which ESDC relied were creditable and not biased. The Court then cited blight evidence dating back to the 1960s to reject petitioners’ argument that Columbia created blight by neglecting the project-area properties that it acquired starting in the early 2000s. The Court also held that the UDC Act’s definition of a “substandard or insanitary” (i.e., blighted) area was not unconstitutionally vague.
The Court of Appeals made new law in New York by holding that “civic projects” under the UDC Act are not limited to public institutions, and may in fact include projects proposed by private educational institutions. After noting that the Columbia project “unquestionably  promote[s] education and academic research while providing public benefits to the local community,” the Court rejected the First Department’s determination that the statutory language is limited to public entities. In a concurring opinion, Judge Smith stated that because the Court upheld ESDC’s blight determination, the civic project doctrine need not have been reached, and that it was subject to constitutional constraints that the Court failed to address.
Finally, the Court rejected petitioners’ claims that ESDC violated their procedural due process rights by closing the administrative record and proceeding with the condemnation despite ongoing disputes as to whether ESDC was required to turn over additional documents to petitioners. The Court stated that a violation of the Freedom of Information Law (“FOIL”) only rises to a due process violation where petitioners can demonstrate that they were deprived of a meaningful opportunity to be heard, or demonstrating that materiality of the records sought through FOIL. The Court found that ESDC did not withhold documents that formed part of the administrative record, and that petitioners had unfettered access to thousands of pages of documents, including those at the core of ESDC’s action. Noting that the legislature intended for expedient condemnation proceedings that did not allow for any discovery, the Court held that petitioners failed to meet their burden.
According to the New York Times, petitioners plan to seek review of the decision by the United States Supreme Court.
SPR serves as environmental counsel for the Empire State Development Corporation, and Mark Chertok and Dan Chorost served as co-counsel to ESDC’s eminent domain counsel in the Kaur case. David Paget and Dan Chorost served as co-counsel for ESDC in the Goldstein case. A copy of ESDC’s appellate brief is available here (pdf), and reply brief here (pdf).
June 23, 2010
The New York State Department of Environmental Conservation (DEC) has released a draft memorandum of agreement (MOA) between DEC and the New York City Mayor’s Office of Environmental Remediation (OER), as well as an accompanying addendum, which together provide for the two agencies’ coordinated oversight of brownfield cleanups in the five boroughs.
The MOA would assign to OER the lead role in supervision and remedy selection for certain contaminated or possibly contaminated properties within the city limits. These cleanups would be conducted through the NYC Local Brownfield Cleanup Program, on behalf of DEC and in accordance with DEC’s brownfield cleanup standards. The MOA’s alignment of City and State cleanup programs represents a success for Mayor Bloomberg, who has sought such coordination as part of PlaNYC since the plan’s unveiling in 2007.
A key element of the agreement is a declaration that DEC “does not plan or anticipate” initiating enforcement actions under state or federal Superfund statutes for sites that are remediated through the City cleanup program and pursuant to the MOA.
The MOA also provides that OER may supply technical assistance to DEC for petroleum spills at sites participating in the City cleanup program, that OER must comply with certain community participation requirements, and that OER must report designated information about sites to DEC over the course of city-supervised cleanups.
DEC is accepting public comment on the proposed MOA and its addendum until Friday, July 9. DEC and OER provide additional information on the MOA and their respective brownfield cleanup programs on their websites.
Dan Mach is a summer associate at Sive, Paget & Riesel, P.C.
Draft MOA, Section III.a.
 The Local Brownfield Cleanup Program was created by the New York City Brownfield and Community Revitalization Act, authorized by the City Council and signed by the Mayor on May 11, 2009.
 DEC has statutory authority to delegate its functions to local governmental entities. N.Y. Envtl. Conserv. Law § 3-0301(2)(p). Cleanup standards would be defined under the state brownfields cleanup program regulations, codified at 6 NYCRR §§ 375-1, 375-3.
 PlaNYC Report 46-47 (Apr. 22, 2007).
 Draft MOA, Section IV.a.
June 18, 2010
For the seventh consecutive year, Chambers and Partners, an independent ranking organization, has ranked SPR in the highest category of New York State environmental law firms. The 2010 report highlights the firm’s expertise in project development, environmental enforcement and litigation, and brownfield remediation. Noting the firm’s reputation as a “one of the best environmental boutiques in New York,” the report cites clients’ praise for six SPR partners:
- David Paget, described as “without question one of the preeminent experts on environmental law in the USA,” with special expertise in the Clean Air Act (CAA), Clean Water Act (CWA), National Environmental Policy Act (NEPA), and the National Historic Preservation Act (NHPA);
- Daniel Riesel, commended for his “vast trial experience and presence” in matters involving toxic torts, civil suits, and white-collar criminal cases;
- Mark Chertok, lauded as “the go-to person for any large project that needs a lot of expertise,” with “vast knowledge” of issues involving brownfields, NEPA, CWA, CAA, the New York State Environmental Quality Review Act (SEQRA), and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA);
- Jeffrey Gracer, esteemed for his “outstanding . . . technical ability, communication skills and client relations” in matters including regulatory issues, environmental disputes, waste, brownfield redevelopment, environmental insurance, and international transactions;
- Michael Bogin, described as a “an excellent problem-solver” with expertise in environmental litigation and experience working with municipalities and school districts; and
- Steven Russo; described as a “terrific litigator” with “excellent judgment” and experience with complex Superfund cases, toxic tort claims, oil spill litigation, CWA matters, and issues involving the Resource Conservation and Recovery Act (RCRA).
Read the full report here.
Read more about SPR’s practice areas, and see examples of our work.
June 17, 2010
On June 1, Mayor Bloomberg announced the launch of four measures relating to the City Environmental Quality Review (“CEQR”) process, which requires an assessment of the potential environmental impacts of projects undertaken by the city or subject to its permitting authorities. The new reforms are intended to make CEQR more transparent and user-friendly while improving the quality of review. The four initiatives are:
- Revised Technical Manual: A revised CEQR Technical Manual, the City’s guidance for conducting CEQR analyses, has been prepared. It was released on May 17, 2010.
- New Environmental Assessment Statement (EAS) Short Form: CEQR requires the preparation of an EAS as the first step in an agency’s environmental review of a project. A new short EAS form, featuring a “check-list” format, is intended to simplify reporting for smaller projects.
- Revised EAS Full Form: In a revised full EAS form, the City has aimed to guide the applicant to focus on impacts requiring technical analysis and has clarified the form’s instructions by eliminating unnecessary text.
- CEQR Informational Services: The Mayor’s Office of Environmental Coordination has improved its website, adding among other things a centralized city-wide CEQR calendar and a one-stop CEQR forms page. The site also features a help-line for CEQR-related questions.
The new Technical Manual, which should be used for every environmental review commenced after May 17, 2010, is of critical interest to anyone undertaking a project subject to CEQR. Aside from changes to the organization of the Manual itself, the revisions expand CEQR review to cover some of the city’s most prominent environmental concerns – climate change and the water quality impacts of combined sewer overflow (CSO) events – as well as to promote the goals of Mayor Bloomberg’s citywide environmental sustainability plan, PlaNYC. These additions are coupled with efforts to simplify and focus review in a more streamlined process. These goals are reflected in two sets of changes to the CEQR process.
First, the revised Manual establishes or adjusts certain criteria for “screening analyses” for certain impact categories, by virtue of which projects that fall below certain thresholds may be determined to have no significant adverse impact on the environment without an in-depth technical analysis. These new criteria include numeric screening thresholds for direct residential and business displacement (as relates to socioeconomic impacts), a two-level screening process for transportation impacts, and step-by-step screening methods for public health and shadows impacts. The revisions also increase the threshold number of vehicle miles traveled needed to trigger a mobile air quality analysis. Overall, the new screening analyses are intended to encourage “targeted” reviews and expedite analysis of non-significant impacts.
The second set of revisions seeks to clarify, expand, and improve technical analysis of impacts requiring detailed review. Data on new legal standards have been updated, and factual background has been improved with additions such as open space maps and updated background traffic growth rates. For larger projects, the Manual now includes guidance for greenhouse gas emissions analysis and assessments of wind effects. Large city-sponsored projects will also need to be assessed for consistency with sustainability goals set forth in PlaNYC. The infrastructure analysis was expanded to include sewer system capacity between the project site and discharge point, taking into account possible CSO events. Other changes include updates that reflect minor changes in laws and codify current agency practice.
Dan Mach is a summer associate at Sive, Paget & Riesel, P.C.
June 16, 2010
On June 3rd, EPA announced a final rule that will tighten the National Ambient Air Quality Standards (NAAQS) for sulfur dioxide (SO2) under the Clean Air Act, abandoning the currently applicable 24-hour and annual standards in favor of a 1-hour standard. The NAAQS also establish a new monitoring network for areas where SO2 emissions coincide with high population densities. The new regulations are aimed at preventing short-term exposure to SO2 and are specifically meant to curb the negative health effects associated with SO2 emissions including asthma, emphysema and other respiratory conditions.
EPA is required by statute to revise the NAAQSs for SO2 under Clean Air Act Sections 108 and 109. This revision is the result of a challenge by the American Lung Association to EPA’s 1996 findings that the anticipated health benefits from revising the NAAQS for sulfur oxides to include short-term and peak concentration limits were not compelling. As a result of the American Lung Association’s challenge, the EPA was directed to further explain its position that 5-minute and peak limits were unjustified. The resulting rule relies on the science of respiratory morbidity following short-term exposure to SO2, finding that a limit of 75 ppb 1-hour standard provides the requisite protection of public health. EPA will consider secondary standards, aimed at protecting public welfare (including the environment) in 2012.
The final rule will take effect sixty days after publication in the Federal Register and is available here.
Maggie Macdonald is a summer associate at Sive, Paget & Riesel, P.C.
 American Lung Ass’n v. EPA
, 134 F. 3d 388 (D.C. Cir. 1998).
 61 Fed. Reg. 25,572 at 25,575.
June 14, 2010
On Thursday, June 10th the Senate voted 53-47 against a resolution by Lisa Murkowski (R-Alaska) to disapprove EPA regulation of greenhouse gases (“GHGs”) under the Clean Air Act. Senator Murkwoski invoked a rarely utilized legislative procedure under the Congressional Review Act that would have required a simple majority of 51 votes. President Obama had already promised to veto the Murkowski resolution if it had passed.
Despite the fact that Murkowski garnered the support of six Democrats, many argue that the vote on the EPA disapproval resolution is not indicative of the Senate’s general posture toward enacting comprehensive climate change legislation. It is possible that votes for the Murkowski resolution were expressions against rulemaking by EPA under its existing Clean Air Act authority, and not necessarily an indication of how Senators would vote on comprehensive legislation. It has been reported that another vote on a proposal by Senator Rockefeller to delay EPA regulation of stationary sources for two years has been gaining support and may have been part of a compromise that led to the defeat of Murkowski’s resolution.
The EPA regulations, which will go into effect beginning in 2011 unless they are stalled by Congress or the courts, include a light-duty motor vehicle rule combining fuel economy standards with emissions limits to address the GHG emissions EPA found contribute to global warming in an endangerment finding published last year. Murkowski was also seeking to overturn EPA’s Tailoring Rule, published last week in the Federal Register, which phases-in regulation of GHG emissions from stationary sources and shields many small emitters from implementing best available control technologies when GHGs begin to be regulated.
For more information on emerging climate change law and policy, contact Jeff Gracer.
Maggie Macdonald is a summer associate at Sive, Paget & Riesel, PC.
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