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November 24, 2010

New York Sea Level Rise Task Force Proposes Potential SEQRA Reforms

Earlier this month, the New York State Sea Level Rise Task Force (“Task Force”) released a draft report assessing the climate-related threat to coastal communities and recommending a series of policy changes (“Draft Report”).  The state legislature commissioned the Task Force in 2007, bringing together state agency representatives, county and local government officials, and other public and private stakeholders to “protect[] New York’s remaining coastal ecosystems and natural habitats, and increas[e] coastal community resilience in the face of sea level rise.”  The Draft Report is open for public comment until Dec. 12, 2010, and is scheduled to be finalized by Jan. 1, 2011.

The Draft Report contains nine findings concerning the projected impacts of sea level rise and 14 policy recommendations for state legislators and executive agencies to prepare for and protect against those risks.  This post focuses on the recommendations related to the State Environmental Quality Review Act (“SEQRA”), the New York law requiring state and local governments to consider the potential significant adverse environmental impacts of their actions.

The SEQRA recommendations primarily relate to actions undertaken within newly-proposed “coastal risk management zones,” which would require an amendment to SEQRA or its implementing regulations.  The Task Force suggests that such zones should be established and include those areas that FEMA has already identified as “coastal high hazard areas” or “areas of moderate wave action” on Flood Insurance Rate Maps (Draft Report, at 54).

SEQRA regulations currently categorize actions as Type I (those that presumptively have significant adverse impacts and are more likely to require preparation of a full Environmental Impact Statement), Type II (those determined not to have significant adverse impact or otherwise precluded from SEQRA review) and Unlisted.  Under one proposal, the Task Force recommends that all Unlisted Actions undertaken within a coastal risk management zone be added to the Type I list (Draft Report at 61).  Alternatively, the Draft Report suggests amending the criteria for environmental significance in the SEQRA regulations to expressly incorporate sea-level rise related impacts (Draft Report at 61; 6 NYCRR 617.7(c)).

Neither of these recommendations, however, addresses the technical issues of how the environmental significance of sea level rise on a proposed project should be measured.  Moreover, the classification of all actions occurring within a coastal risk management zone as Type 1 may be inconsistent with existing SEQRA guidance which anticipates that the significance of sea level rise and other global warming impacts on a project would be assessed “on a case-by-case basis” — with no bright line test imposed based on project location.[1] This recommendation could also sweep in minor discretionary actions, such as wetland permits for single lots, that are not the type or scale of government action typically considered Type I.

Finally, the Task Force makes a commonsense recommendation that DEC’s short and long Environmental Assessment Forms (“EAF”) – used to determine the potential significance of an action’s environmental impacts – be revised to “require[e] an evaluation of risks to and from the project based on the risk of sea level rise and coastal hazards … and other related effects of sea level rise” (Draft Report at 61).  The long EAF currently asks, “Is [the proposed] project or any portion of project located in a 100 year flood plain,” though sea level rise is projected to expand the areas of New York traditionally considered at risk of serious flooding.

For additional information on the consideration of climate-related impacts under SEQRA or the National Environmental Policy Act (“NEPA”), contact Steven Russo.

[1] DEC, Assessing Energy Use and Greenhouse Gas Emissions in Environmental Impact Statements, July 15, 2009, at 4, 5.


November 19, 2010

ExxonMobil and New York State Settle Lawsuit Concerning Massive Oil Spill in Greenpoint, Brooklyn

On November 17, 2010, New York State and ExxonMobil entered into a settlement agreement to resolve a lawsuit concerning ExxonMobil’s liability for cleanup, remediation, and other costs associated with a massive oil spill in Greenpoint, Brooklyn.  Under the terms of the consent decree, which was filed in the U.S. District Court for the Eastern District of New York, ExxonMobil has agreed to pay a total of $25 million to the State and to expand its existing cleanup obligations in the area.

The subject site, which is adjacent to the Newtown Creek Superfund site, has been home to heavy industry since the mid-1860’s and has a long history of contamination.  According to the New York State Department of Environmental Conservation, (“DEC”) approximately 17 million gallons of petroleum products have been released, over time, to the subsurface of the northeastern area of Greenpoint, resulting in a spill area that extends over 52 acres.  The spill was discovered in 1978, and product recovery systems have been in place since 1979.  Currently, cleanup operations are being conducted by ExxonMobil, BP, and Texaco under DEC supervision.

The State has long played a role in seeking to spur efforts to clean up the spill.  In 1990, ExxonMobil’s predecessor, Mobil, and the New York State Department of Environmental Conservation (“DEC”) entered into two consent orders whereby Mobil agreed to investigate and remediate petroleum-related “free product” – contaminated petroleum material that floats on top of groundwater – associated with a former Mobil refinery.  In 2007, the State filed in Federal court the action which has now been settled, alleging that ExxonMobil was liable for response, remediation, and other costs incurred by the State in connection with the entire spill.  These claims were brought pursuant to the Resource Conservation and Recovery Act (“RCRA”), the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA), the Oil Pollution Act, the New York State Navigation Law, the New York State Environmental Conservation Law, and the New York common law of public nuisance, indemnification, and restitution.

Key features of the consent order include the following:

  • ExxonMobil is presumptively responsible for the investigation and remediation of “contamination in all media” at the Site, delineated by an attached map, within ExxonMobil’s “Historic Footprint” (the portion of the Site formerly or currently owned or operated by ExxonMobil or its predecessors).  The obligation extends not only to free product, but also to contaminated groundwater, soil, and soil vapors.
  • ExxonMobil is presumptively responsible for the investigation of contamination within the Site where DEC has a technically reasonable basis to conclude that existing contamination emanated from the Historical Footprint and followed a preferential pathway such as a utility or pipeline.
  • In portions of the Site outside of the Historical Footprint, ExxonMobil is presumptively responsible for the investigation and remediation of petroleum-related groundwater contamination, petroleum-related soil vapor contamination, and petroleum-related contamination in media located in an area specified as the “Retention Zone.”  ExxonMobil’s obligation to investigate and remediate soil contamination is limited to the historic extent of the mapped free product plume.
  • To ensure an expeditious cleanup, ExxonMobil must adhere to a schedule and meet specific milestones in its operations.
  • ExxonMobil must pay a total of $25 million to the State, to be allocated as follows:
    • $19.5 million to fund Environmental Benefit Projects to improve the environment in Greenpoint.  Projects should address issues that include, but are not limited to, water quality, groundwater, open space, reduction of toxic pollution, and air quality.
    • $1.5 million to compensate the State for past cleanup costs related to the spill.
    • $3.5 million to fund future oversight costs.
    • $250,000 in penalties to be deposited in New York’s Oil Spill Cleanup Fund and Marine Resources Account.
    • $250,000 in damages, which will be used to fund projects to compensate for damaged natural resources in Greenpoint.

The consent order is also notable for the items it does not address or require, including the following:

  • The consent order does not address ExxonMobil’s obligations with respect to Newtown Creek, which is now listed as a federal Superfund site. The State reserves all of its rights with respect to Newtown Creek in the consent order.
  • The consent order limits to some extent ExxonMobil’s responsibility for the investigation and remediation of those contaminated properties at the Site identified as the “BP Property”, the “Peerless Property”, the “100-120 Apollo St. Property” and the “Metro Property.”

For more information, visit the following links:

In Response to EPA Subpoena, Halliburton Releases Website About Chemicals Used in its Hydraulic Fracturing Processes

On November 9, the U.S. Environmental Protection Agency (“EPA”) subpoenaed Halliburton for its failure to answer the agency’s request for information regarding the chemical contents of its hydraulic fracturing processes, and potential human health and environmental impacts of hydraulic fracturing.

In conjunction with public meetings held from July to September, EPA issued information requests in September to nine hydraulic fracturing service providers for information regarding their hydraulic fracturing processes.  Except for Halliburton, every company timely complied with EPA’s information request or agreed to submit the information by December.

As a result of Halliburton’s failure to respond, and because EPA’s plan is to have initial results by the end of 2012, EPA subpoenaed Halliburton to submit information by December 1, 2010 regarding the hydraulic fracturing fluid it uses; data and studies in the company’s possession regarding: impacts of its hydraulic fracturing products on human health and the environment; process of hydraulic fracturing operations for natural gas extraction; and sites that use its fracturing fluid.

On November 15, less than one week after being issued the subpoena, Halliburton announced that it will publicly disclose information about the chemicals used in its fracturing fluids on a portion of its website it is calling a “microsite.”  The company stated as follows:

Halliburton has just made available new web pages to emphasize our forthright disclosure of the additives and constituents that are used for several typical wells in Pennsylvania. We believe this effort represents an important and substantive contribution to the broader long-term imperative of transparency.

While the initial focus of the additive disclosure pages is limited to activities taking place in Pennsylvania, where development of the Marcellus Shale is already well-underway, the Company is committed to continuing to provide hydraulic fracturing fluid disclosure information for every U.S. state in which Halliburton’s fracture stimulation services are in use.

The New York Times has reported the new website shows that many of the fracturing chemicals are benign, such as the food additive guar gum, which is used in as a thickener in ice cream.  However,  several hazardous chemicals, such as microbiocide agents, are also listed.    Some environmental groups, such as the Natural Resource Defense Council, believe that the website is insufficient because it does not fully disclose information on a site-by-site basis.  Id. As of the date of this post, the website only included information on water and foam fracturing formulations in Pennsylvania and foam fracturing formulations in the Northeast.  The site does not include most of the information required by EPA’s subpoena.

November 12, 2010

EPA Issues New GHG Permitting Guidance

In anticipation of new greenhouse gas (“GHG”) restrictions set to take effect on January 2, 2011, the Environmental Protection Agency (“EPA”) released guidance on the GHG permitting determinations for new and modified power plants, industrial facilities, and other stationary sources.

The guidance is directed at regulated entities and state agencies, which have been delegated authority to implement the permitting provisions of the Clean Air Act.  Next year, New York and most other states will begin to phase in GHG regulations for certain new and modified stationary sources.  The EPA plans to take over GHG permitting in those states that refuse to adopt the GHG rules or are not prepared to do so.

A “tailoring” regulation finalized by EPA last June raised the emissions threshold for the new GHG limits.  From January 2 through June 30, 2011, the regulations only cover stationary sources whose construction or modification would increase annual GHG emissions by at least 75,000 tons of carbon-dioxide equivalent and would also trigger the Clean Air Act’s Prevention of Significant Deterioration provisions for other pollutants.  Starting in July, construction or modification that increases annual GHG emissions by at least 100,000 tons of carbon-dioxide equivalent could also trigger GHG control requirements.

EPA’s new guidance adopts a flexible interpretation of the “best available control technology” requirements for GHGs.  While supporting the consideration of add-on technologies like carbon capture and sequestration systems, the agency acknowledges that such technologies present “significant logistical hurdles” that may render them inappropriate at the present time (GHG Guidance, p. 38).  Control technologies are also most commonly selected based on the permit applicant’s primary purpose or objective, so the Clean Air Act would typically not require an applicant for a coal-fired power plant to switch to a less carbon-intensive fuel (e.g. natural gas or renewable energy) (id. at 29).

Instead, sources that trigger the GHG permitting requirements are more likely to be required to implement energy efficiency improvements, which are promoted throughout EPA’s guidance.  For instance, EPA notes that “an applicant proposing to build a new facility that will generate its own energy with a boiler could also consider ways to optimize the thermal efficiency of a new heat exchanger that uses the steam from the new boiler” (id. at 32).  Other options for GHG reductions include the use of certain types of biomass or implementation of a source-wide Environmental Management System.

The new guidance may impact sources not directly covered by the new GHG controls.  With respect to permitting decisions for other pollutants, EPA instructs applicants and authorities to “consider how the control strategies under consideration may affect GHG emissions,” and certain control technologies may be rejected in part based on their projected contribution to climate change (id. at 42).

As implementation of its GHG regulations draws closer, however, EPA’s efforts are facing serious legal and legislative challenges.  Suits pending in the D.C. Circuit seek to overturn several EPA rules regulating GHGs under the Clean Air Act, including the tailoring rule.  In the Senate, meanwhile, a legislative proposal would delay EPA’s stationary source regulations for another two years.

November 11, 2010

DEC Issues Soil Cleanup Guidance CP-51 to Replace TAGM 4046

The New York State Department of Environmental Conservation (“DEC”) recently issued CP-51/Soil Cleanup Guidance, which applies to each of the remedial programs administered by DEC’s Division of Environmental Remediation (including, inter alia, the Inactive Hazardous Waste Disposal Site Remediation Program, the Brownfield Cleanup Program and the Spill Response Program).  The new guidance replaces Technical Administrative Guidance Memorandum (“TAGM”) 4046: Determination of Soil Cleanup Objectives and Cleanup Levels, dated January 24, 1994.

By providing for defined remedial approaches and uniform standards, CP-51 marks an important departure from TAGM which provided recommended soil cleanup objectives (“RSCOs”), but did not explain how the Department would use those RSCOs in any particular remedial program or in any particular case.  Promulgation of the new Part 375 Soil Cleanup Objectives (“SCOs”) in 2007, which specified that they applied to the Brownfield Cleanup Program and the State Superfund Program, lead to an odd situation in which different programs administered by Department (for example the Spills and Brownfield Cleanup Programs) applied different soil cleanup objectives in similar locations and matters without any explanation how or why this was being done.

The new guidance sets forth the procedure for selecting the appropriate soil cleanup levels under each remedial program, as well as for determining whether the standards for protection of ecological resources or protection of groundwater should apply.  It also discusses soil cleanup levels to address “nuisance conditions” such as odors and staining, polycyclic aromatic hydrocarbons (“PAHs”) and polychlorinated biphenyls (“PCBs”).

CP-51 supplements the regulatory soil cleanup objectives (“SCOs”) by establishing supplemental SCOs (“SSCOs”) for those chemical compounds for which Recommended Soil Cleanup Objectives had been established under TAGM, but were excluded from DEC’s Part 375 regulations.  Parties may also elect to determine site-specific soil cleanup levels, but must do so in accordance with the same approach utilized by DEC in establishing the SCOs and SSCOs.

In an apparent effort to address recent BCP case law to the contrary, DEC emphasizes that SCOs and SSCOs are merely screening tools and that:

The exceedance of one or more applicable SCOs or SSCOs…alone does not trigger the need for remedial action, define “unacceptable” levels of contaminants in soil, or indicates that a site qualifies for any DEC remedial program…

(CP-51/Soil Cleanup Guidance at 12.)

A copy of the CP 51 is available here.

November 9, 2010

Governor-Elect Andrew Cuomo Outlines Environmental Agenda for New York

Governor-elect Andrew Cuomo released a 160-page environmental agenda for New York on Saturday, October 30, three days before he was elected to be New York’s next Governor on January 1st, 2011.  The document allows some insight into the vision and priorities of the next administration with regard to the environment.

One of the most significant components of the agenda is an overall vision of promoting and talking about environmental protection in the context of economic development in the State.  It emphasizes that “environmental protection can benefit our economy—creating green jobs while reducing pollution …”[1] The environmental agenda, like other parts of Cuomo’s published agenda for reforming New York State,  proposes review and reform of the state’s environmental bureaucracy to maximize environmental protection and coordination among agencies, and create cost savings.  The Governor-elect would task the state’s Spending and Government Efficiency Commission with this review of existing agencies and procedures.[2]

The document also suggests that Governor-elect Cuomo will be as much about the carrot as the stick when it comes to promoting conservation.  He proposes a “Cleaner Greener Communities Competitive Grant Program” to help create incentives for sustainable communities, encourage smart growth, and reduce sprawl.  The grants would support innovative comprehensive regional plans which incorporate sustainability, transportation, emissions and efficiency issues into the planning framework.[3] Where the funds for such a grant program will come from is not spelled out.

Cuomo’s environmental agenda supports the continuation of New York’s Brownfield Cleanup Program (“BCP”), including the tax credits component, while streamlining the BCP process to ensure its effective use on those sites that need it most.[4] The document does not address the State’s participation in the Federal Superfund program, from which current Governor David Paterson has proposed to withdraw.

On Marcellus Shale, the Cuomo agenda takes a middle road, stating that “New York State must ensure that, if and when the Shale’s natural gas is obtained, it does not come at the expense of human health or have adverse environmental impacts.”[5] Potential impacts to watersheds are given special mention, suggesting that drilling in the New York City watershed and other watersheds will be given enhanced scrutiny.  On another energy-related issue, Cuomo restates a longstanding position that Indian Point nuclear plant be shut down.[6]

Cuomo also proposes a review of the State Environmental Quality Review Act (“SEQRA”) process to expand SEQRA considerations to include environmental justice, and strengthen the current Environmental Justice Policy “so it gives more robust assurance that adequate consideration is given to environmental justice.”[7]

While budget and political realities will no doubt impact Cuomo’s implementation of his agenda, the Governor-elect’s proposed agenda nonetheless provides a window into his environmental policy preferences in advance of his taking office on January 1st.   This preview suggests a potential that the new administration will take a broader view of environmental protection that goes beyond regulation to promoting smart growth and sustainable development as part of an overall statewide focus on economic development.

  • Download a copy of the agenda here (pdf)

[1] Cuomo 2010, Cleaner Greener NY, at 1 (2010).

[2] Id. at 7.

[3] Id. at 91-92.

[4] Id. at 94.

[5] Id. at 96.

[6] Id. at 95.

[7] Id. at 97-98.

November 5, 2010

Gov. Paterson Proposes Eliminating New York Participation in Federal Superfund Program

In a radio interview last week, outgoing New York Governor David Paterson announced his plans to eliminate the state’s participation in the federal Superfund cleanup program.  The proposal is one of several cuts designed to reduce the state’s budget deficit and accommodate the proposed layoffs of an additional 898 state employees by the year’s end, including 150 in the Department of Environmental Conservation (“DEC”).

The immediate impact of Paterson’s announcement on ongoing and future site cleanups is unclear, and DEC said that “no final decision has been made” on the issue.  The state and federal governments currently operate their own Superfund programs, created through separate statutes, and it appears that cleanup will continue as planned for sites listed exclusively under the state program.

According to the Albany Times Union, however, there are 114 federal Superfund sites in New York, with the state and federal governments often cooperating on remedial efforts.  For instance, DEC is listed as a support agency in the ongoing, federally-led Hudson River Superfund cleanup, with state officials assisting in the development and oversight of General Electric’s cleanup work.  Under Paterson’s plan, “the state will not be involved” at federally listed sites moving forward.

Because the federal Superfund law is not a formally delegated program like the Clean Air Act or Clean Water Act, Paterson’s plan should not require legislative or administrative action, but could instead be accomplished primarily through a reallocation of funds within DEC.  However, federal law requires that states fund 10% of the Environmental Protection Agency’s remedial costs for federal sites where the potentially responsible parties cannot be identified or held financially responsible.  See 42 U.S.C. § 9604(c)(3).  Those funding obligations, memorialized through State Superfund Contracts (“SSCs”), would continue despite Paterson’s planned withdrawal.  Of course, the ultimate decision on the state’s participation in the federal Superfund program will rest with the new governor-elect Andrew Cuomo.

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