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March 22, 2011

New York City Has Big Plans for the Waterfront

Mayor Michael R. Bloomberg and City Council Speaker Christine C. Quinn recently released a sweeping plan to revitalize and capitalize on New York City’s 520 miles of shoreline.  In addition to a three-year action agenda to complete 130 already-funded projects, it also provides specific plans and goals for various waterfront areas throughout the City.

The plan focuses not only on waterfront access and redevelopment of waterfront sites, but also improving water quality, restoring and enhancing waterfront habitats, and improving coordination between governmental agencies with overlapping jurisdiction over waterways and waterfront sites – one of the major stumbling blocks that has stood in the way of effective action.  The plan also recognizes the need to consider and address the potential impacts of climate change and sea level rise in waterfront projects.

To advance these goals, the plan identifies site-specific projects in 22 reaches of the City’s waterways, and identifies several additional waterfront redevelopment sites.  The plan also includes specific steps that should be taken to implement NYHarborWay, the Bloomberg Administration’s initiative to make New York Harbor a major recreational destination, and to connect Brooklyn Bridge Park, Governors Island, Hudson River Park, The Battery, Ellis Island, Statue Liberty Island, the East River Esplanade and Liberty State Park by ferry and/or bike greenways.

SPR has successfully guided many major waterfront projects to completion, and the plan includes several current projects on which SPR has served or currently serves as counsel, including: completion of Brooklyn Bridge Park, the redevelopment of the Admiral’s Row site at the Brooklyn Navy Yard, redevelopment of the former Domino Sugar factory in Williamsburg, the proposed expansion of the New York Container Terminal on Staten Island, the next phase of development of Arverne by the Sea in the Rockaways, redevelopment of the Battery Maritime Building in Lower Manhattan, and redevelopment of Pier A in Battery Park.

The City will track the progress of its various waterfront initiatives on its website on an ongoing basis.  The plan and the updates can be accessed here.



March 17, 2011

EPA Expands Clean Air Act Regulations with Mercury Proposal and Boiler Rules

By: Jonathan Kalmuss-Katz — Filed under: Clean Air Act, Climate Change Law — Posted at 3:43 pm

On March 16, 2011, the Environmental Protection Agency (“EPA”) proposed long-anticipated limits on power plant emissions of mercury and other hazardous air pollutants (“HAPs”) under Section 112 of the Clean Air Act (“CAA”).  Along with recent emissions standards for industrial and commercial boilers and a new proposal for power plant GHG controls due out in July, EPA is undertaking a series of major CAA rulemakings at the same time its authority under that statute is facing legal and legislative attacks.

EPA’s latest rule would establish the first nationwide standards for power plant emissions of mercury, arsenic and other HAPs, with numeric limits based upon “maximum available control technology” as required under the 1990 CAA Amendments.  The George W. Bush administration attempted to create a cap-and-trade program for power plant mercury emissions, which the D.C. Circuit Court of Appeals struck down in 2008.  EPA’s new proposal would reduce mercury from approximately 525 coal and oil-fired power plants by 91 percent once fully implemented, and it covers a range of other pollutants that were not regulated under the Bush-era mercury rule.

Last month, under the pressure of a court deadline, EPA also finalized new emissions regulations for more than 200,000 industrial, commercial, and institutional boilers, covering sources ranging from power plants and refineries to apartment buildings and hospitals.  Owners of smaller boilers with a heat input capacity of less than 10 million Btu per hour will not need to install new pollution controls, but are instead required to perform and document biennial boiler “tune-ups.”  Moreover, while EPA released its boiler regulations pursuant to its judicially-imposed deadline, it simultaneously announced that it is formally reconsidering parts of those rules and that further changes may be forthcoming.

Finally, under a settlement with New York and other states, cities and non-profit organizations, EPA committed to proposing New Source Performance Standards (“NSPS”) for power plant greenhouse gas emissions (“GHG”) by July 26, 2011.  The EPA is currently holding listening sessions to solicit input for that proposal, although legislation recently passed by the House Energy and Commerce Committee would preempt this and other EPA efforts to regulate GHG emissions under the CAA.

EPA’s upcoming NSPS proposal may also factor into a pending case before the Supreme Court, which will determine whether a coalition of states and land trusts may sue power plants to compel GHG reductions under a public nuisance theory.  Responding to arguments that recent EPA climate regulations had displaced federal common law remedies, this week the state plaintiffs conceded that implementation of NSPS covering power plants GHG emissions would bar their suit, but argued that until such rules were finalized the case should be returned to the lower court and stayed pending EPA’s regulatory decision.  Oral arguments in American Electric Power v. Connecticut are scheduled for April 19, 2011.



March 15, 2011

EPA’s Latest Superfund Nominees Reflect Trend Toward More Complex Cleanups

On March 8, 2011 the EPA announced its latest round of potential Superfund sites – nominees to be listed on the National Priorities List (NPL) under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), commonly known as the Superfund statute.  The proposed sites included the New Cassel/Hicksville groundwater contamination site (NCH Site), located in Nassau County, New York.  According to EPA records the NCH Site includes approximately 10 million square feet of aquifer contaminated by chlorinated compounds, including perchloroethylene (PCE) and trichloroethelyne (TCE).

EPA’s nomination of the NCH Site reflects an emerging trend toward large, multiparty Superfund sites in the New York metro area.   In addition, since 2009 the rate at which EPA has been adding sites to the NPL has increased from prior years, and the recent nominations reinforce this trend.

Complex, multiparty sites were relatively common in the two decades following CERCLA’s enactment in 1980.  EPA listed many former landfills, casting a broad liability net over dozens of potentially responsible parties (PRPs) at a time, and these sites often involved tens or hundreds of millions of dollars in response costs.  However, while listings continued, by 2005 practitioners and commentators had noted a dropoff in large government-led cleanups.[1] Around this time, intense economic pressures to develop property also resulted in many voluntary cleanups by parties who had no prior connection to the contamination.  The focus of CERCLA practice shifted accordingly, from EPA-led megasites to voluntary cleanups, with courts scrutinizing the legal avenues of recovery for volunteers under the statute’s cost recovery and contribution provisions.[2]

More recently, the EPA has named several large, complex, and costly sites in the New York metropolitan area to the NPL, including the Gowanus Canal and Newtown Creek, each estimated to involve cleanups costing hundreds of millions of dollars.  EPA is also pursuing efforts to investigate and remediate portions of the Lower Passaic River, as part of the Lower Passaic River Restoration Project.  At another large cleanup site, in July 2010, 100 PRPs signed on to conduct a Remedial Investigation/Feasibility Study for the Berry’s Creek study area in Bergen County, NJ.  The first phase of dredging of the Hudson River Superfund site by General Electric began in 2009 and cost approximately $560 million.  As the above examples illustrate, EPA’s Region 2 appears increasingly focused on contaminated waterways, which by their nature involve complex and costly cleanups.

The rising number of Superfund sites is not just a local development; the number of listings is on the rise nationwide.  Between 2003 and 2008 EPA listed an average of 14.6 new sites per year.  By contrast, in the first few months of this year, 25 sites have already been proposed or listed, and if all those sites are listed average new listings per year since 2009 will jump to 21.6—50% over the previous five years.  Of course, more sites may also be listed in the remaining nine months of 2011.[3]


[1] See, e.g., David A. Dana, State Brownfields Programs as Laboratories of Democracy?, 14 N.Y.U. Envtl. L.J. 86, 87-89 (2005) (analyzing “decline” of government-led CERCLA cleanups and enforcement).

[2] See, e.g., United States v. Atlantic Research Corp. 551 U.S. 128 (2007); Consolidated Edison v. UGI Utilities, Inc. 423 F.3d 90 (2d. Cir. 2005).

[3] The numbers here were derived from EPA’s lists of proposed and listed NPL sites.



March 10, 2011

New York Bills Seek Enhanced Scrutiny of Hydraulic Fracturing

On February 23, 2011 a bill[1] was introduced in the New York State Assembly that would impose a moratorium on new permits for the drilling of wells using hydraulic fracturing and horizontal drilling until the Environmental Protection Agency (“EPA”) has issued the results of its pending study of the effects of hydraulic fracturing on drinking water and public health.  EPA expects to obtain preliminary results of its study by the end of 2012, and aims to produce a report in 2014.  Thus, the proposed law could significantly delay in the issuance of new permits for hydraulic fracturing in New York.  At present, an executive order issued by former Governor Paterson and continued by Governor Andrew Cuomo prevents the issuance of new permits for horizontal hydraulic fracturing until the completion of the Final Supplemental Generic Environmental Impact Statement (“SGEIS”) concerning this process.  The Assembly bill was sponsored by Steve Englebright (D), who represents Assembly District 4 in Suffolk County and is a geologist by training.

On March 4, 2011, a separate bill[2] was introduced in the New York State Senate that proposes modifications to the General Obligations Law.  These modifications would encourage the disclosure of the chemicals used during hydraulic fracturing.  The bill bars any contract relating to or referring to hydraulic fracturing from prohibiting disclosure of the chemicals used during that process, and bars the diminishment of pay to a hydraulic fracturing contractor based on a provision in the contract calling for the disclosure of such chemicals.  The Senate bill was sponsored by John Bonacic (R) of the 42nd Senate District, which encompasses Delaware, Sullivan, Orange, and Ulster Counties, as well as the Catskill watershed system supplying New York City’s drinking water.

The two bills reflect different approaches to the ongoing concern among New Yorkers that hydraulic fracturing could have unintended consequences on drinking water and public health.  A recent article in the New York Times has raised such concerns in depth, based on previously unreleased reports by EPA and industry.  According to the Times, these reports indicate that naturally occurring radioactive materials in waste released from hydraulic fracturing wells are not adequately removed by sewage treatment plants or dilution before or during discharge into rivers that provide drinking water. The Times article focuses on hydraulic fracturing activity in Pennsylvania, where the use of this process has been much more extensive than in New York.  However, the article highlights an important issue that might be revisited as DEC works on the SGEIS; the initial draft SGEIS concludes that naturally occurring radioactive materials resulting from hydraulic fracturing pose very little health risk.


[1] The text of the bill, A05547, is available by search at the N.Y. State Assembly’s website.

[2] The text of the bill, S03765, is available by search at the N.Y. State Assembly’s website



March 9, 2011

New NYCDEP Asbestos Regulations Effective February 3, 2011

By: Jennifer Coghlan — Filed under: Compliance, New York City Environmental Law — Posted at 4:24 pm

The New York City Department of Environmental Protection (“NYCDEP”) has issued new asbestos regulations, which became effective February 3, 2011.   Examples of new provisions include:

  • revisions to the definitions of “asbestos project” and “building materials”;
  • new requirements for the contents of work place safety plans;
  • clarification of certain items subject to the asbestos exemption certification;
  • modifications to monitoring report requirements; and
  • new specifications for required signage.

All property owners and contractors should be sure they are in compliance with the latest regulations.  Please contact us for more information on these recent changes.



March 7, 2011

Steven Russo Appointed Deputy Commissioner and General Counsel of DEC

By: Michael Bogin — Filed under: Announcements, New York Environmental Law — Posted at 12:09 pm

We are pleased to report that Governor Andrew Cuomo has appointed Steven Russo to serve as Deputy Commissioner and General Counsel of the New York State Department of Environmental Conservation (DEC).   Steve has been a valued SPR partner, colleague and friend for over 15 years.

Steve graduated from Columbia Law School in 1989, where he was a Harlan Fiske Stone scholar and Articles Editor of the Columbia Journal of Environmental Law.   He previously served as Deputy Assistant Chief of the Environmental Law Division of the New York City Corporation Counsel’s office.   At SPR, Steve engaged in substantial litigation for private clients, in addition to representing city and state agencies.  His experience in virtually all aspects of environmental law, both in government service and private practice, make Steve an excellent choice.  Although we will all miss him, we wish Steve well in his return to government service.



March 1, 2011

EPA Postpones GHG Reporting Deadline

By: Jonathan Kalmuss-Katz — Filed under: Clean Air Act, Climate Change Law, Compliance, Enforcement — Posted at 4:51 pm

On March 1, 2011, the Environmental Protection Agency (“EPA”) announced its plans to postpone the upcoming deadline for mandatory reporting of greenhouse gas (“GHG”) emissions, which is currently scheduled for the end of this month.  EPA has not set a revised deadline, though the agency reported that it “is in the process of finalizing a user friendly online electronic reporting platform,” which it plans to unveil this summer.

EPA’s GHG Reporting Program arose out of a provision in the Consolidated Appropriations Act of 2008, requiring “mandatory reporting of greenhouse gas emissions above appropriate thresholds in all sectors of the economy of the United States.”  EPA first proposed reporting requirements in March 2009 and finalized its initial regulations six months later, on October 30, 2009.  Since then, the agency has issued a series of regulations expanding and clarifying the scope of reporting for various industries and activities, such as the mandatory disclosure of reporting facilities’ co-generation power units.

The GHG Reporting Program primarily covers GHG-emitting facilities, fossil fuel suppliers, and industrial gas suppliers whose aggregate GHG emissions exceed 25,000 metric tons carbon-dioxide equivalent (CO2e) per year, though facilities in certain emissions intensive source categories (e.g., cement manufacturing and petroleum refining) are universally covered.  EPA has projected that the rule would cover approximately 10,000 sources, which are collectively responsible for 85-90 percent of total U.S. GHG emissions.

Covered facilities were required to begin monitoring their GHG emissions on January 1, 2010, and the deadline for their first annual reports was set to be March 31, 2011.  EPA plans to make much of the data it collects publicly available, and the reported information is expected to inform recent and forthcoming efforts to regulate stationary source GHG emissions under the Clean Air Act.  Earlier this year, EPA began phasing in the first GHG permitting requirements for certain new and modified major stationary sources, and the agency is legally obligated to propose GHG New Source Performance Standards (“NSPS”) for power plants by July 26, 2011.

EPA still plans to publish data submitted under the GHG Reporting Program “later this year,” though it is not clear when facilities will have to report their 2010 emissions.  Instead, the agency promised to provide additional information on its deadline changes over the coming weeks.

EPA’s recent announcement comes on the heels of a Congressional vote which cast further uncertainty over the future of the agency’s suite of GHG regulations.  On February 18, 2011, the House of Representatives passed a seven-month budget “continuing resolution” that would largely de-fund EPA’s GHG reporting registry and prevent EPA from spending any funds to implement its stationary source GHG regulations.  The Senate has not taken up that bill, however, and the House has since passed a two week stop-gap resolution without the GHG provisions.

For more information on EPA’s GHG Reporting Rule and other climate-related initiatives, contact Jeffrey Gracer.