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September 29, 2011

Upstate Lawsuit Highlights Local Government Concerns about Fracking; Statewide Regulations Proposed

On September 16, a natural gas company filed a lawsuit challenging new zoning laws in Dryden, New York that prohibit oil or gas exploration anywhere in the town.  Dryden, a town in Tompkins County which sits atop the Marcellus Shale, is one of several central New York municipalities that have taken measures aimed at limiting the use of hydraulic fracturing, or “fracking.”  In its petition, the Anschutz Exploration Corporation (“Anschutz”) argues that the New York Environmental Conservation Law (“ECL”), Section 23-0303(2), precludes local governments from regulating oil and gas drilling, except in the context of laws regulating local roads and property taxes.

The Dryden lawsuit comes in the wake of efforts by over twenty municipalities in central New York to assert control over hydraulic fracturing through the use of zoning or other mechanisms.  In addition to sharing generalized concerns about the effects of fracking on drinking water and air quality, local communities also face, as a result of fracking, increased truck traffic on local roads, visual impacts, noise pollution, and other effects. If the present lawsuit results in a holding that local governments may not use zoning laws to regulate such effects, Dryden and other municipalities may need to examine how these effects may be managed through the regulation of local roads and taxes, consistent with ECL § 23-0303(2).

Alternatively, if Anschutz prevails in its suit, local governments may be constrained to rely on state law for generalized protections that could reduce fracking’s local effects.  The New York State Department of Environmental Conservation recently released the complete version of its Revised Draft Supplemental Generic Environmental Impact Statement (“SGEIS”) on the use of hydraulic fracturing, as well as proposed regulations governing hydraulic fracturing. Both the Revised Draft SGEIS and the proposed regulations are open for public comment through December 12, 2011

For more information about local governments and the regulation of hydraulic fracturing’s effects, contact Steven Barshov.


September 26, 2011

EPA Recognizes N.Y.C. Brownfield Program

The United States Environmental Protection Agency (“EPA”) recently awarded federal recognition to New York City’s Brownfield Cleanup Program.  This is the first time EPA has recognized a municipal cleanup program.  EPA hopes to use New York City’s program as an example to be followed by additional municipalities.

EPA’s formal recognition makes the City eligible to use federal brownfield grants for the investigation and cleanup of contaminated properties.  City officials also believe that federal support of the City’s brownfield program will expedite the cleanup and redevelopment of vacant and underutilized properties while creating new businesses, jobs, and affordable housing. Federal recognition augments the formal acceptance of the City’s Brownfield Cleanup Program by the New York State Department of Environmental Conseration (“DEC”).

Significant elements of the New York City Brownfield Cleanup Program, discussed here, include:

  • The issuance of a Notice of Completion for cleaned-up properties, which includes a liability release from the City;
  • a statement from New York State that DEC has no further interest and does not plan to take enforcement measures or require remedial action for the property under state or federal law; and
  • the issuance of a Green Property Certification from the City indicating that the property is protective of public health and the environment.

Federal and state approval of N.Y.C.’s Brownfield Cleanup Program, in combination with the City’s ability to access federal brownfield funding, should strengthen the City’s program.

For more information about the N.Y.C. Brownfield Cleanup Program, please contact Michael J. Lesser.



September 16, 2011

Cuomo Signs Law Requiring Permits for Commercial and Agricultural Water Withdrawal

By: Maggie Macdonald — Filed under: Compliance, Emerging Issues, Hydraulic Fracturing & Marcellus Shale, New York Environmental Law — Posted at 11:32 am

On August 16, Governor Andrew Cuomo signed a law requiring state permits for water withdrawal systems with the capacity to withdraw 100,000 gallons or more of surface and groundwater per day.  The law amends the Environmental Conservation Law (“ECL”) § 15-1501, which had previously excluded industrial and agricultural users from permitting requirements.  The new permitting requirements are intended to bring New York into compliance with commitments under the Great Lakes Compact, a regional water conservation program that has been plagued by delays.

Under the new law, which takes effect April 1, 2012, the New York State Department of Environmental Conservation (“DEC”) is directed to promulgate regulations establishing a permitting system with: minimum standards for operation and new construction of water withdrawal systems; monitoring, reporting and recordkeeping requirements; and protections for sources of potable water. The law further provides DEC with discretion to impose additional requirements and carve out additional exceptions.

DEC estimates that the new law will require more than 400 industrial, commercial and agricultural users to obtain state permits for major water withdrawals for the first time. For reference, the DEC also provided the following examples of the types of facilities that would require permits: a 925-room hotel, a 6,500-student day school, and a dairy farm housing 2,000 cows.  The statute also exempts certain withdrawal activities, including withdrawals at remediation sites conducted pursuant to a federal or state court order or agency agreement

In evaluating each permit application, DEC is required to make eight determinations, including whether the supply will be adequate for the proposed use, whether the need for the withdrawal can be reasonably avoided, and whether the quantity of the withdrawal is considered reasonable. Once a permit application is approved, the water withdrawal permit will be valid for up to ten years.

All entities required to obtain a permit under the new law will also be required to submit annual reports including information relating to water usage and water conservation measures. Entities that currently withdraw more than 100,000 gallons of water per day are already required to file annual reports with the DEC pursuant to ECL § 15-3301.  These entities will receive initial permits based on their maximum previously reported capacity.

Proponents of the new law view it as an important step toward responsible water use and conservation in New York, especially in light of the impending licensing process for hydraulic fracturing, likely to begin next year.  Impacts of the new permitting system are yet unknown, but will become more clear when DEC promulgates implementing regulations.


September 8, 2011

Tropical Storm Irene Highlights Need for Environmental Emergency Planning, Response Efforts

By: Michael Lesser — Filed under: Compliance, Emerging Issues, Enforcement, New York Environmental Law — Posted at 7:52 pm

The recent devastating impacts of Tropical Storm Irene and the solemn remembrance of 9/11 make a review of New York’s emergency environmental procedures both timely and relevant.  Such emergencies affect existing environmental permits and create new unanticipated environmental problems that may require exceptions and waivers to the environmental status quo.

The overall coordination and implementation of state emergency response efforts is the responsibility of the newly reorganized Division of Homeland Security & Emergency Services (“DHSES”), although the New York State Department of Environmental Conservation (“DEC”) continues to provide critical resources for search, rescue and spill response.  The state’s Public Authority Law also allows public authorities such as the MTA to invoke independent emergency powers.

In response to Tropical Strom Irene, Governor Cuomo has issued a number of executive orders and press releases governing emergency preparations and recovery.  Of particular note:

  • Executive Order 17 directs DEC, among other agencies, to “to take appropriate action to protect State property and to assist affected local governments and individuals in preparing for, responding to and recovering from this disaster.”
  • Executive Order 18 suspends certain parts of New York’s Vehicle and Traffic Law to allow the use of oversize and unregistered vehicles for disaster relief.
  • Executive Order 19 provides for emergency infrastructure relief and financing.

DEC has provided instructions and contact information for questions concerning the removal and disposal of storm debris.  DEC’s regulations provide legal authority to waive most procedural permit requirements in the case of emergencies, and to allow holders of air permits to operate without liability in certain conditions.  However, despite potential storm-related delays, it is always best to contact the regional DEC permit administrator to determine the status of any specific project or permit or the proper disposal method for any storm-related debris. 

Finally, while DEC and other state agencies may use enforcement discretion, spill reporting requirements generally remain in effect and should be complied with as quickly as the situation allows. In the weekend following Irene, the DEC Spill Hotline received approximately 430 spill reports.  

For more information on emergency environmental planning and New York’s recent storm response efforts, contact Michael Lesser.

September 7, 2011

White House Rejects EPA Proposal to Strengthen Smog Standards

By: Jonathan Kalmuss-Katz — Filed under: Administrative Law, Clean Air Act, Emerging Issues — Posted at 10:20 am

On Friday, September 2, 2011, the White House directed the Environmental Protection Agency (“EPA”) to withdraw and reconsider a proposal to strengthen National Ambient Air Quality Standards (“NAAQS”) for ground-level ozone, the primary ingredient in smog.  The announcement marked the first time that the Obama Administration formally returned one of its own agencies’ proposals, and it could indicate heightened executive scrutiny of forthcoming rules’ economic impacts.      

The “heart of the Clean Air Act,” NAAQS set maximum levels for six “criteria” pollutants at levels necessary to protect public health and welfare, implemented through State Implementation Plans covering a broad range of sources.  The ozone NAAQS were last revised in 2008, when the Bush Administration set a primary standard of .075 parts-per-million (“ppm”) – more lenient than the .06-.07 ppm range recommended by EPA’s Clean Air Scientific Advisory Committee.

In response to a lawsuit filed against the 2008 standards, the Obama administration agreed to reconsider the ozone NAAQS in September 2009 and proposed adopting a standard with the .06-.07 ppm range shortly thereafter.  EPA held three public hearings on its proposal, and as recently as July 26, 2011, EPA stated that it “look[ed] forward to finalizing this standard shortly.”

As the last step before finalization, EPA submitted the rule to the White House Office of Information and Regulatory Affairs (“OIRA”) for review.  Last week, in a surprising turn of events, OIRA returned the rule to EPA, explaining, “The President … has made it clear that he does not support finalizing the rule at this time.”  The return letter, OIRA’s first since January 6, 2009, stated that, in the interest of regulatory consistency, EPA should hold any proposed ozone revisions until 2013 – when the standards are once again due to be revisited under the Clean Air Act.

While the letter did not mention economic considerations, and the Supreme Court has held that EPA cannot consider compliance costs in setting NAAQS, the ozone proposal had attracted substantial attention due to its projected compliance costs exceeding $19 billion.  According to EPA’s Regulatory Impact Analysis, the benefits of the standards were projected to outweigh the costs.  Nonetheless, the NAAQS proposal topped a list of the most expensive proposed regulations that the White House released on August 30, 2011.

The second, third, and fourth rules of that list are also pending EPA proposals, including forthcoming rules governing hazardous air pollution from commercial and industrial boilers and coal ash disposal.  While the White House plans to move forward with those rules, they too must ultimately pass through OIRA – opening the door to potential revisions or delay.