December 21, 2011
EPA has announced the issuance of a final rule limiting emissions of mercury and other air toxics, including metals and acid gases, from coal- and oil-fired power plants. The rule applies to new and existing power plants larger than 25 megawatts that burn coal or oil to produce electricity for sale through the national electric grid. It does not apply to natural gas-fired power plants unless the fuel for those plants is produced by gasifying coal or oil.
Existing sources will have three years to comply with the new emissions limits. State permitting authorities may grant individual sources an additional year to comply under certain circumstances.
The rule also includes revisions to the New Source Performance Standards; these revisions apply to new coal- and oil-fired power plants and set standards for emissions of particulate matter, sulfur dioxide, and nitrogen oxides.
EPA’s web page on the rule may be found here; a press release is available here. In addition, EPA has prepared, broken down by state, a list of facilities that it anticipates will be covered by the new air toxics rules.
For additional information, contact Ed Roggenkamp.
December 19, 2011
We are very pleased to announce that Jennifer Coghlan has become an SPR Partner.
Jennifer regularly works with landowners, developers, consultants and engineers to successfully guide development projects through environmental review processes under the National Environmental Policy Act (NEPA), the State Environmental Quality Review Act (SEQRA) andNew York City’s Environmental Quality Review (CEQR). She frequently advises clients with respect to remediation of contaminated sites and brownfield redevelopment, and has litigated claims for recovery of remediation costs under the federal Superfund Law (CERCLA), the federal hazardous waste law (RCRA), and the New York State Navigation Law. Jennifer also has extensive experience in federal, state, and local permitting processes, including those of the Environmental Protection Agency (EPA), the Army Corps of Engineers, the New York State Department of Environmental Conservation (DEC), the New York State Office of General Services, the New York State Department of State and the City of New York.
December 16, 2011
In a 5-2 decision issued on December 15, 2011, New York’s highest court upheld Department of Environmental Conservation (“DEC”) regulations authorizing the cleanup of state Superfund sites to “pre-disposal conditions, to the extent feasible.” The ruling also affirms that DEC can and will consider technical feasibility and cost-effectiveness, as well as the intended use of a subject property, when setting cleanup requirements at approximately 950 contaminated sites in New York State.
The New York State Superfund Coalition (the “Coalition”), a group consisting of owners of inactive hazardous waste disposal sites, challenged DEC’s regulations as exceeding the authority derived from the state Superfund law, which calls for the “complete cleanup” of sites through the elimination of the “significant threat” posed by hazardous wastes. The Coalition argued that the regulations’ reference to “pre-disposal conditions” went beyond this statutory authority, and allowed DEC to order the removal of “every last molecule” of contamination and to return sites to “pre-Columbian” conditions.
The Court of Appeals rejected this claim, stressing that the stated goal of a “complete cleanup” is “aspirational” because that goal “can be constrained by technological feasibility, cost-effectiveness, and procedural due process, among other things.”
Before initiating a remedial investigation at a state Superfund Site, DEC must first determine that site presents a “significant threat” to public health or the environment. In his dissent from the Court of Appeals’ decision, Judge Eugene Pigott wrote: “[I]t is clear from the statutory language that the Legislature intended to limit the reach of the remedial program to the ‘elimination of the significant threat’ … [and that] DEC’s interpretation of [this provision] goes beyond what any competent Legislature would permit.”
Both the majority opinion and the dissent, however, emphasize that DEC cannot make arbitrary or draconian remedial decisions without such decisions being subject to challenge under the rules. DEC has recognized in practice and in its regulations that it may not be feasible to return industrial sites to a state of nature given the complexity of issues presented by such sites, and that technical and economic feasibility are, therefore, appropriate considerations under the Superfund scheme. The Court of Appeals found that the challenged regulations were consistent with DEC’s current practice of making remedial decisions that involve less than complete removal, provided that the remedial action protects public health and the environment.
For more information on the remediation of inactive hazardous waste sites in New York, contact Mark Chertok, Michael Bogin, or Jennifer Coghlan.
December 14, 2011
On November 23, 2011, the New York Department of Environmental Conservation (“DEC”) proposed regulations implementing the Water Resources Protection Act, a new law requiring a DEC permit for water withdrawals exceeding 100,000 gallons per day. In addition to setting forth permitting procedures, the regulations contain additional exceptions and critical deadlines for incorporating existing water usage requirements into the new regulatory scheme.
Under existing state requirements, agricultural, commercial and industrial facilities that withdraw more than 100,000 gallons per day or surface or groundwater must file annual reports with DEC, but those facililties had not previously been required to apply for a withdrawal permit. To ease the transition into the new permitting program, parties who have reported their water withdrawals to DEC by February 15, 2012 would qualify for an “initial permit” under the proposed rules, streamlining the permitting process and incorporating their maximum reported withdrawal capacity. Initial permits would also be considered “minor projects” under the Environmental Conservation Law, so they are less likely to require permit hearings or to trigger review under the State Environmental Quality Review Act (“SEQRA”).
DEC also proposed new exemptions to the permitting requirements. The Water Resources Protection Act contains six statutory exemptions, including groundwater pumping at certain contaminated sites, and closed loop, standing column, or other non-extractive geothermal heat pumps. DEC’s regulations would add eight more exemptions, such as withdrawals from the Atlantic Ocean or Long Island Sound, ballast water necessary for lawful vessel activity, and certain construction and maintenance activities that do not impact the capacity of a water withdrawal system.
Notably, while the statute authorizes DEC to establish “quantitative standards that maintain stream flows protective of aquatic life,” DEC has not chosen to propose such standards at this time. However, DEC will consider “significant individual or cumulative adverse impacts” on aquatic life in its water withdrawal permitting decisions.
DEC has estimated that approximately 400 industrial, commercial, and agricultural users would be covered by the new permitting requirements, including high volume hydraulic fracturing operations, which can require millions of gallons of water at a single well. DEC is accepting public comment on the proposed regulations until January 22, 2012.
For more information on water issues or the proposed withdrawal permitting scheme, contact Michael Bogan or Michael Lesser.
December 13, 2011
On Wednesday, February 15, 2012, SPR partner Michael Bogin will be an instructor in a seminar addressing legal issues faced by New York landscape architects. Mr. Bogin’s presentation will cover federal and states rules governing stormwater management. For more information about the seminar, which is offered by HalfMoon LLC, please click here.
December 12, 2011
We are pleased to announce that Christopher Amato has joined our firm and will be working in our newly opened Albany, NY office. Chris was most recently Assistant Commissioner for Natural Resources at the New York State Department of Environmental Conservation. He has practiced environmental law for more than 30 years, both in private practice and in government service. His public service includes having been Deputy Chief of the Environmental Protection Bureau in the New York State Attorney General’s Office, Senior Litigator in the Environmental Law Division of the New York City Law Department, and Senior Attorney with the Adirondack Park Agency. In both his private practice and government service, Chris has tried complex litigation, including important hazardous waste matters. Chris has also worked as a biologist for the Northwest Indian Fisheries Commission and the U.S. Fish and Wildlife Service.
Chris will again be focusing on environmental litigation and natural resources issues, including hydrofracking, endangered species, wetlands and marine fisheries. He also will be working on environmental, cultural resource, and treaty rights issues and litigation on behalf of several Indian Nations in New York.
With Michael Lesser and Chris in our Albany office, we have an efficient and cost effective method of representing our clients in hazardous waste litigation and to better serve clients on a broad range of issues.
The Albany office is located at 90 State Street, Suite 700, Albany, NY 12207. The office phone number is (518) 591-4663.
December 8, 2011
On November 17, 2011, the New York State Public Service Commission (“PSC”) decided to postpone its decision on Covanta Energy Corp.’s (“Covanta’s”) petition to classify waste-to-energy power as “renewable” under New York’s Renewable Portfolio Standard (“RPS”). New York’s RPS aims to produce 30% of the state’s electricity from “renewable sources” by 2015, up from approximately 21% in 2009.
To attain that goal, the RPS provides production incentives for renewable electricity generation, funded through a surcharge on ratepayers’ electricity bills and administered by the New York State Energy Research and Development Authority (“NYSERDA”). Eligible renewable electricity generators participate in a competitive solicitation process for the incentives, which are provided based on the megawatt-hours of renewable electricity delivered toNew York ratepayers or used on site. Additionally, the generator transfers all rights to the “RPS attributes” to NYSERDA, so the generator cannot benefit from the resulting pollution reductions under other emissions trading programs.
Most of the incentives to date have gone to wind, hydroelectric, biomass, and landfill gas projects, though a range of other sources – from solar, tidal and wave energy to anaerobic digesters converting agricultural biogas into electricity and heat – are also eligible. Covanta’s prior requests to include waste-to-energy facilities in the RPS, in 2004 and 2010, were both denied by the PSC.
Covanta’s petition presents a controversial question, as waste-to-energy plants provide an alternative to fossil fuels, but simultaneously present a number of environmental issues that are different from those associated with traditional renewable energy sources. Environmentalists and the New York Attorney General’s Environmental Protection Bureau have opposed the petition, citing, among other things, concerns regarding mercury emissions.
Proponents of waste-to-energy facilities argue that incineration for power production is better for the environment than transporting the waste to landfills. Covanta submitted a letter to the PSC on December 6th clarifying its position and highlighting the greenhouse gas benefits of waste-to-energy facilities. Covanta reasons that environmental benefits from waste-to-energy production make waste-to-energy a more environmentally-attractive option than landfill gas recovery, a method which is currently RPS-eligible.
A middle ground approach has been adopted in other states, including Connecticut, New Jersey, Massachusettsand Pennsylvania, whereby waste-to-energy facilities may receive subsidies, but not to the same degree as their zero emissions renewable generator counterparts. DEC officials have supported this compromise as an appropriate measure in the event that the PSC decides to allow waste-to-energy plants in the RPS.
For more information on the firm’s practice in the areas of energy and waste-management, contact Jeff Gracer and Paul Casowitz.
Update (December 14, 2011): In a recent letter to the PSC, Covanta withdrew its petition to classify waste-to-energy power as renewable under the New York RPS.
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