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January 26, 2012

DEC Proposes Power Plant Regulations for Carbon Dioxide Emissions and Environmental Justice

By: Ed Roggenkamp — Filed under: Environmental Impact Review, New York Environmental Law, Renewable Energy & Energy Development — Posted at 4:08 pm

Last week, DEC proposed  two new regulations affecting power plants in New York State.  Both implement provisions of the Power NY Act of 2011, and both apply to proposals to construct or modify power plants with the capacity to generate at least 25 megawatts.

First, DEC proposed carbon dioxide emissions limits for new and expanded power plants (so long as the expansion adds at least 25 megawatts of capacity).  These limits are measured on the basis of a 12-month rolling average by dividing the total emissions of CO2 by the total megawatts generated or fuel input into the plant.

The limits are:

  • 925 pounds of CO2 per megawatt-hour of electrical output, or 120 pounds of CO2 per million Btu of input for combined cycle combustion turbines, stationary internal combustion engines firing only gaseous fuel, or boilers firing over 70% fossil fuel, and
  • 1450 pounds of CO2  per megawatt-hour, or 160 pounds of CO2 per million Btu of input for simple cycle combustion turbines or stationary internal combustion engines firing either liquid fuel or a combination of liquid and gaseous fuel.

Second, DEC proposed regulations governing analysis of environmental justice issues when power plants are sited under the reauthorized Article X of the Public Service Law.  According to DEC Commissioner Joe Martens, these are the first such regulations in the country.

The proposed environmental justice regulations require an initial analysis of the area immediately surrounding the proposed facility to determine whether that area includes an “environmental justice area” containing a minority or low-income community that may already bear a disproportionate share of environmental impacts.  If so, an application to site a power plant must include an analysis of any significant adverse environmental impacts to the environmental justice area resulting from the plant’s operation or construction.  Such an assessment must include:

  • An analysis of the plant’s cumulative impact on air quality,
  • A comprehensive analysis of the environmental justice area, and
  • A comparison of that area to the county or other adjacent communities (for facilities proposed within New York City, this includes the entire city) to determine if the impacts to the environmental justice area are disproportionate.

The regulations also require the applicant to identify, analyze, and implement mitigation measures that will avoid any disproportionate significant adverse environmental impacts to the maximum extent possible.  If the impacts cannot be avoided or minimized, the applicant must offset the impacts.

The proposed environmental justice regulations state that they are “not intended to … create any right to judicial review involving the compliance or noncompliance of any person with this Part.”  DEC also acknowledges, however, that the Power NY Act “expressly provides for judicial review” of power plant siting determinations.  Thus, it is unclear to what extent, if any, the proposed regulations’ disclaimer precludes judicial review of the Act’s mandatory environmental justice analysis, or whether such limitation would be deemed consistent with the underlying statute.

Comments on both sets of proposed regulations are due by 5 p.m. on March 15, 2012.  Information on filing comments is available here.

For more information, contact Jeffrey Gracer.

January 25, 2012

Proposed Zoning Resolution Amendment to Expand New York City “E Designation” Program

By: Maggie Macdonald — Filed under: Land Use & Development, New York City Environmental Law — Posted at 9:32 am

The New York City Department of City Planning (“DCP”) has proposed amendments to the New York City Zoning Resolution, expanding the environmental (E) designation program that identifies sites of potential environmental concern.  The Mayor’s Office of Environmental Remediation (“OER”), which administers the E designation program, is anticipated to publish draft rules to implement the proposed changes in coming weeks.

During area-wide rezonings, the Zoning Resolution authorizes the placement of E designations on affected lots with potential significant adverse air quality, noise or hazardous materials impacts.  Before undertaking any land use or property changes that require a building permit from the Department of Buildings (“DOB”), owners of designated lots must first receive approval from OER that E designation requirements have been satisfied, which may involve additional environmental analysis or remediation.

DCP has summarized the proposed changes to the E designation and related sections of the Zoning Resolution, broadly characterizing the revisions in six categories: environmental restrictive declarations; applicability; enforcement; post-approval modifications; ongoing monitoring; and duplicative and outdated text updates.  

Most importantly, the amended text makes the E designation program applicable to environmental restrictive declaration (“RD”) properties, the first step in doing away with the practice of using environmental RDs.  Currently, DCP uses RDs to ensure investigation and any necessary environmental remediation on applicant-controlled properties in connection with zone changes, variances, special permits and other DCP-issued authorizations.  The E-designation program currently only applies to zoning map amendments; typically, area-wide rezoning.  The proposed amendments would merge both into an expanded E designation program.

The City Planning Commission held a public hearing on the Zoning Resolution amendment on January 4, 2012 and will continue its review through February 29, 2012.  The City Council will then have 50 days to review the amendment.  OER has also indicated that it will be publishing its draft rules implementing the E designation program in the coming weeks. Sive, Paget & Riesel is tracking these developments, and will continue to provide updates as the zoning amendment is finalized and the OER rules become available for review and comment.

For more information on E designations, contact Christine Leas or David Yudelson.

January 18, 2012

New York City adopts new stormwater performance standards for development projects

New York City developers now have a new factor to consider in project design.  On January 4, 2012, the Department of Environmental Protection (“DEP”) adopted a new stormwater performance standard (the “performance standard”), requiring large and medium-scale development projects in combined sewer areas to incorporate larger detention basins or install relatively expensive green or blue roof systems.  The performance standard also imposes stormwater reduction requirements on certain building alterations that increase impervious surfaces.

The DEP rules amend Chapter 31 of Title 15 of the Rules of the City of New York, which regulates the construction, permitting, and inspection of sewer connections.  For a new development, the performance standard establishes a “stormwater release rate” equal to the greater of 0.25 cubic feet per second (“cfs”) or 10% of the new development’s “allowable flow,” the stormwater flow that can be released into a storm or combined sewer based on existing sewer design criteria.  In no case, however, will the new release rate exceed allowable flow. 

For medium and large sized lots, these changes would effectively require a significant increase in stormwater detention on site.  Lots smaller than 5,000 square feet are not likely to have a release rate that exceeds 0.25 cfs, so they will probably only need to comply with existing sewer availability and connection application process requirements.

Redevelopment projects in combined sewer areas may also need to meet new performance requirements.  If a redevelopment requires an alteration permit from the Department of Buildings (“DOB”) and will increase existing impervious surfaces (including building footprints) by more than 20%, the release rate for the altered area must be proportional to the ratio of the altered area to the total site area.  Moreover, on such projects, no new points of stormwater discharge are permitted.  Proposed redevelopments that increase im­pervious surfaces or building footprints by 20% or less are exempt from the stormwater per­formance standard unless an additional sewer connection is proposed.

In addition to the new performance standard, the DEP and DOB have developed new “Guidelines for the Design and Construction of Stormwater Management Systems” (the “Design Manual”) which the City hopes “will ease the development community’s transition to stricter stormwater release rates when connecting to the City’s combined sewer system.”  The stormwater performance standard and Design Manual are key elements of the broader New York City “Green Infrastructure Plan” unveiled by Mayor Bloomberg on September 28, 2010, which aims to reduce combined sewer overflows (“CSOs”) into the City’s waterways by 40% by 2030.

Finally, because the City expects more stringent federal and state Mu­nicipal Separate Storm Sewer Systems (MS4) requirements to be published within the next year, the City expects to revisit the stormwater performance standard and the Design Manual to add stormwater management requirements in separately sewered areas.  The City will then also re­visit the adequacy of the stormwater management program in combined sewer areas.

 For more information on the new stormwater performance standard, contact Michael Bogin.

January 17, 2012

Daniel Riesel and Pamela Esterman to Chair Upcoming Environmental Law Conference

By: SPR — Filed under: Announcements — Posted at 10:27 am

SPR principals Daniel Rieseland Pamela Esterman will serve as co-chairs of the upcoming 42nd annual Environmental Law Course of Study, to be held on February 1-3, 2012 in Washington, DC, co-sponsored by ALI-ABA and the Environmental Law Institute. The course features advanced-level presentations by a diverse faculty from government, universities, private practice and advocacy organizations on legislative initiatives, regulatory changes, and recent judicial precedent concerning air, water, hazardous materials, endangered species, public lands, environmental permitting and review, international environmental law, and environmental justice. This year, the course will also feature panels on setting environmental standards, environmental enforcement, the environmental regulation of energy, and ethics for environmental lawyers. If you are unable to attend in person, this CLE is also available via video webcast. For more detailed information, please visit the course website.

January 11, 2012

EPA Releases Draft Study of Gowanus Canal Cleanup Options

By: Jonathan Kalmuss-Katz — Filed under: CERCLA/Superfund — Posted at 1:05 pm

On January 3, 2012, the Environmental Protection Agency (“EPA”) released its Draft Feasibility Study for the Gowanus Canal, proposing a series of options for remediating the 1.8-mile long Brooklyn Superfund site.  All of the remedial options, aside from a mandatory “no action” alternative, involve a combination of dredging the Canal’s sediment and reducing external sources of contamination, including sewage discharges from Combined Sewer Overflows (“CSOs”).

The EPA listed the Gowanus Canal on the Superfund National Priorities List in March 2010 and released a Remedial Investigation (“RI”) in early 2011 that reported elevated levels of polycyclic aromatic hydrocarbons (“PAHs”), polychlorinated biphenyls (“PCBs”) and metals.  Parts of the environmental investigation of the areas surrounding the Canal were performed by National Grid and New York City under Administrative Orders on Consent with EPA.

The Draft Feasibility Study proposes dredging, treating and disposing approximately 588,000 cubic yards from the Canal, at a projected cost of $351 million to $456 million.  EPA expects to release a Proposed Plan for its preferred remedy sometime in 2012.

In addition to assessing the dredging of the Canal, the Draft Feasibility Study states that “upland source controls,” including controls on CSOs and stormwater discharges, “need to be coordinated and implemented in concert with the selected sediment remedy[.]”   According to press reports, the New York City Department of Environmental Protection (“DEP”) expressed concerns about EPA’s CSO control plans, stating that the “primary sources [of canal contamination] are the former industrial plants on the canal, and not ongoing sewer overflows.”

EPA is accepting public comment on the Draft Feasibility Study and has tentatively scheduled a meeting for January 24, 2012, 7:00 p.m., at 330 Smith St., Brooklyn, to discuss the EPA’s plans.  For more information on the Gowanus Canal Superfund Site, contact David Yudelson or Michael Bogin.

January 9, 2012

Power of Municipalities to Limit or Ban Hydrofracking Through Zoning Front and Center Before the Legislature, DEC, and the Courts

By: Christopher Amato — Filed under: Emerging Issues, Hydraulic Fracturing & Marcellus Shale, Land Use & Development, New York Environmental Law — Posted at 9:00 am

As the controversy surrounding high-volume hydraulic fracturing, or “hydrofracking”, in New Yorkcontinues to swirl, the question of whether local government has the power to limit or ban hydrofracking through local zoning is emerging as one of the central and most fractious issues in the debate.  The New York State Assembly passed a bill in 2011 that would subject hydrofracking to local land use laws, but the New York State Senate did not.  Similar legislation is highly likely to be introduced in both houses of the Legislature in 2012.  According to a recent report by the Associated Press, one of the co-sponsors of the 2011 legislation in the Senate, Senator James Seward of Oneonta, has requested that the Commissioner of the New York State Department of Environmental Conservation, Joe Martens, address the power of local governments to regulate hydrofracking in State administrative rules the DEC has proposed adopting and is currently studying.

A number of municipalities chose not to await action by either the State Legislature or the DEC and enacted land use laws banning hydrofracking.  Litigation against two of these municipalities was commenced and both court battles are moving close to decision.  Both cases involve legal challenges to municipal zoning changes that effectively ban hydrofracking activities within municipal boundaries.  The outcome of these high profile cases will have far-reaching implications for municipal zoning inNew YorkState and for the future of hydrofracking in the state.

In Cooperstown Holstein Corporation v. Town of Middlefield (Sup. Ct. Otsego Co.), the plaintiff corporate landowner entered into two leases in 2007 granting the lessee the right to explore, develop, produce and market oil and gas resources on approximately 380 acres of plaintiff’s land.  In June 2011, the Town of Middlefield amended its zoning ordinance to provide, among other things, that “[h]eavy industry and all oil, gas or solution mining or drilling are prohibited uses” within the town.  Cooperstown Holstein filed suit in September 2011 challenging the zoning amendments on the ground that such municipal action concerning oil and gas operations is preempted by state law and asking the court to declare the amendments void.

In Anschutz Exploration Corporation v. Town of Dryden (Sup. Ct. Tompkins Co.), plaintiff driller and developer of oil and natural gas wells owns oil and gas leases covering approximately 22,000 acres in the Town of Dryden.  The leases allow Anschutz to explore for, develop and produce natural gas from the lease holdings.  In August 2011, the Town of Dryden amended its zoning ordinance to, among other things, specify that “[n]o land in the Town shall be used” for exploration or drilling for natural gas and/or petroleum, or for the transfer, storage, processing, treatment or disposal of natural gas and/or petroleum.  Anschutz filed suit in September 2011 seeking to have the zoning amendments declared void on the ground of state preemption.

Plaintiffs’ legal challenges in Cooperstown Holstein and Anschutz are primarily based on Article 23 of the Environmental Conservation Law (ECL), which sets forth the state’s policy regarding development of mineral resources and authorizes the Department of Environmental Conservation  to regulate and issue permits for oil and natural gas development.  In particular, plaintiffs rely on ECL § 23-0303(2), which provides:

“The provisions of this article shall supersede all local laws or ordinances relating to the local regulation of the oil, gas and solution mining industries; but shall not supersede local government jurisdiction over local roads or the rights of local governments under the real property tax law.”

Plaintiffs argue that this provision preempts all local regulation, including zoning, of oil and gas development except for matters relating to local roads and property taxes.  The defendant towns have responded by claiming that ECL § 23-0303(2), while limiting local regulation of oil and gas activities, does not affect or override traditional home rule powers of municipalities on zoning matters.  In support of their argument the towns cite a 1987 New York Court of Appeals decision interpreting New York’s Mined Land Reclamation Law in which the Court held that a similar provision did not prohibit municipalities from exercising their traditional zoning authority to restrict or ban mining. Frew Run Gravel Products, Inc. v. Town of Carroll, 71 N.Y.2d 126 (1987).

Oral argument in Anschutz was held in November.  The court reserved decision but is expected to issue its ruling soon.  Cooperstown Holstein was argued in December, and the court agreed to accept additional written submissions until mid-January 2012.  A ruling in that case is not expected until February at the earliest.  Whatever the initial resolution in these two closely watched cases may be, a final determination of the preemption issue will depend on the outcome of the nearly certain appeals to follow.

For more information on hydrofracking issues contact Christopher Amato or Steven Barshov.


January 4, 2012

New York Court Rejects Challenge to DEC Endangered Species Regulations

By: Christopher Amato — Filed under: Administrative Law, Emerging Issues, Endangered Species, New York Environmental Law — Posted at 1:26 pm

In a December 1, 2011 decision, the Supreme Court, Albany County, dismissed on procedural grounds two lawsuits challenging newly promulgated regulations by the New York State Department of Environmental Conservation (DEC) governing permits for projects that may affect species listed as endangered or threatened under State law (6 NYCRR Part 182).  Among other things, the new regulations set forth application requirements, review procedures and standards for “incidental take” permits that must be obtained for any activity that may result in a “take” of a listed species.  The regulations define “take” to include both direct taking by killing, capturing, harassing or similar acts, and indirect taking through the adverse modification of occupied habitat.  The two lawsuits, Association for a Better Long Island et al. v. New York State Department of Environmental Conservation and Town of Riverhead, et al. v. New York State Department of Environmental Conservation (Index No. 1268-11) were consolidated for decision.

Petitioners challenged the regulations on numerous grounds, including that in adopting the regulations, DEC had failed to seek approval from the State Environmental Board, failed to hold public hearings, and violated the State Administrative Procedures Act and the State Environmental Quality Review Act; that the regulations are ultra vires and constitute an improper delegation of a governmental function; and that petitioners’ due process rights had been violated.  DEC moved to dismiss both proceedings on the grounds that the issues raised were not ripe for review and that petitioners lacked standing.

In considering the ripeness issue, the court reviewed appellate case law establishing that ripeness turns on whether the potential harm from a challenged administrative action is sufficiently concrete.  The court noted that none of the petitioners had shown that they were undertaking or planned to undertake an activity subject to Part 182.  Although one petitioner alleged that future development of its land may require review under the new regulations, the court found that “[t]he fact that petitioners may be required, in the future, to undergo the DEC Part 182 review process is insufficient to constitute an actual or concrete injury.”  Because petitioners had failed to demonstrate any concrete injury resulting from the regulations, the court concluded that petitioners’ actions were not ripe for judicial review.

With respect to standing, petitioners argued that, as owners of land that may be utilized by endangered or threatened species, they had standing similar to that of landowners who challenge a zoning change in their zoning district.  The court rejected this argument, noting that, in contrast to a municipal zoning ordinance, Part 182 has statewide application “and does not impose any immediate and tangible change in land use.”  The court went on to conclude that petitioners had failed to establish standing because they had not shown any injury different from the public at large, and had not applied for an incidental take permit, sought a jurisdictional determination from DEC under Part 182 or been subject to an enforcement action under the regulations.

The court also rejected the claim by two petitioners that they had standing as citizen-taxpayers under State Finance Law 123-b, finding that their allegations with regard to the alleged unlawful expenditure of state funds were “nonspecific and conclusory and thus fail[ed] to support a claim of standing.”

For more information on DEC’s endangered species regulations, contact Christopher Amato.