November 29, 2012
*** Updated 11/30/12 with link to revised text of proposed hydrofracking rules ***
This week, the New York State Department of Environmental Conservation (“DEC”) formally sought a 90-day extension of its rule making process for its proposed regulations governing the natural gas drilling technique of high-volume hydraulic fracturing (“hydrofracking” or “fracking”).
The 90-day continuation includes a new 30-day public comment period on the revised text of the proposed rules, which were posted to DEC’s web site. DEC will accept comments on the revised draft regulations from December 12, 2012 through January 11, 2013. The 90-day rule making extension will delay any decisions on new hydrofracking permits until 2013 or later.
Governor Cuomo and DEC cited the New York State Department of Health’s (“DOH”) ongoing review of the health impacts of the proposed regulations as the reason for the delay in adopting the rules.
Under Section 202 of the State Administrative Procedures Act (“SAPA”), DEC has one year from the date of the last public hearing announced in its notice of rule making to adopt the proposed rule. That deadline was set to expire this week. In order to keep the rule making process from expiring (and thus avoid having to start the rule making process over again), the agency submitted a notice of revised rule making to the New York Department of State (“DOS”).
The notice of revised rule making involves more than just a simple request for an extension. SAPA requires the notice to include the revised text of the rule, as well as an assessment by DEC of all public comments received on the proposed rule (DEC received more than 66,000 comments on the 2011 draft regulations). DEC is also required to provide an analysis of the issues raised by the comments and significant alternatives suggested therein.
It remains to be seen whether additional regulatory changes may yet result from the pending DOH review. Substantial revisions could require another notice of revised rule making and comment period, pushing the date for final regulations further into 2013.
For more information on DEC’s proposed regulations and other hydrofracking issues, contact Chris Amato or Steven Barshov.
November 21, 2012
On November 20, 2012, a New York appellate court unanimously affirmed the environmental review for the proposed redevelopment of the former Domino Sugar refinery in Williamsburg, Brooklyn, clearing the way for a new mixed-use development on the vacant East River site. Sive, Paget & Riesel successfully represented the project applicant in both the lower court proceedings and the appeal, and in the environmental review process.
The Appellate Division, First Department rejected arguments that the New York City Planning Commission and City Council had violated the State Environmental Quality Review Act (“SEQRA”) by failing to take a hard look at the Project’s environmental impacts. While the challengers had claimed that the Project site’s rezoning and other approvals were based upon a false promise to provide 30 percent affordable housing, the Court found that “the fact that respondent developer’s 30% affordable housing figure was a mere goal, rather than a binding commitment, was adequately disclosed to the public.” It further held that “the Project minimized or avoided adverse environment impacts to the greatest extent possible,” and that the government approvals were justified based upon the Project’s broad range of objectives and goals, including the creation of “physical and visual access to the waterfront,” “publicly accessible open space” and an “economically integrated mixed of residential, retail/commercial, and community facility uses with a high quality design.”
For more information on the Court’s decision, contact David Paget or Jennifer Coghlan.
November 20, 2012
A recent review of the New York State Department of Environmental Conservation (“DEC”) Spills Database by the Long Island-based environmental consulting firm Roux Associates, Inc. shows that DEC has been inundated with nearly 1,700 new spills of chemicals, petroleum and other hazardous materials in the few weeks since Tropical Storm Sandy hit the region. Typically, there would only be a few dozen spills over such a period.
Below is a summary of the number of new spills opened by DEC in Region 1 and Regions 2 since the storm through November 12th:
- Kings County– 91 Spills
- New York County– 75 Spills
- Queens County– 135 Spills
- Richmond County– 80 Spills
- Nassau County– 805 Spills
- Suffolk County– 504 Spills
The Spills database shows that the vast majority of these reported spills are small residential releases. There are far fewer industrial or commercial reports, but they appear to involve more serious releases—with larger quantities released and greater impacts on soil and/or groundwater. How DEC will ultimately manage all of these spill remains to be seen.
Sive, Paget & Riesel has decades of experience managing spill reporting and remediation. Please contact us if you need help understanding your obligations in a spill, have been impacted by a spill, or need assistance with a spill response.
November 13, 2012
New York’s highest court recently upheld lower court decisions requiring the New York City School Construction Authority (“SCA”), as lead agency under the New York State Environmental Quality Review Act (“SEQRA”), to consider in the environmental review process the long-term maintenance and monitoring requirements designed to assure the continued effectiveness of the remediation of hazardous substances.
The remediated site at issue in the case, Bronx Committee for Toxic-Free Schools v. New York City School Construction Authority, was a former railyard in the Mott Haven section of the Bronx, on which SCA built a campus with four public schools that opened in 2010. The remedial measures included several engineering controls, such as vapor barriers under buildings and a hydraulic barrier to prevent contaminated groundwater from re-entering the site. The Environmental Impact Statement (“EIS”) incorporated the Remedial Action Work Plan (“RAWP”), which described the proposed cleanup, but neither document described the plans for long-term maintenance and monitoring. Those measures were later documented in the project’s Site Management Plan, which is required under the New York Brownfield Cleanup Program (“BCP”) to set forth any long-term program designed to ensure that a remediated site continues to be protective of public health and the environment. The lower court directed SCA to prepare a Supplemental EIS to examine those requirements, and the First Department affirmed.
In upholding these decisions, the Court of Appeals acknowledged the “broad discretion” afforded lead agencies in determining “what to include and what to omit” in an EIS, and the level of detail in an EIS, but found that a Supplemental EIS must be prepared because SCA had not disputed that the description of the long-term maintenance and monitoring requirements was “essential to an understanding of the environmental impacts of the Authority’s project” and “too important not to be described in an EIS.” Nor had SCA disputed that the measures were “‘essential’ to protecting the site’s occupants from dangerous contaminants.”
In response to arguments that the details of the maintenance and monitoring program could not reasonably be determined until the cleanup was completed, the Court noted that this was not a case where there was a dispute over whether post-EIS events were significant enough to warrant a supplement. Rather, it found that “[w]here important decisions about mitigation can only be made after the initial remedial measures are complete, a supplemental EIS may be called for, as it is here.” Thus, given SCA’s implicit acknowledgement of the importance of the long-term maintenance and monitoring measures, the EIS had not met SEQRA’s “hard look” standard, which requires that the environmental review identify and assess relevant areas of environmental concern.
Although it may not be possible to detail all of the long-term maintenance and monitoring requirements applicable to a given remediation in an EIS or in an Environmental Assessment Form (“EAF”) (or Environmental Assessment Statement (“EAS”) for New York City’s Environmental Quality Review), the New York State Department of Environmental Conservation’s BCP regulations do require that a description of such measures be included in the RAWP. Thus, in the case of Brownfield sites, it should be possible to include sufficient information to satisfy SEQRA’s “hard look” requirement in an EIS (or an EAF or EAS).
However, this requirement may be more problematic for sites undergoing review under SEQRA at which it is impracticable to conduct investigations necessary to fully characterize a site and identify the necessary long-term maintenance and monitoring measures. For such projects, it will be important to describe such measures to the fullest extent practicable.
For more information on how the Toxic-Free Schools decision may affect your project, please contact Mark Chertok.
November 11, 2012
In the wake of Hurricane Sandy, the New York State Department of Environmental Conservation (“DEC”) has issued a Hazardous Waste Generator Order that explains how to manage hazardous waste generated as a result of the storm in the affected counties of Suffolk, Nassau, New York, Kings, Queens, Bronx, Richmond, Westchester, Rockland, and Orange.
Hazardous waste generators who follow the terms of the Order will be exempt from the otherwise hefty hazardous waste generator fees and taxes under Articles 27 and 72 of New York’s Environmental Conservation Law. The Order provides expedited procedures for creating a hazardous waste consolidation area and requires that “Hurricane Sandy Waste” be written across the top of applicable waste manifests. Generators who do not have an EPA identification number or who create an off-site consolidation area must obtain a temporary EPA identification number.
The Order is in effect from November 6, 2012 until December 6, 2012.
For more information about managing cleanups in the aftermath of Hurricane Sandy, please contact Michael Bogin or David Yudelson.
November 5, 2012
We at Sive, Paget & Riesel wish you the best in dealing with the aftermath of Sandy. In the event you need assistance, our staff has significant experience in the following areas:
- Analyzing insurance policies to determine coverage and assisting in the documentation, presentation and resolution and potential litigation of insurance claims;
- Analyzing commercial and residential leases regarding rights of termination due to casualty, rent abatements and the division of restoration obligations;
- Coordinating environmental, structural, electrical, plumbing and mechanical engineering investigations and reports for purposes of safety, habitability, restoration and cost recovery;
- Providing contract review and due diligence assistance prior to hiring response contractors, including environmental testing proposals, environmental remediation contractors, demolition companies, waste disposal, and restoration contractors;
- Assistance with the submission of applications for federal, state and local grants and loans;
- Coordinating environmental remediation for issues including mold, water damage, petroleum, asbestos and sanitary waste cleanups;
- Permitting and approvals for rebuilding buildings, shoreline stabilization and dock/wharf facilities;
- Overseeing the due diligence investigation of alternative or temporary facilities;
- Providing referrals for experienced environmental testing companies, remediation contractors, waste disposal contractors and restoration contractors with which we have successfully worked in the past.
We are immediately available to discuss the foregoing at no charge. If you have questions or believe we can be of assistance please do not hesitate to call David Yudelson at (917)295-6449 or Michael Bogin at (917) 626-1656.
From the website of the New York State Department of Environmental Conservation:
Permitting requirements for businesses and homeowners seeking to discharge water from flooded properties are temporarily suspended. If water contains significant recoverable material, such as fuel oil floating on water that could cause significant further damage to the structure if not removed first or significant environmental damage, all reasonable measures should be taken to collect and properly dispose of the material prior to pumping out the structure.
The suspension of permitting requirements remains in effect until November 6, 2012, and applies only to flood-related discharges where an expedited response is needed.
Where a significant spill has occurred, the owner or operator must report the spill to DEC’s Spill Hotline (1-800-457-7362) and use environmental contractors to handle, treat and dispose of such substances properly prior to discharging to the City sewer system. Contractors who collect and dispose of released petroleum or hazardous substances must comply with all requirements for the handling, treatment and disposal of the collected materials. DEC sent a letter to NYC Department of Environmental Protection (PDF) outlining the permit requirement suspension.
Additional guidance on the above requirements can be found at the following weblinks:
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