November 6, 2013
On October 24, 2013, the Occupational Safety and Health Administration (“OSHA”) announced the availability of a new annotated table of Permissible Exposure Limits (“PELs”) for chemicals in the workplace, along with alternative standards that “may serve to better protect workers” than the existing federal limits. OSHA has, in the past, issued regulations establishing mandatory PELs for various chemicals, but most of these regulatory standards have not been updated since they were first issued decades ago. According to its October 24 press release, OSHA now believes that many of the regulatory PELs are out of date and do not sufficiently protect employee health.
Rather than issue new regulations, OSHA is recommending that employers consider using the alternative PELs presented in the new annotated PEL tables. These tables present, side by side, OSHA’s existing regulatory PEL, the PEL established by the California Division of Occupational Safety and Health (“Cal/OSHA“), the Recommended Exposure Limits (“RELs”) established by the National Institute for Occupational Safety and Health (“NIOSH“), and the Threshold Limit Values (“TLVs”) and Biological Exposure Indices (“BEIs”) established by the American Conference of Governmental Industrial Hygienists (“ACGIH“).
The alternative standards are generally more stringent than OSHA’s PELs. For example, the OSHA PEL for perchloroethylene (PCE) is 100 parts per million, while the Cal/OSHA PEL and the ACGIH TLV for PCE are both 25 parts per million.
Even though the alternative PELs are not federally enforceable, they may encourage state regulators to adopt the stricter exposure limits. Even without official state adoption of the stricter exposure limits, OSHA’s endorsement of those limits could encourage regulators to press for more stringent cleanup standards at contaminated sites, and could broaden the scope of conditions recognized as problematic in Phase I and Phase II due diligence reviews. OSHA’s recognition of the stricter exposure limits could also increase pressure on employers to adopt stricter voluntary standards for chemical exposure in the workplace. As recently discussed on our blog, similar consequences could follow from other agencies’ actions with respect to chemical exposure, such as the New York State Department of Health’s recently-issued guidance revising the maximum recommended concentration of PCE in indoor air to 30 mcg/m3, or 4.4 parts per billion.
OSHA’s new annotated PEL tables are accessible here. For more information, contact Christine Leas.
October 25, 2013
The New York State Department of Environmental Conservation (“NYSDEC”) announced last week that the agency has finalized its new Environmental Audit Incentive Policy. This policy, which was proposed last March, will reward businesses that implement good environmental self-management by, under certain circumstances, waiving some civil penalties for violations that are discovered while self-auditing. It will come into effect on November 18, 2013.
The new audit policy marks the first change in NYSDEC’s penalty and compliance policies in over ten years and suggests greater flexibility for regulated parties and the potential for leadership in environmental compliance from within the business community.
Many members of the regulated community already use environmental management systems and pollution prevention. The new policy supports those efforts and encourages widespread use. It also encourages new owners of regulated entities to disclose, correct, and prevent the recurrence of violations, and implement pollution prevention. It does so in several ways, including:
- Lengthening the disclosure period for new owners and provides a penalty waiver for disclosure of violations discovered within 60 days of acquiring a new property;
- Waiving a component of civil penalties for existing owners who voluntary disclose and timely correct violations;
- Providing financial and technical incentives for the use of environmental management systems and pollution prevention
The policy is not a total departure from NYSDEC enforcement norms. It states that it will not reward entities with a history of non-compliance. Certain violations are also excluded from the policy, including recurring violations and those involving criminal activity or serious harm to human health or the environment.
For more information about DEC’s Environmental Audit Incentive Policy, please contact Michael Lesser.
September 23, 2013
According to the newly-released 2013 edition of Who’s Who Legal, five Sive, Paget and Riesel attorneys have been recognized by their peers as among the world’s “foremost legal practitioners” in environmental law: Michael S. Bogin, Mark A. Chertok, Jeffrey B. Gracer, David Paget, and Daniel Riesel.
SPR has the highest number of recognized experts in environmental law of firms in New York State, and has more environmental lawyers listed than any other single-office firm in the nation. Lawyers recognized by Who’s Who Legal have been selected based upon “comprehensive, independent survey work with both general counsel and private practice lawyers worldwide.”
July 9, 2013
On June 27, 2013, the U.S. Court of Appeals for the Second Circuit upheld a lower court decision in Sahu v. Union Carbide Corporation, denying relief to a group of Indian citizens who had sued Union Carbide over water pollution allegedly stemming from operations at the infamous Bhopal plant. In 1984, the Bhopal plant was the site of a disastrous gas leak that killed thousands of local residents and led to the plant’s closure. The Sahu plaintiffs claimed that the Bhopal plant’s operations had also contaminated soil and groundwater, causing a variety of ailments in local residents.
A key issue in the case was the relationship between the Union Carbide Corporation (“UCC”) and Union Carbide India Limited (“UCIL”), an Indian subsidiary of UCC which operated the plant. The Bhopal plant was originally used only to mix certain chemical components into a pesticide. In the 1970s, UCIL, with the approval and assistance of UCC, retrofitted, or “back-integrated,” the Bhopal plant in order to manufacture the pesticide components, not just mix them. Union Carbide sold its stake in UCIL in 1994; the Sahu case was filed in 2004, although several of the Sahu plaintiffs were also plaintiffs in an earlier class action filed in 1999 and dismissed in 2004 pursuant to the statute of limitations.
The Bhopal plant’s operations generated hazardous waste, including solid waste disposed of in pits and storage tanks and wastewater pumped into lined evaporation ponds. According to the Sahu plaintiffs, the Bhopal plant’s waste seeped into the groundwater, where it contaminated local residents’ drinking water wells. The Sahu plaintiffs sought monetary damages and an injunction requiring both remediation and medical monitoring expenses from UCC.
The Sahu plaintiffs’ claim was based on New York state law, which allows suit against entities that participated in the creation or maintenance of a “nuisance,” defined as conduct or omissions that endangering the health and safety of a considerable number of people. There appeared to be little dispute that the contamination at the Bhopal plant, itself, constituted a public nuisance under New York law. Nevertheless, the Second Circuit concluded that none of the actions taken by UCC – approving the plan to back-integrate the Bhopal plant, transferring the technology used to manufacture the pesticide, providing a basic design for waste treatment at the plant, and some limited involvement in remediation of the pollution – legally amounted to creation or maintenance of the nuisance itself. The Second Circuit also upheld the lower court’s rejection of veil-piercing and agency-based arguments by the plaintiffs that UCC should be held liable for UCIL’s actions. Interestingly, both the parties to the case and the court agreed that New York law, rather than Indian law, should be applied to the case, despite the fact that the contamination in question occurred overseas.
For further information, contact Jeff Gracer or Ed Roggenkamp.
June 18, 2013
The Regional Greenhouse Gas Initiative (“RGGI”) raised a record $124.4 million in its June 5, 2013 carbon emissions auction, with the clearing price of emissions allowances reaching a three-year high of $3.21 per ton of carbon dioxide (“CO2”). The increase reflects expectations that the nine-state, cap-and-trade regime for power plant CO2 emissions will impose more stringent emissions limitations in 2014, as proposed earlier this year.
RGGI is the first market-based regulatory program in the United States aimed at reducing greenhouse gas emissions from power plants, originally established in 2005 by a Memorandum of Understanding between seven states in the Northeast and Mid-Atlantic regions. RGGI held its first carbon auction in September 2008, with emissions allowances selling for $3.07 per ton. Between 2010 and 2012, however, the combination of relatively modest emissions caps, reduced electricity demand due to the economic recession, and an increase in lower-carbon power generation spurred by low natural gas prices depressed the price of RGGI emissions allowances and raised questions about the future of the program.
In response to those trends, in February 2013 RGGI concluded a two-year program review with a series of proposed changes to the trading program, including a 45 percent reduction in the regional CO2 cap from 165 million tons in 2013 to 91 million tons in 2013. RGGI also released an Updated Model Rule implementing those proposed changes, which must be implemented by each RGGI state this year. After 2014, the RGGI cap is expected to decrease 2.5 percent each year from 2015 to 2020, requiring additional emissions reductions from regulated entities.
The next RGGI carbon emission allowance auction is schedule for September 4, 2013. For more information on RGGI and state and federal climate regulation, contact Jeffrey Gracer.
June 3, 2013
Fresh Direct, the direct delivery retail grocer, has proposed relocating its operations from Long Island City to the Harlem River Yards and occupying space originally intended for the New York Wholesale Flower Market. A coalition of community groups challenged the project’s approvals, alleging violations of the State Environmental Quality Review Act (“SEQRA”) and challenging the constitutionality of the sublease by Harlem River Yards Ventures, Inc. (“HRYV”) to Fresh Direct, as well as the overlease between HRYV and the New York State Department of Transportation (“NYSDOT”). On May 24, 2013, Bronx Supreme Court Justice Mary Ann Brigantti-Hughes dismissed the hybrid petition-complaint in its entirety and denied the challenger’s motion for leave to amend. Sive, Paget & Riesel represented HRYV in the litigation.
The decision upheld the environmental review undertaken by the lead agency, the New York City Industrial Development Agency (“NYCIDA”), and concluded that the NYCIDA had appropriately issued a negative declaration after taking the required “hard look” at the Project’s environmental impacts. In particular, the Court sustained the NYCIDA’s determination that no supplemental environmental impact statement (“SEIS”) was required because Fresh Direct’s projected traffic impacts would be no greater than those which would have been generated by the previously approved wholesale flower market. The Court also held that the extant EIS, which dated from 1993, was not required to be supplemented, in part, because the relevant traffic data had been updated in the environmental assessment relied upon by the NYCIDA. Given an increasing number of lawsuits demanding preparation of an SEIS due to the passage of time, it is noteworthy that the Court adhered to the rule that the mere passage of time alone is not a sufficient basis for securing such relief.
The constitutional attack against the overlease was dismissed as time barred. The attack on the HRYV – Fresh Direct sublease, while timely, was dismissed for failure to plead any legally cognizable claim against the over-landlord, NYSDOT. Leave to amend was denied as futile.
For further information, contact Steven Barshov, who was lead counsel for HRYV.
May 13, 2013
On May 2, 2013, the Third Department of the New York State Supreme Court, Appellate Division, upheld a municipal zoning ordinance banning “all activities related to the exploration for, and the production or storage of, natural gas and petroleum,” in the case of Norse Energy Corporation USA v. Town of Dryden.
The Town of Dryden passed the ordinance in 2011 amid concerns about the environmental impact of high volume hydraulic fracturing, or “fracking,” in the Marcellus Shale. The ordinance was challenged by Anschutz Exploration Corporation, an oil and gas exploration company that owned leases covering approximately 22,200 acres of land in the Town of Dryden. Anschutz – which later assigned its interest in the leases to Norse, the appellant in the case – argued that Dryden’s ordinance was preempted by a provision of New York’s Oil, Gas, and Solution Mining Law (the “OGSML”), which states that the OGSML supersedes “all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries . . . .” New York Environmental Conservation Law 23-0303(2). Anschutz (and later Norse) argued that this preemption clause prevents municipalities from using their zoning powers to ban fracking within their borders, while Dryden argued that the zoning provision was not the type of regulation targeted for preemption by the OGSML.
Since the OGSML does not define what it means by “regulation of the oil, gas and solution mining industries”, the court in Norse Energy Corporation examined the legislative history of the law in order to determine whether the Town’s zoning ordinance fell within the ambit of the preemption clause. The court ultimately concluded that the OGSML was aimed at “insur[ing] uniform statewide standards and procedures with respect to the technical operational activities of the oil, gas and mining industries”, and not to regulate where those activities could take place. Hence the OGSML would preempt a local law that attempted to regulate the actual operation of a natural gas well, but, the court held, it did not “usurp the authority traditionally delegated to municipalities to establish permissible and prohibited uses of land within their jurisdictions.”
This decision has important implications for fracking in New York State. According to Earthjustice, an environmental group involved in the litigation, over 150 municipalities in New York have passed zoning ordinances banning or restricting fracking within their borders; in fact, a similar ordinance passed by the town of Middlefield was upheld by the same court on the same day. Another group, FracTracker, has compiled a table of municipal zoning actions on fracking in New York state, showing 55 bans and 105 moratoria on fracking, as well as several municipalities that have passed resolutions in favor of fracking. The Norse Energy Corporation decision could encourage other municipalities to pass their own zoning resolutions restricting or banning fracking within their borders.
For more information about hydraulic fracturing and zoning matters, please contact Steve Barshov.
Older Posts »