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.

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.

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.

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.

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.

TCE was used extensively as a degreaser and a solvent, and is one of the most prevalent contaminants in the United States.  It is found in soil and groundwater at numerous Superfund sites, and its presence has led to the closure of water supply wells around the country, including on Long Island.  TCE also can vaporize into the air when it is present in soil or groundwater. In some areas, this has led to the presence of TCE in indoor air of buildings overlying TCE-contamination; so-called “vapor intrusion”.

EPA has indicated that it will take its Health Assessment into account in the following areas:

1. Establishing cleanup methods at Superfund sites where TCE has been identified as a contaminant;

2. Understanding the risk from vapor intrusion as TCE vapors move from contaminated groundwater and soil into the indoor air of overlying buildings;

3. Revising EPA’s Maximum Contaminant Level for TCE in drinking water; [and]

4. Developing appropriate regulatory standards limiting the atmospheric emissions of TCE – a hazardous air pollutant under the Clean Air Act.

It remains to be seen whether EPA’s determination will impact the judgments of state regulators, including those in New York.  For more information on issues arising at TCE-contaminated sites, contact Christine Leas or David Yudelson.

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.

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.

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.

In order to continue operating over the long term, Indian Point needs to be re-licensed by the U.S. Nuclear Regulatory Commission and needs a new water quality certificate from the New York State Department of Environment Conservation.  New York Governor Andrew Cuomo’s longstanding position is that Indian Point should be shut down because of the risks that it may pose to nearby populations, including those in New York City.

Gov. Cuomo recently signed legislation that reinstates Article X of the Public Service Law.  Article X centralizes and streamlines the siting approval process for new power plants in New York.  Part of the justification for this legislation was that streamlining siting approval would make it easier to replace Indian Point.

Entergy, the owner of Indian Point, continues its campaign to re-license the plant; notable public relations efforts include maintaining a dedicated twitter feed and reportedly attempting to hire former Mayor Rudolph Giuliani to be a spokesman for the safety of the plant.

Sive, Paget & Riesel represents the Town of Cortlandt in the ongoing state and federal proceedings relating to Indian Point’s proposed relicensing.

Mark Lebel is a Summer Associate at Sive, Paget & Riesel