September 8, 2011
The recent devastating impacts of Tropical Storm Irene and the solemn remembrance of 9/11 make a review of New York’s emergency environmental procedures both timely and relevant. Such emergencies affect existing environmental permits and create new unanticipated environmental problems that may require exceptions and waivers to the environmental status quo.
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.
September 7, 2011
On Friday, September 2, 2011, the White House directed the Environmental Protection Agency (“EPA”) to withdraw and reconsider a proposal to strengthen National Ambient Air Quality Standards (“NAAQS”) for ground-level ozone, the primary ingredient in smog. The announcement marked the first time that the Obama Administration formally returned one of its own agencies’ proposals, and it could indicate heightened executive scrutiny of forthcoming rules’ economic impacts.
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.
August 18, 2011
The New York City Department of Environmental Protection (“NYCDEP”) recently released a report discussing the economic and environmental effects of a hypothetical retirement of Indian Point Energy Center (“Indian Point”), which comprises two large nuclear generation units in Cortlandt, New York in the Lower Hudson Valley. The report discusses some of the negative implications of shutting down such a major generator of electricity. Nuclear power results in no air pollution and has low marginal costs to generate electricity. As a result, the report concludes that most potential replacements for Indian Point would result in higher electricity prices and more air pollution. The report estimates that retiring Indian Point could increase costs to consumers across New York State by up to 10%, or over $1 billion dollars per year, starting in 2016. The report also found that retiring Indian Point could result in substantial increases in local air pollutants and greenhouse gases.
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
August 8, 2011
With the Environmental Protection Agency (“EPA”) largely barred from regulating hydraulic fracturing (“fracking”) under the Safe Drinking Water Act, regulatory proponents have turned their attention to alternate means of controlling the industry’s environmental impacts. Last month, EPA proposed the first federal rules limiting air emissions from fracking operations, and on August 4, a coalition of environmental groups petitioned EPA to require the testing and disclosure of fracking fluids under the Toxic Substances Control Act (“TSCA”). Others have turned to the courts to compel greater environmental review of fracking’s impacts, with a new suit filed in the United States District Court for the Eastern District of New York late last week.
On July 28, 2011, EPA proposed a suite of new Clean Air Act rules governing the emission of volatile organic compounds (“VOCs”), sulfur dioxide, and air toxics from oil and gas extraction and transmission activities, including the first federal air standards for hydraulically fractured wells. During fracking, VOC emissions are often elevated during “flowback” periods, when fluids injected into wells return to the surface carrying contaminants that can evaporate into the air. EPA’s proposed rules would require wells to separate and capture natural gas and hydrocarbons during flowback, reducing emissions of VOCs by an estimated 95 percent.
Additional EPA rules may be forthcoming in response to a petition filed last week by Earthjustice on behalf of over 100 non-profit groups. The petition asks EPA to issue regulations under TSCA requiring manufacturers and processors of “chemical substances and mixtures used in oil and gas exploration or production,” including fracking fluids, to conduct testing on the toxicity and environmental and health impacts of their products and disclose the results to EPA. If the petition is denied, Earthjustice has suggested it would challenge EPA’s determination in court.
Fracking regulation is also moving forward on the state and regional level, with the Delaware River Basin Commission (“DRBC”) – a regional body consisting of four states and the Army Corps of Engineers – proposing rules governing hydraulic fracturing siting and operations in New York, New Jersey, Pennsylvania, and Delaware. New York Attorney General Eric Schneiderman has filed suit in federal court seeking to enjoin the finalization of those rules pending the preparation of an Environmental Impact Statement under the National Environmental Policy Act (“NEPA”). On August 4, the Delaware Riverkeeper Network, Hudson Riverkeeper, and National Parks Conservation Association brought a similar suit in the same court. Unlike New York, however, the environmental groups named DRBC as a defendant.
The U.S. Department of Justice (“DOJ”), on behalf the Army Corps of Engineers and other federal defendants, recently announced its plans to move to dismiss New York’s lawsuit on sovereign immunity, standing and ripeness grounds. There are also questions as to whether the proposal of a regional body is a “major federal action” governed by NEPA – an argument that DOJ reserved the right to raise at a later date as an additional ground for dismissal. A pre-motion conference on DOJ’s request for dismiss is scheduled for Wednesday, August 10.
August 4, 2011
On July 29, 2011, Governor Cuomo signed a law authorizing local governments to create not-for-profit corporations to act as land banks with respect to vacant, abandoned, or tax-foreclosed property. These non-profit land banks will have the ability to sell property free and clear of prior tax liens. However, the new law does not insulate these newly created non-profits from liability for site contamination.
Newly created land banks will need to exercise caution in acquiring abandoned and foreclosed property, which are often contaminated from historic industrial activity. Such contamination may have been a factor contributing to the abandonment of the property, particularly in economically depressed areas. Federal and state laws can impose strict liability on owners of contaminated property to address the actual or potential release of hazardous substances. Although these laws provide a defense to government entities acquiring property involuntarily or through eminent domain, such defenses do not appear to be available to a land bank. Land banks would be well advised to consider this risk and to protect themselves by conducting due diligence investigations before taking title (in order to qualify for certain statutory defenses to liability) or by delaying taking title until a developer or other entity has been identified with the financial capacity and willingness to assume environment liability for past contamination.
July 22, 2011
A recent federal lawsuit in upstate New York signals increased litigation over vapor intrusion claims, which are already subject to regulatory attention and frequent re-openers of prior cleanups by the New York State Department of Environmental Conservation (“DEC”).
In one of the first cases of its kind in New York, on June 24, 2011, CAEUSA Inc. (“CAE”), a supplier of flight simulators and related products, filed a federal lawsuit against neighboring property owners, seeking $2.1 million in response costs and damages for soil vapor contamination allegedly arising from releases of solvents on neighboring properties. As a result of soil vapor issues in Endicott, NY and elsewhere, DEC is reviewing, and in many cases, reopening, prior remediation approvals to address soil vapor contamination.
CAE asserts that, in 1998, it expended approximately $4 million on remediation of soil contaminated with chlorinated solvents at its property near Binghamton, New York pursuant to consent orders with DEC. CAE later sold that property but retained contractual responsibility for pre-closing contamination. In 2003, DEC began an extensive investigation of the intrusion of soil gas and soil vapor into properties neighboring the former CAE site. Based on that investigation, DEC installed more than 120 vapor mitigation systems in the neighboring properties.
According to the complaint, DEC is seeking $2.1 million from CAE for its costs in investigating the soil vapor contamination and installing the vapor mitigation systems. In its complaint, CAE alleges that necessary remediation of its property was conducted and that its site is not contributing to the soil vapor contamination of the neighboring properties, where vapor mitigation systems were installed as a result of DEC investigation. CAE alleges that current and past owners and operators of manufacturing and commercial properties neighboring the former CAE site are responsible for the off-site soil vapor conditions.
CAE’s complaint presents data showing that soil vapor associated with the plaintiff’s property is minimal in contrast with very high levels at and emanating from the defendants’ properties. It also presents detailed allegations de-linking the soil vapor contamination from any residual groundwater contamination that could be connected to CAE. CAE’s lawsuit signals that courts will now be forced to grapple with the complicated issues faced by DEC with respect to soil vapor intrusion: the complexities of site data, the evidence needed to pursue parties for vapor intrusion, and the reopening of cleanups previously approved and closed by the agency.
Sive, Paget & Riesel represents a number of property owners on vapor-intrusion evaluations and re-openings. For more information on this topic, please contact Christine Leas, Jeffrey Gracer or Michael Bogin.
July 1, 2011
On July 1, the New York State Department of Environmental Conservation (“DEC”) issued a revised Draft Supplemental Generic Environmental Impact Statement (“SGEIS”) recommending that high-volume hydraulic fracturing (“fracking”) be banned in the New York City and Syracuse drinking water watersheds but that fracking be allowed to proceed, subject to strict regulation, on private property. Fracking uses high-pressured water, combined with chemicals, to release natural gas present underground in shale formations.
The revised Draft SGEIS contains recommendations to mitigate the environmental effects of fracking. These recommendations, which would make approximately 85 percent of the Marcellus Shale accessible to natural gas production, include the following:
- Fracking would be prohibited in the New York City and Syracuse watersheds, including a buffer zone;
- Drilling would be prohibited within primary aquifers and within 500 feet of their boundaries;
- Surface drilling would be prohibited on state-owned land, including parks, forest areas and wildlife management areas;
- Fracking will be permitted on privately held lands under “rigorous and effective controls”; and
- DEC will issue regulations to codify these recommendations.
DEC’s present recommendations depart from those contained in an earlier 2009 Draft SGEIS, which would have permitted drilling in the New York City and Syracuse drinking water watersheds, and which would have allowed surface drilling for high-volume fracking in primary aquifers and on public forests, wildlife areas, and parkland. In December 2010, then-Governor David Paterson ordered DEC to revise the initial Draft, taking into consideration the voluminous public comments that had been submitted. This order was understood to impose a de facto moratorium on new permits until the issuance of the revised draft.
The import of DEC’s present findings to stakeholders such as upstate residents, downstate residents, municipalities, and industry cannot be fully understood without a thorough review of the revised Draft SGEIS, which is over 900 pages long. As with many comprehensive studies, the devil will be in the details. The revised Draft SGEIS will be posted on DEC’s website on July 8, 2011, and will be open for public comment for 60 days beginning in August. It is expected that another round of extensive public comments will follow.
As of July 1, DEC has posted an Executive Summary of the revised Draft SGEIS and other related information online. This website should contain the entire revised Draft SGEIS by July 8.
Click here for more information about hydraulic fracturing in New York.
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