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 petitioners in this case, Sackett v. EPA, sought judicial review after EPA issued an order applying to property that the agency had determined was within its wetlands jurisdiction.  The EPA order prevented the petitioners from building a house and also directed the petitioners to restore the land to its original condition or face heavy penalties. 

The Supreme Court granted review on two critical questions: (1) whether pre-enforcement judicial review of administrative compliance orders is available under the Administrative Procedure Act, and (2) if not, whether the unavailability of such review violates the due process clause of the Fifth Amendment.  

EPA argued that Supreme Court review was unnecessary because the four other circuit courts which have considered this same issue have all agreed that the absence of pre-enforcement review of orders under the Clean Water Act is authorized and permissible.  The Supreme Court appears to have accepted the petitioner’s view that the inability to immediately challenge EPA orders is an issue of significant nationwide importance.

It remains to be seen whether the Supreme Court’s decision in this case will be confined to matters arising under the Clean Water Act.  The Supreme Court recently declined to review a decision by the D.C. Circuit upholding the absence of pre-enforcement judicial review under the Superfund law. 

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

EPA’s nomination of the NCH Site reflects an emerging trend toward large, multiparty Superfund sites in the New York metro area.   In addition, since 2009 the rate at which EPA has been adding sites to the NPL has increased from prior years, and the recent nominations reinforce this trend.

Complex, multiparty sites were relatively common in the two decades following CERCLA’s enactment in 1980.  EPA listed many former landfills, casting a broad liability net over dozens of potentially responsible parties (PRPs) at a time, and these sites often involved tens or hundreds of millions of dollars in response costs.  However, while listings continued, by 2005 practitioners and commentators had noted a dropoff in large government-led cleanups.[1] Around this time, intense economic pressures to develop property also resulted in many voluntary cleanups by parties who had no prior connection to the contamination.  The focus of CERCLA practice shifted accordingly, from EPA-led megasites to voluntary cleanups, with courts scrutinizing the legal avenues of recovery for volunteers under the statute’s cost recovery and contribution provisions.[2]

More recently, the EPA has named several large, complex, and costly sites in the New York metropolitan area to the NPL, including the Gowanus Canal and Newtown Creek, each estimated to involve cleanups costing hundreds of millions of dollars.  EPA is also pursuing efforts to investigate and remediate portions of the Lower Passaic River, as part of the Lower Passaic River Restoration Project.  At another large cleanup site, in July 2010, 100 PRPs signed on to conduct a Remedial Investigation/Feasibility Study for the Berry’s Creek study area in Bergen County, NJ.  The first phase of dredging of the Hudson River Superfund site by General Electric began in 2009 and cost approximately $560 million.  As the above examples illustrate, EPA’s Region 2 appears increasingly focused on contaminated waterways, which by their nature involve complex and costly cleanups.

The rising number of Superfund sites is not just a local development; the number of listings is on the rise nationwide.  Between 2003 and 2008 EPA listed an average of 14.6 new sites per year.  By contrast, in the first few months of this year, 25 sites have already been proposed or listed, and if all those sites are listed average new listings per year since 2009 will jump to 21.6—50% over the previous five years.  Of course, more sites may also be listed in the remaining nine months of 2011.[3]

• Read more on Superfund/CERCLA

EPA’s GHG Reporting Program arose out of a provision in the Consolidated Appropriations Act of 2008, requiring “mandatory reporting of greenhouse gas emissions above appropriate thresholds in all sectors of the economy of the United States.”  EPA first proposed reporting requirements in March 2009 and finalized its initial regulations six months later, on October 30, 2009.  Since then, the agency has issued a series of regulations expanding and clarifying the scope of reporting for various industries and activities, such as the mandatory disclosure of reporting facilities’ co-generation power units.

The GHG Reporting Program primarily covers GHG-emitting facilities, fossil fuel suppliers, and industrial gas suppliers whose aggregate GHG emissions exceed 25,000 metric tons carbon-dioxide equivalent (CO₂e) per year, though facilities in certain emissions intensive source categories (e.g., cement manufacturing and petroleum refining) are universally covered.  EPA has projected that the rule would cover approximately 10,000 sources, which are collectively responsible for 85-90 percent of total U.S. GHG emissions.

Covered facilities were required to begin monitoring their GHG emissions on January 1, 2010, and the deadline for their first annual reports was set to be March 31, 2011.  EPA plans to make much of the data it collects publicly available, and the reported information is expected to inform recent and forthcoming efforts to regulate stationary source GHG emissions under the Clean Air Act.  Earlier this year, EPA began phasing in the first GHG permitting requirements for certain new and modified major stationary sources, and the agency is legally obligated to propose GHG New Source Performance Standards (“NSPS”) for power plants by July 26, 2011.

EPA still plans to publish data submitted under the GHG Reporting Program “later this year,” though it is not clear when facilities will have to report their 2010 emissions.  Instead, the agency promised to provide additional information on its deadline changes over the coming weeks.

EPA’s recent announcement comes on the heels of a Congressional vote which cast further uncertainty over the future of the agency’s suite of GHG regulations.  On February 18, 2011, the House of Representatives passed a seven-month budget “continuing resolution” that would largely de-fund EPA’s GHG reporting registry and prevent EPA from spending any funds to implement its stationary source GHG regulations.  The Senate has not taken up that bill, however, and the House has since passed a two week stop-gap resolution without the GHG provisions.

For more information on EPA’s GHG Reporting Rule and other climate-related initiatives, contact Jeffrey Gracer.

The guidance is directed at regulated entities and state agencies, which have been delegated authority to implement the permitting provisions of the Clean Air Act.  Next year, New York and most other states will begin to phase in GHG regulations for certain new and modified stationary sources.  The EPA plans to take over GHG permitting in those states that refuse to adopt the GHG rules or are not prepared to do so.

A “tailoring” regulation finalized by EPA last June raised the emissions threshold for the new GHG limits.  From January 2 through June 30, 2011, the regulations only cover stationary sources whose construction or modification would increase annual GHG emissions by at least 75,000 tons of carbon-dioxide equivalent and would also trigger the Clean Air Act’s Prevention of Significant Deterioration provisions for other pollutants.  Starting in July, construction or modification that increases annual GHG emissions by at least 100,000 tons of carbon-dioxide equivalent could also trigger GHG control requirements.

EPA’s new guidance adopts a flexible interpretation of the “best available control technology” requirements for GHGs.  While supporting the consideration of add-on technologies like carbon capture and sequestration systems, the agency acknowledges that such technologies present “significant logistical hurdles” that may render them inappropriate at the present time (GHG Guidance, p. 38).  Control technologies are also most commonly selected based on the permit applicant’s primary purpose or objective, so the Clean Air Act would typically not require an applicant for a coal-fired power plant to switch to a less carbon-intensive fuel (e.g. natural gas or renewable energy) (id. at 29).

Instead, sources that trigger the GHG permitting requirements are more likely to be required to implement energy efficiency improvements, which are promoted throughout EPA’s guidance.  For instance, EPA notes that “an applicant proposing to build a new facility that will generate its own energy with a boiler could also consider ways to optimize the thermal efficiency of a new heat exchanger that uses the steam from the new boiler” (id. at 32).  Other options for GHG reductions include the use of certain types of biomass or implementation of a source-wide Environmental Management System.

The new guidance may impact sources not directly covered by the new GHG controls.  With respect to permitting decisions for other pollutants, EPA instructs applicants and authorities to “consider how the control strategies under consideration may affect GHG emissions,” and certain control technologies may be rejected in part based on their projected contribution to climate change (id. at 42).

As implementation of its GHG regulations draws closer, however, EPA’s efforts are facing serious legal and legislative challenges.  Suits pending in the D.C. Circuit seek to overturn several EPA rules regulating GHGs under the Clean Air Act, including the tailoring rule.  In the Senate, meanwhile, a legislative proposal would delay EPA’s stationary source regulations for another two years.

The immediate impact of Paterson’s announcement on ongoing and future site cleanups is unclear, and DEC said that “no final decision has been made” on the issue.  The state and federal governments currently operate their own Superfund programs, created through separate statutes, and it appears that cleanup will continue as planned for sites listed exclusively under the state program.

According to the Albany Times Union, however, there are 114 federal Superfund sites in New York, with the state and federal governments often cooperating on remedial efforts.  For instance, DEC is listed as a support agency in the ongoing, federally-led Hudson River Superfund cleanup, with state officials assisting in the development and oversight of General Electric’s cleanup work.  Under Paterson’s plan, “the state will not be involved” at federally listed sites moving forward.

Because the federal Superfund law is not a formally delegated program like the Clean Air Act or Clean Water Act, Paterson’s plan should not require legislative or administrative action, but could instead be accomplished primarily through a reallocation of funds within DEC.  However, federal law requires that states fund 10% of the Environmental Protection Agency’s remedial costs for federal sites where the potentially responsible parties cannot be identified or held financially responsible.  See 42 U.S.C. § 9604(c)(3).  Those funding obligations, memorialized through State Superfund Contracts (“SSCs”), would continue despite Paterson’s planned withdrawal.  Of course, the ultimate decision on the state’s participation in the federal Superfund program will rest with the new governor-elect Andrew Cuomo.

New Hope owns and operates a renewable energy facility in the EAA, an area of the Florida Everglades that was formerly wetlands but has been hydrologically managed through pumps and drainage systems since the mid-20^th century to allow for agriculture.  New Hope’s facility, constructed on former sugarcane fields, generates electric power through the burning of non-usable portions of sugarcane as well as wood waste.  New Hope recently obtained state and local permits to construct a monofill on neighboring land, currently farmed for sugarcane, where it could place ash from the waste-burning operations, and thereby avoid trucking the ash to a distant landfill.

Existing ACOE regulations under the Clean Water Act provide that a permit is needed to conduct certain activities within wetlands.  However, exempt from the definition of wetlands are lands that do not support wetlands vegetation under normal circumstances.  The ACOE had in past rulemaking documents explained that “normal circumstances” was not to be read to include properties that had been transformed into dry land.  Also exempt from regulations are “prior converted croplands,” lands formerly wetlands but converted to agricultural use.  Rulemaking documents previously issued by the ACOE provided that a prior converted cropland could only lose such designation if wetland vegetation returned.  In 1993, the ACOE had determined that the land on which New Hope’s power facility is built was prior converted cropland. In addition, the ACOE’s Wetlands Delineation Manual provides that in order to be a regulated wetland, land must exhibit both wetlands hydrology and vegetation, unless one of three types of “atypical situations” apply: (1) an unauthorized activity resulting in the loss of one of these characteristics; (2) man-made creation of a wetland; or (3) natural events.

However, in 2009, the ACOE issued internal memoranda interpreting “normal circumstances” in hydrologically managed lands to mean “pumps off,” and stating that prior converted croplands lost such designation upon a change to non-agricultural use.  Based on these memoranda, the ACOE informed New Hope that it would likely need a permit to construct the proposed monofill.  New Hope filed a lawsuit challenging the memoranda as legislative rules that the ACOE had failed to promulgate in accordance with the APA.  The court agreed, holding that the memoranda extended the ACOE’s regulatory jurisdiction beyond that provided for in existing regulations, and diverged from the Wetlands Manual in deeming lands hydrologically managed with ACOE authorization an “atypical situation” to which the general delineation rules did not apply.  The court therefore enjoined the ACOE from applying these new rules.

New Hope Power Company was represented in the litigation by Daniel Riesel, Dan Chorost and Elizabeth Knauer of Sive, Paget & Riesel and Neal McAliley of White & Case.

On August 30, 2010, EPA’s Office of Solid Waste and Emergency Response released its Review of the Draft 2002 Subsurface Vapor Intrusion Guidance.  The Review highlights areas of existing guidance that EPA plans to update or change over the next two years.

In 2002, EPA released draft guidance for detecting and responding to vapor intrusion, caused by the migration of subsurface contamination into overlying buildings.  Vapor intrusion is most commonly found at sites with elevated levels of volatile organic compounds – including chlorinated solvents and gasoline – in the soil or groundwater.

In response to recent scientific developments, last year the EPA Inspector General recommended that the agency update and finalize its guidance, which remains in draft form.  EPA hopes to complete that process by November 2012, with the recent Review highlighting various assumptions and methodologies that are subject to change.  For instance, the agency plans to incorporate multiple lines of evidence into vapor intrusion screening determinations, expand its guidance related to non-residential and yet-to-be-constructed buildings, and provide for the collection of indoor air samples earlier in the investigation process.

As it moves forward, EPA intends to solicit public comment and hold hearings on the guidance revisions in 2011.  The agency asserts it is not required to take comment on guidance documents, but often does so for higher profile issues.

Meanwhile, New York continues its process of re-evaluating contaminated sites for vapor intrusion pathways, including many properties that had previously been remediated and de-listed.  Purchasers and lenders are also increasingly investigating vapor intrusion as part of their Phase 1 environmental site assessments.

Thus far, EPA has not announced plans to re-open Superfund sites to investigate vapor intrusion.  Where low levels of contamination are left at a remediated site, however, the Superfund statute requires a site review every five years, at which point additional work may be needed to address vapor intrusion threats based on new guidance.

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.

If promulgated as proposed, the State ESA regulations will be significantly changed.  Several sections have been added, including how DEC will list endangered and threatened species and species of special concern; requirements for recovery and restoration plans; requests for determination whether a specific action is subject to Part 182; and penalties and enforcement for violations.  The most significant changes are the new sections regarding “incidental take permits.”  The draft regulations define “incidental take” as “any taking of a species listed as endangered or threatened in Part 182.5 and otherwise prohibited by section 11-0535 of the [ECL] that is incidental to, and not the intended purpose of, an otherwise lawful activity.”  Proposed 6 N.Y.C.R.R. § 182.2(k).  “Take” or “taking” would be defined as “pursuing, shooting, hunting, killing, capturing, trapping, snaring and netting of any species listed as endangered or threatened in this Part, and all lesser acts such as disturbing, harrying or worrying.”  Id. § 182.2(y).  This proposed definition is similar to the definition of “take” under the federal ESA, where it is defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”  16 U.S.C. § 1532(19).

The proposed regulations state that “any activity that is likely to result in the take or a taking of any species listed as endangered or threatened in this Part as determined by the [DEC] . . .” must be done pursuant to an incidental take permit.  Proposed 6 N.Y.C.R..R § 182.11.  The permit application will have to include a mitigation plan and implementation agreement, an analysis of whether being issued the permit would jeopardize the continued existence of the species’ population, a description of ways to modify the project to minimize or completely avoid a take of the species, and a certification statement, in addition to describing the proposed project and its potential impacts to the listed species.

Significantly, the applicant will have to demonstrate that measures taken pursuant to the mitigation plan will result in “a net conservation benefit to the listed species,” which is defined as:

[A] successful enhancement of the species’ overall population or contribution to the recovery of the species within New York.   To be classified as a net conservation benefit, the enhancement or contribution must benefit the affected species listed as endangered or threatened in this Part or its habitat to a greater degree than if the applicant’s proposed activity were not undertaken.

Id. § 182.2(o).  Based on recently issued State ESA Permits, a net conservation benefit most likely may be demonstrated by measures to set aside critical habitat or create new habitat for the listed species, depending on the species affected.  Applicants also must include a monitoring plan and a description and guarantee of how the plan will be funded.  For example, the applicant may post a performance bond that will cover habitat monitoring costs.

An applicant’s permit application will also have to identify involved persons, the timeline for implementing the plan (which will become the permit term), specify the source of funding, and be signed by all involved persons.  DEC will issue an incidental take permit if it determines that any taking will be incidental to, and not the purpose of, the proposed activity, and there will be a net conservation benefit to the species.  The Department will base its decision “upon the best scientific and other information that is reasonably available to [DEC].”  Id. § 182.12.

These new regulations, as evidenced by the recently issued ESA permits, will add a regulatory hurdle to projects proposed in areas where there may be a take of a listed endangered or threatened species.  Developers previously addressed a project’s potential impacts to such  species during the State Environmental Quality Review Act (“SEQRA”) process.  Now, they will have to go through two processes – a SEQRA review process and a separate ESA permitting process.  This independent permitting jurisdiction means that DEC now will be a SEQRA “involved agency.”  This means DEC will have formal commenting authority, and may even claim “lead agency” status in certain matters, potentially displacing local town or village boards, and driving the entire SEQRA review process.  Regardless, unless the project’s mitigation measures result in a net conservation benefit to the listed species, as opposed to just minimizing any potential adverse impacts under SEQRA, DEC will not have legal authority to issue a State ESA Permit.

As we stated previously, when planning a project, developers should try to ensure that any potential impacts to listed species are considered and avoided in a manner consistent with DEC’s regulations.

Update (August 4, 2010):

Today, DEC published its proposed ESA regulations.  DEC will accept comments from August 4 – September 20, 2010.  Comments may be submitted via email to: Proposed Rulemaking Part 182 – Endangered and Threatened Species of Fish and Wildlife; Species of Special Concern or by mail to:

Dan Rosenblatt

New York State Department of Environmental Conservation

628 Broadway

Albany, New York 12233-4750

For additional information on submitting comments:

• Proposed ESA Regulation
• How to Comment on Fish, Wildlife, and Marine Resources Proposed Regulations
• Regulatory Impact Statement

On July 20, 2010, Attorney General Andrew Cuomo announced that his office, as well as the Pennsylvania Department of Environmental Protection (“PADEP”), had issued a notice of intent to sue the Homer City Station power plant in western Pennsylvania over Clean Air Act (“CAA”) violations that affect air quality in New York.  The Homer City Station plant is a 1,884 megawatt electric power plant located 50 miles west of Pittsburgh.  According to a Cuomo press release, the plant emits “over 100,000 tons of sulfur dioxide (SO₂), nitrogen oxides (NO_x), and particulate matter (PM) each year,” and “the plant’s annual emissions of over 100,000 tons of SO₂ alone constitut[e] one of the largest upwind sources of this kind of pollution to New York state.”  New York and PADEP allege that the plant, in violation of the CAA, failed to upgrade its pollution control technology when the facility underwent modifications in the 1980s and 1990s which increased its emissions.  The lawsuit would seek the facility’s full compliance with the Clean Air Act, which would include the adoption of new pollution control technology. 

On July 22, 2010, Cuomo announced that New York, joined by 12 other states, had filed a motion to intervene in a consolidated case challenging EPA’s recent greenhouse gas “Tailoring Rule.”  The Tailoring Rule makes regulation of carbon dioxide (CO₂) emissions practicable by setting the threshold for the applicability of the CAA’s Title V and prevention of significant deterioration (“PSD”) permit requirements at 100,000 tons per year (“tpy”) for new sources and 75,000 tpy for modified sources. 

The existing statutory threshold, at 100 tpy for certain listed sources, or 250 tpy for other sources, was designed for pollutants present in much lower ambient concentrations than CO_2.[1]  EPA had determined that, with its recent classification of CO₂ as a regulated pollutant (due to the new EPA/NHTSA automobile emissions standards), the old threshold would give rise to a 140-fold increase in PSD permits[2], a significant burden both for the newly regulated sources as well as for EPA.

Since the publication of the Tailoring Rule in the Federal Register on June 3, 2010, at least five separate challenges to the rule have been brought in the D.C. Circuit, where they have been consolidated.  On June 23, the D.C. Circuit set an initial briefing schedule for these cases, with all dispositive motions currently due by September 13, 2010.  New York State, which supports the Tailoring Rule, has been joined in the motion to intervene by California, Illinois, Iowa, Maryland, Massachusetts, Maine, New Hampshire, New Mexico, North Carolina, Oregon, Pennsylvania, and Rhode Island.

Congress’s continued inability to pass comprehensive legislation governing greenhouse gas emissions shifts the focus on regulatory efforts by EPA and the states to address conventional pollutants as well as greenhouse gas emissions.  The recent actions by New York and other states to enforce the Clean Air Act as it applies to coal fired power plants and to defend EPA’s greenhouse gas regulations represents an important, if fragmented, effort to fill the gap left by continued Congressional inaction.

[2] 75 Fed. R. 31514, 31535 (June 3, 2010).