October 4, 2010
Four years ago, New York’s Department of Environmental Conservation (“DEC”) and Department of Health (“DOH”) issued new guidance on soil vapor intrusion, triggering the ongoing reevaluation of over 400 contaminated sites and the reopenings of dozens for new testing or mitigation. Now, the U.S. Environmental Protection Agency (“EPA”) is taking the first steps towards revising its own vapor intrusion guidance.
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In 2002, EPA released draft guidance for detecting and responding to vapor intrusion, caused by the migration of subsurface contamination into overlying buildings.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.
August 2, 2010
In a July 21 email to wildlife stakeholders, the New York State Department of Environmental Conservation (“DEC”) announced that draft revisions to the State Endangered Species Act (“ESA”) Regulations, 6 N.Y.C.R.R. Part 182, pursuant to Article 11 of the Environmental Conservation Law (“ECL”), were ready for public review and comment and would be published in the State Register, Environmental Notice Bulletin, and on DEC’s website on August 4.
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:
July 27, 2010
Last week, air pollution litigation was a prominent theme at the office of the New York State Attorney General, which announced major developments in two separate matters.
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 (NOx), 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 CO2.[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.
[1] See CAA §§ 165 (limiting application of PSD to “major emitting facilities”), 169(1) (defining “major emitting facility” with reference to the 100/250 tpy threshold).
[2] 75 Fed. R. 31514, 31535 (June 3, 2010).
May 28, 2010
On May 3, 2010, the New York State Department of Environmental Conservation (“DEC”) released the long awaited revised DER-10: Technical Guidance for Site Investigation & Remediation. The document becomes effective June 18. DER-10 is DEC’s authoritative guidance on how to characterize the nature and extent of contamination at a site and how to design an appropriate work plan to investigate and remediate a contaminated site.
There have been significant changes to the laws governing contaminated site cleanup since DER-10 was first published in draft form in December 2002. The New York Brownfields Cleanup Program (“BCP”) has come into being, and significant changes have been made to the State Superfund statute and its implementing regulations, 6 NYCRR Part 375. DEC has revised DER-10 to reflect these changes, conform its guidance to the newer regulatory regime, and address concerns from the regulated community that elements of the 2002 draft version of DER-10 were unmanageable or confusing.
The revised DER-10 makes significant changes to chapters addressing remedy selection, site management, periodic review and closeout. The first chapter, containing general provisions including definitions, was also significantly revised. In Section 1.3, DEC added definitions and modified others to conform them to the BCP and the modified State Superfund and Part 375 language. For example, “engineering control” and “environmental easement” were added and cite to their regulatory definitions. See 6 N.Y.C.R.R. §§ 375-1.2(q), (p). Other definitions were deleted because they were never used in practice or were poorly defined. The revised DER-10 also better defines certain elements that are not included in the regulations. For example, day care facilities, which are not classified in the regulations, are classified as a restricted residential use in the guidance.
One of the major changes to DER-10 is in Section 1.5, which relaxes certain work plan and report certification requirements. Under the 2002 draft version, DER-10 provided that only a professional engineer licensed or authorized to practice in New York could certify work plans and reports. The revised 2010 version disposes with this restrictive language, and now creates a spectrum of persons who may prepare and certify work plans and reports, which includes: New York State licensed professional engineers; qualified environmental professionals; remedial parties; and site owners at the time of certification. While most plans and reports must still be certified by either a qualified environmental professional or NY licensed engineer, remedial parties and site owners may certify periodic review reports if they relate to land or groundwater use restrictions. The revised DER-10 also includes specific certification language, consistent with the BCP and Superfund Program that must be included on the title page of all submissions and must be fully executed when a document is submitted to DEC’s Division of Environmental Remediation for approval.
Chapter 4 provides the framework for remedy selection and the means and methods to identify, evaluate and select a remedy or alternative remedies to address the contamination at a site. The section provides detailed reporting and documentation requirements based on whether the site is in the Superfund program (state or federal), BCP, Environmental Restoration Program, Voluntary Cleanup Program, or petroleum spills program. It also provides DEC’s Remedial Action Objectives (“RAOs”) and preference hierarchy for removing and containing identifiable sources of contamination – removal and/or treatment at the top; treatment of source at point of exposure at the bottom. See 4.1(d).
Chapter 6 has been significantly revised; sections 6.1 (Site Management), 6.2 (Site Management Plan), and 6.3 (Periodic Review) were added. Site management, the last phase of the remedial program, commences once a Certificate of Completion (“COC”) or closure letter is issued. DER-10 describes necessary activities for proper and effective site management, including inspections by the person responsible for site management and reporting of all results in a periodic review report. The guidance requires that design, implementation, periodic review, and closeout of site management are described in a Site Management Plan (“SMP”); DEC’s website will provide a template for the SMP.
DEC also decided to rescind some TAGMs (Technical and Administrative Guidance Memoranda) developed in the 1980s and 1990s and incorporate the substance of those TAGMs into DER-10. For example, fugitive dust will no longer be monitored pursuant to a TAGM; instead, a fugitive dust and particulate monitoring program has been included as Appendix 1B in the revised DER-10. Consolidating these TAGMs into DER-10 will facilitate access to these materials for the regulated community.
DEC is planning to host a training session in Fall 2010 to answer questions and help the public understand the changes in DER-10. Notice of the meeting will be posted on DEC’s website, and DEC will solicit questions and comments prior to the meeting.
May 13, 2010
Since President Obama announced his intention to nominate Elena Kagan for the U.S. Supreme Court much attention and speculation has centered around Kagan’s opinions on various issues, including her environmental record. Some have observed that we know “nothing” about her environmental preferences except a preference for executive power, and a notable role in creating the environmental law clinic at Harvard Law School. The clinic, a greening initiative at the school, and the hiring of professor Jody Freeman, a leading environmental law scholar, suggest that Kagan supports environmental protection and climate regulation as a general matter. But it is not quite accurate to say that Kagan, as has been suggested, “hasn’t written or said much at all about climate change or the government’s role in regulating clean air and water or protecting land and species,” because her writing on administrative law provides some clues as to how she would approach EPA’s actions.
In fact, Kagan has publicly taken a significant position on administrative law that, if implemented, could have important practical implications for environmental regulation.
In a lengthy and nuanced 2001 law review article co-authored with David J. Barron,[1] the authors argue for a new rule of law defining when courts should defer to decisions made by administrative agencies. Because much of environmental law is implemented through administrative agencies, Kagan’s view, if adopted by courts, could have far reaching implications.
Kagan’s argument seeks to limit the application of a powerful doctrine of federal administrative law known as “Chevron deference”[2] to only those administrative decisions where the specific decisionmaker appointed by Congress actually makes the decision – and not to the determinations of lower-level decisionmakers in the agency acting pursuant to delegated authority. Chevron is considered a rule of judicial restraint, whereby courts will not second-guess an agency’s reasonable interpretation of ambiguities in a statute it is charged with enforcing, absent convincing circumstances. Notably, it was Justice Stevens, who Kagan would replace on the bench, who authored the opinion in the Chevron case, which is the most cited in Supreme Court history.
The approach suggested in Kagan’s article would mean that generally only the head of an administrative agency, such as the administrator of EPA, would receive Chevron deference in court for their decisions.[3] Often in current practice Congress will direct an agency administrator to make a decision, and this official will in turn delegate authority to lower officials. Decisions made pursuant to delegated authority within the agency would not receive Chevron deference under Kagan’s proposed rule. Kagan’s approach builds on prior caselaw, including United States v. Mead Corp., 533 U.S. 218 (2001), but her primary focus on the identity of the decisionmaker is a significant departure from, and extension of, these prior cases.[4]
This change, if ultimately adopted by the Supreme Court, would be significant, because, as Kagan points out, “the vast majority of agency action [other than formal rulemaking, etc.] is issued under the name of these [lower-level] officials.”[5] Under Kagan’s approach, all of these decisions would be subject to potential second-guessing in court, under a less-deferential standard known as Skidmore deference.[6]
The possible effects of Kagan’s approach could be to:
- Strengthen the presumption that a head administrator’s decision, based on legitimate exercises of their authority, is sound;[7]
- Weaken the authority of lower agency officials, holding them to a higher standard; and
- Increase the administrative workload for higher-level decisionmakers in an agency.
Limiting the application of the Chevron deference doctrine could weaken the authority of most agency administrative personnel. Lower-level decisionmakers could not, under Kagan’s rule, seek to defend their decisions by arguing they are entitled to the special deference given to statutory interpretation, without prior action from a higher-level decisionmaker. This rule would also likely have the beneficial effect of reducing the potential for ad-hoc decisionmaking at lower levels within an agency, when clear interpretations have not been provided from higher officials.
However, if Kagan’s approach were adopted by the Supreme Court, agencies may respond by making all important statutory interpretation decisions through its administrator. Thus, a new regulatory dynamic could emerge whereby an agency, in an effort to secure judicial deference for its top priorities, routes these decisions through their primary decisionmaker for substantive review and adoption.[8]
While much has been said about the lack of a paper trail to discern the type of justice that Kagan would be, she plainly has taken a clear and firm position on a seminal administrative law principle, and suggests a potential to reexamine doctrines of judicial deference to regulation, including environmental regulation. Of course, her article was written from the perspective of a law professor, not a judge, so Kagan’s overall approach to respecting Supreme Court precedent would also play a prominent role in deciding whether she would press her suggested approach once she ascends to the bench.
[1] David J. Barron and Elena Kagan, Chevron’s Nondelegation Doctrine, The Supreme Court Review, Vol. 2001, at 201-265 (2001) (“Barron & Kagan”).
[2] Named after the Supreme Court case of Chevron U.S.A. v. NRDC, 467 U.S. 837 (1984) (“Chevron“).
[3] Congress could name another agency official, but in practice generally agency heads, or the President, are named by statute as the relevant decisionmaker.
[4] According to Kagan, the court in Mead looked to how “general” and “formal” an administrative decision is to evaluate whether Chevron may apply. Barron & Kagan at 234. Kagan argues that “accountable and disciplined policymaking” may be better promoted by focusing on who makes the decision—i.e., the statutory delegee named by Congress—as opposed to how it is made. Id. at 204, 238.
[5] Barron & Kagan at 237.
[6] Barron & Kagan at 236.
[7] Barron & Kagan at 263 (“[a]n agency should not have to conform its decision making to some idealized notion of either general lawmaking or courtlike formality to receive deference”).
[8] Barron & Kagan at 262.
On May 4, 2010, following significant revisions (reportedly at the behest of the Office of Management and Budget), the Environmental Protection Agency (“EPA”) released proposed regulations governing management of coal combustion residuals generated by coal fired power plants, commonly known as coal ash (the “Proposed Rule”). In Fall 2009, EPA indicated it would release the Proposed Rule by the end of 2009.
EPA has proposed two options for managing coal ash.
The first option would regulate coal ash as special waste under the Resource Conservation and Recovery Act’s (“RCRA”) hazardous waste provisions. Under this option, a comprehensive program of federally enforceable requirements for management and disposal of coal ash would be created. Measures would be adopted to phase out the wet handling of coal ash. Additionally, states would be authorized to develop a permit program or use the federally-established program. This option would include storage, manifest, transport, and disposal requirements for coal ash as well as mechanisms for corrective action and financial responsibility. Failure to comply would be subject to direct federal enforcement.
The second option would regulate disposal of coal ash under RCRA’s non-hazardous waste provisions. EPA would set performance standards for waste management facilities that handle coal ash. States that adopt their own coal ash management programs would be responsible for enforcing the rule and would have the option to establish a permit program. Surface impoundments built after the rule goes into effect would be required to have composite liners, but there will be no land disposal restrictions. Although citizen suits could be filed for failure to comply with the rule, this option does not provide for direct federal enforcement. This option also does not provide for any financial assurances, but EPA plans to develop a proposed regulation pursuant to the financial assurance requirements in Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) § 108(b) that would cover coal ash facilities. This option would go into effect earlier than the first option.
Under both options, landfills that accept coal ash will be required to conduct groundwater monitoring, even if they were built before the Proposed Rule is finalized. Landfills built after the rule goes into effect would also have to install liners. The Proposed Rule does not address depositing coal ash as backfill in mines, known as minefills. Nor does it affect the current status of coal ash that is beneficially reused. The Bevill exemption, which lists specific wastes that are exempt from regulation under RCRA, includes the beneficial reuse of coal ash (e.g., fly ash in cement and concrete). However, EPA is soliciting comments regarding the uses of coal ash in unencapsulated form, such as in road fill and agricultural applications. EPA is also soliciting comments on how to define “beneficial use.” Based on the comments submitted, EPA could determine that unencapsulated uses should be regulated or could redefine which “beneficial uses” remain exempt.
Once the proposed rule is published in the Federal Register, the public will have 90 days to submit comments.
For more information about the Proposed Rule and how to submit comments visit EPA’s website.
April 23, 2010
In what appears to be a significant emerging trend, the New York State Department of Environmental Conservation (“DEC”) is beginning to exercise its long-dormant authority to regulate endangered and threatened species and their habitat. This trend could have a significant impact on developments proposed in or near these species’ habitat.
The DEC recently issued four licenses, or New York State Endangered Species Act permits (“ESA Permits”) under Article 11 of the Environmental Conservation Law (“ECL”), a number which is notable for far exceeding past issuances. The permits were issued for the construction of a wind power plant, a retail facility, a road project, and a residential development. These ESA Permits authorize the “taking” of endangered and/or threatened species, which includes the killing, capturing, disturbing and worrying the species, or modification of its habitat. ECL § 11-0535; see also State v. Sour Mt. Realty, Inc., 714 N.Y.S.2d 78 (2d Dept. 2000); State v. White Oak Co., 787 N.Y.S.2d 333 (2d Dept. 2004).
To receive the ESA Permit, the applicants had to demonstrate a net conservation benefit to the identified species once all mitigation measures and permit conditions are complete. Although DEC determines necessary mitigation measures on a case-by-case basis depending upon the type of species involved, DEC required similar mitigation conditions for each of the ESA Permits. Conditions included permanently protecting land by transferring title or a conservation easement, and securing a performance bond before commencing any activities on site to cover the estimated costs of habitat restoration and mitigation. Setting aside crucial habitat or new habitat that did not exist may become a standard permit requirement.
Under Governor Pataki, the DEC did not exercise its endangered species authority pursuant to Article 11. Instead, endangered and threatened species issues were dealt with pursuant to the State Environmental Quality Review Act (“SEQRA”). Under the new administration, and Commissioner Pete Grannis, DEC has notably begun to exercise its Article 11 authority. Therefore, projects that might “take” a listed species and cannot be modified to avoid the taking entirely will have to obtain an ESA Permit.
Although developers have always had to consider the impacts of a proposed project on listed species under SEQRA, if the mitigation measures minimized the adverse impacts, then the requirements of SEQRA were usually satisfied and the review ended, even if the project resulted in alteration or destruction of the species’ habitat. Now, it appears that even when the project satisfies SEQRA requirements, if the project’s impacts alter or destroy listed species’ habitat or “take” a listed species, the developer must apply for an ESA Permit. To receive the permit, the developer must demonstrate a “net conservation benefit” from the proposed mitigation measures, which may include setting aside crucial habitat or creating new habitat for the listed species. Therefore, when planning a project, the developer should try to ensure that impacts to listed species and their habitat are considered and avoided entirely. Otherwise, the developer will need an ESA Permit.
DEC has sent draft regulations to the Governor’s office for approval, a required step before releasing them for public comment. The draft regulations are expected in the near future. The content of the draft regulations are unknown, but based on the ESA Permits issued, they may likely require mitigation measures like permanent protection and monitoring of habitat, and securing a performance bond to ensure that the mitigation measures are implemented.
DEC’s Article 11 enforcement authority was made clear in the recent ESA Permits and DEC’s recent letter (pdf) denying Entergy’s application for a Water Quality Certificate pursuant to Section 401 of the Clean Water Act for Indian Point Units 2 and 3 (“Indian Point”) in Buchanan, New York. Sampling data from 1975-1990 determined that Indian Point’s operations harmed (i.e., resulted in a “taking” of) shortnose sturgeon, a New York listed endangered species, and Atlantic sturgeon, a federally protected species, by impinging the sturgeon on and entraining them in the cooling water intake structures. Although recent sampling data was not available, DEC determined that based on prior studies and Indian Point’s unauthorized “take” of the listed species, the relicensing of Indian Point “would continue to cause mortality to the sturgeon species” and therefore was not in compliance with Article 11.
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