January 5, 2010
On December 28, 2009, Mayor Michael Bloomberg signed into law four bills that together comprise New York City’s Greener, Greater Buildings Plan. The legislation, which the Mayor described as “the most significant action to date” to achieving the City’s PlaNYC emissions goals—30 percent reduction of annual greenhouse gas emissions below 2005 levels by 2030—is designed to reduce greenhouse gas emissions by 4.75 percent.
The first of the four bills, Intro 476-A, requires private buildings that exceed 50,000 square feet and City buildings that exceed 10,000 square feet to track and asses their energy and water use by utilizing an internet “benchmarking tool” developed by the federal Environmental Protection Agency. Energy and water use will be reported on an annual basis, and the City will make such information available to the public.
Intro 564-A amends the City’s administrative code to establish an energy conservation construction code for the City. The new energy code sets energy performance standards for covered residential and commercial buildings and applies to all renovations to such buildings. This legislation represents a more stringent approach than that of the New York State Energy Code, the standards of which apply to renovation projects only if such projects entail the replacement of at least fifty percent of a particular building system.
Intro 967-A amends the City’s administrative code to require the performance of energy efficiency audits and the submission of energy efficiency reports for buildings that exceed 50,000 square feet. An energy audit must identify all reasonable energy efficiency and retrofit measures that would reduce energy use and the costs and savings of such measures. Building owners must implement energy efficient maintenance practices prior to the filing of the energy efficiency report for their building. Intro 967-A also amends the New York City Charter to require City buildings to implement those retrofits that have been recommended in the buildings’ energy audits that will pay for themselves in seven years in energy savings.
The fourth bill, Intro 973, calls for the upgrade of lighting systems in commercial buildings exceeding 50,000 square feet before 2025. The legislation also requires that electrical consumption by certain commercial tenants be measured by sub-meters.
In addition to the new legislation, the City’s Greener, Greater Buildings Plan establishes a working group designed to assess green workforce training needs and a revolving loan fund to help finance energy efficient retrofits.
December 29, 2009
Last week, New York City’s Department of Environmental Protection (“DEP”) called upon New York State’s Department of Environmental Conservation (“DEC”) to rescind its Draft Supplemental Generic Environmental Impact Statement (“DSGEIS”) addressing natural gas drilling in the Marcellus Shale formation. The Marcellus Shale formation, which contains large quantities of natural gas, extends from Ohio and West Virginia through parts of Pennsylvania and into New York’s Southern Tier. Notably, the formation includes lands in the watershed that provides drinking water to New York City and, in total, approximately half of the state’s population.
DEP has taken the position that any drilling in the watershed should be banned due to risks posed to the drinking water supply by the technique used to extract gas from the underground shale, known as high-volume hydraulic fracturing. In its comments on the DSGEIS, DEP makes a number of arguments to support its contention that the DSGEIS does not adequately analyze the potential significant adverse environmental impacts of drilling in the Marcellus Shale formation, including the following:
The DSGEIS does not adequately analyze the possibility that contaminants may spill into surface waters or migrate underground into natural drinking water supplies or water supply tunnels;
- The DSGEIS’s requirements for the disclosure of the chemicals used in the hydraulic fracturing process are insufficiently protective of human health and the environment;
- The DSGEIS engages in “segmentation” in violation of the New York State Environmental Quality Review Act (“SEQRA”) by failing to adequately analyze potential significant adverse environmental impacts associated with waste disposal, surface water withdrawals, induced growth, cumulative impacts, air quality impacts, pipeline construction, and ancillary infrastructure;
- The no-drill buffer zones proposed in the DSGEIS are inadequate to protect New York City’s drinking water supply; and
- The DSGEIS does not sufficiently analyze alternatives to hydraulic fracturing, and does not at all address alternatives to natural gas development.
DEP also issued a report in conjunction with its comments.
The comment period for DEC’s DSGEIS has been extended to December 31, 2009. While New York City’s interest in upstate drilling is based primarily on potential impacts to its watershed and water supply infrastructure, upstate municipalities are likely to focus on other issues, including tax revenues, road and truck traffic impacts, noise impacts, and preemption of local regulatory authority.
December 18, 2009
In a significant decision on eligibility of property for the New York Brownfield Cleanup Program (“BCP”), on Thursday, December 17, the First Department of the New York State Supreme Court, Appellate Division, held that the Department of Environmental Conservation (“DEC”) improperly excluded three Manhattan properties from the BCP that qualified under the Program’s definition of a “brownfield site.” In so holding, the appellate court affirmed the judgment of the lower court, which had set aside the DEC’s decision to exclude the properties. East River Realty Co., LLC v. New York State Department of Environmental Conservation, — N.Y.S.2d —-, 2009 WL 48411151 (1st Dept. Dec. 17, 2009) (“ERRC“).
DEC had argued that the property in question did not meet the eligibility criteria for a “brownfield.” Generally a brownfield is defined as property whose redevelopment or reuse of may be complicated by the presence or potential presence of a contaminant. The DEC contended that the property would have been redeveloped even without participation in the BCP, rendering it ineligible for the program. In a unanimous decision, the Court rejected DEC’s argument that a property may be deemed ineligible for participation in the BCP on the ground that the property would have been remediated regardless of such participation.
In rejecting DEC’s denial of eligibility under its application of a “but for” test, the Court cited two recent brownfield cases that similarly found DEC’s reliance on extra-statutory factors arbitrary and capricious. See Destiny USA Dev., LLC v. New York State Department of Environmental Conservation, 63 A.D.3d 1568 (4th Dept. 2009); HLP Props., LLC v. New York State Department of Environmental Conservation, 21 Misc. 3d 658 (Sup. Ct. N.Y. County 2008).
ERRC reaffirms the approach taken by the courts in Destiny and HLP, where the courts have required DEC to adhere to the eligibility criteria set forth in the BCP enabling statute, and struck down DEC eligibility decisions which seek to rely on factors outside the statute.
In addition to its reversal of DEC’s eligibility determination, the ERRC decision upheld the court below’s order that DEC accept the subject properties into the BCP. The Court agreed that given the sufficiency of evidence before the lower court, remand to the agency was not required.
SPR represented ERRC in connection with its challenge to DEC’s exclusion of the subject property from the BCP. For more information, please contact Daniel Riesel, Mark Chertok, Jeff Gracer, or Michael Bogin.
November 24, 2009
The New York City Climate Change Adaptation Task Force will present key findings of its forthcoming report on climate change adaptation on December 2 in a joint presentation with the New York Academy of Sciences. The Task Force, launched in August 2008, seeks to secure the City’s critical infrastructure against sea level rise, higher temperatures and fluctuating water supplies projected to result from climate change, and is guided by the New York City Panel on Climate Change (NPCC). The report will contain a detailed plan outlining the need for early and ongoing adaptation action in the City.
The Task Force was one of the 127 initiatives proposed in PlaNYC, the City’s long-term sustainability plan, and is made up of City and State agencies, authorities, and private companies that operate, maintain, or control critical infrastructure in New York City. SPR Partner Pamela Esterman was a member of the team that assisted in drafting the legal portion of the adaptation plan for the NPCC. Next steps after the release of the plan are for the City to begin preparing for and implementing specific adaptation investments.
The December 2 event will include a full day briefing session highlighting the findings of the NPCC’s climate change adaptation plan, and is co-sponsored by the New York Academy of Sciences, Columbia’s Earth Institute, and CUNY’s Institute for Sustainable Cities. More information is available at NYAS.org (pdf).
October 5, 2009
The New York State Department of Environmental Conservation (“DEC”) has released its draft Supplemental Generic Environmental Impact Statement (“SGEIS”) for natural gas drilling activities in the Marcellus Shale formation. The draft SGEIS supplements the existing 1992 Generic Environmental Impact Statement (“GEIS”) and analyzes the range of potential significant adverse environmental impacts of shale gas development using horizontal drilling and high-volume hydraulic fracturing known as “hydrofracking”. The draft SGEIS outlines safety measures, protection standards, and mitigation strategies that operators would have to follow to obtain permits.
The City of New York has a particular interest in the SGEIS because the Marcellus Shale formation underlies a significant part of the Catskill watershed which provides much of the City’s drinking water supply. Erosion, runoff, and possible contamination of groundwater with toxic chemicals are just three of the potential dangers highlighted in a report prepared for the City by environmental consultants Hazen and Sawyer/Leggette, Brashears and Graham. This report, available here in PDF, found that in addition to construction-related surface water impacts, the presence of a wellbore can “allow previously isolated contaminants to flow into shallow groundwater or surface water.” The SGEIS would allow drilling within a few hundred feet of reservoirs, with some mitigation safety measures in place. This would include the need for a site-specific State Environmental Quality Review Act (“SEQRA”) review in certain instances. Use of hydrofracking in locations outside of New York is thought to have contributed to groundwater contamination, with further investigations underway.
DEC is accepting public comments on the SGEIS from now until November 30, 2009. Mayor Bloomberg hasn’t yet given the City’s comments, nor the City’s overall position on the State’s plan, but has said he’ll do everything in his power to keep reservoirs safe.
September 30, 2009
On Wednesday, September 29, 2009, New York City’s Office of Environmental Remediation (OER) held an informational conference call on the first set of draft regulations under the NYC Local Brownfield Cleanup Program (LBCP) and NYC Clean Property Certification Program, that were both authorized by the NYC Brownfield and Community Revitalization Act, signed into law by Mayor Bloomberg in May 2009. The LBCP and the Clean Property Certification Program are integral components of the Brownfield agenda component of the Bloomberg administration’s PlaNYC. The LBCP and Clean Property Certification draft regulations were published by OER on September 17, 2009 and will be followed in mid-November by the issuance of draft Brownfield Financial Incentive Grant regulations that will outline the city’s program for distributing $10 million in funds earmarked for support of the LBCP over three years.
The LBCP is aimed at properties that are not eligible for the New York State Brownfields Cleanup Program and that have only light to moderate contamination. Properties that the DEC have deemed “significant threat” sites, Hazardous Waste sites that DEC has classified as Class 1 and Class 2 under the NYS Environmental Conservation Law, and sites that are on the federal Superfund National Priority List (NPL) are not eligible for the city program. Cleanup criteria and citizen participation plan obligations for the City program track those of the New York State program. There are no tax credits associated with the LBCP – financial incentives under the City LBCP will be limited to grants capped at $50,000 per project. Consultants who meet the Qualified Environmental Professional criteria set forth in the draft regulations, presumptive remedies and templates for required program reports and other documentation will play an important role in the LBCP.
At present, properties that are cleaned up under the LBCP will be entitled to a release from the City for environmental conditions. During the September 29 informational call, Daniel Walsh, Director of the OER announced that discussions are underway with New York State that are expected to yield a state release for sites under the City LBCP. Walsh also announced that he hopes to obtain federal liability protection for City certified properties, but at this time no such liability protections are in place.
Two additional informational sessions will be held by the OER to discuss program procedures with consultants, property owners and other interested parties. The first of these sessions, aimed at private developers and their advisors will be held on Monday, October 5, 2009 and the second, aimed at community-based organizations, will be held on Monday, October 12.
Director Walsh strongly encouraged interested parties to comment on the program and the draft regulations. A hearing to receive comments on the draft regulations will be held on Monday, October 19, 2009 and all written comments are due by Friday, October 30.
September 24, 2009
The U.S. Environmental Protection Agency (“EPA”) is proposing to add New York City’s Newtown Creek to its National Priorities List (“NPL”) of sites with known or threatened releases of hazardous substances throughout the United States and its territories. The NPL is EPA’s list of sites that warrant further investigation and long-term cleanup. This proposed action follows closely on the heels of the well-publicized and hotly-contested proposed listing of the Gowanus Canal as an NPL site.
As it did with the Gowanus Canal, the State of New York referred Newtown Creek to EPA “due to the complex nature of the contamination along the creek.” This complexity apparently stems from the myriad types and potential sources of contamination. As EPA noted in its press release for the proposed listing, contamination found in Creek sediment and surface water samples includes pesticides, metals, PCBs, and volatile organic compounds (“VOCs”), the last category of which are potentially harmful contaminants that can easily evaporate into the air.
From the mid-19th century until World War II, Newtown Creek was a hub of a growing industrial America: more than 50 industrial facilities were located along its banks, including some of the nation’s largest oil refineries, petrochemical plants, copper production and smelting plants, fertilizer and glue factories, sawmills, and lumber and coal yards. Industrial pollution resulted from these activities and from the City’s sewers that for many decades dumped untreated into the Creek. Some factories and facilities still operate along the Creek and its tributaries, and various adjacent contaminated sites have also potentially contributed to its contamination. As a result, Newtown Creek is, according to the EPA, “badly polluted” and its listing on the NPL “will allow EPA to build on the extensive sampling of the creek that has already been done.”
EPA’s press release does not explain the need for an NPL listing, given that in 2007 New York Attorney General Andrew Cuomo commenced litigation against Exxon Mobil Corp., BP, Chevron Corp., Keyspan Corp. and Phelps Dodge Corp. for their respective roles in polluting the Creek. Also it is not clear how an NPL listing would affect any of the other three suits brought by private parties and the environmental group Riverkeeper that seek cleanup of the Creek and at least $58 billion in damages. Whether this proposed listing provokes opposition from the City of New York and others, similar to the proposed Gowanus Canal listing, will probably be known soon. It is worth noting that only several months ago, in June 2009, the City spent $100 million to purchase 30 acres of property at the mouth of Newtown Creek to construct the largest middle-income housing development in New York since the 1970s. Known as “Hunter’s Point South,” that project will include 3,000 affordable housing units, a 1,100-seat high school, 11 acres of parkland, and a network of pedestrian walkways and bike paths along what may soon be a new federal Superfund site.
No one knows yet how wide EPA intends to cast the Superfund liability net. In the event the Creek is listed, property owners along the waterway and in the immediate area may face claims relating to the current and historic uses of their property, and the extent to which these uses may have contributed to Creek contamination. These parties may be well served by making their interests known in EPA’s public comment period which accompanies any NPL listing. The public comment period for Newtown Creek began September 23, 2009, and will remain open for sixty days. Comments may be submitted via EPA’s website here.
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