June 23, 2010
The New York State Department of Environmental Conservation (DEC) has released a draft memorandum of agreement (MOA) between DEC and the New York City Mayor’s Office of Environmental Remediation (OER), as well as an accompanying addendum, which together provide for the two agencies’ coordinated oversight of brownfield cleanups in the five boroughs.
The MOA would assign to OER the lead role in supervision and remedy selection for certain contaminated or possibly contaminated properties within the city limits.[1] These cleanups would be conducted through the NYC Local Brownfield Cleanup Program,[2] on behalf of DEC and in accordance with DEC’s brownfield cleanup standards.[3] The MOA’s alignment of City and State cleanup programs represents a success for Mayor Bloomberg, who has sought such coordination as part of PlaNYC since the plan’s unveiling in 2007.[4]
A key element of the agreement is a declaration that DEC “does not plan or anticipate” initiating enforcement actions under state or federal Superfund statutes for sites that are remediated through the City cleanup program and pursuant to the MOA.[5]
The MOA also provides that OER may supply technical assistance to DEC for petroleum spills at sites participating in the City cleanup program, that OER must comply with certain community participation requirements, and that OER must report designated information about sites to DEC over the course of city-supervised cleanups.
DEC is accepting public comment on the proposed MOA and its addendum until Friday, July 9. DEC and OER provide additional information on the MOA and their respective brownfield cleanup programs on their websites.
Dan Mach is a summer associate at Sive, Paget & Riesel, P.C.
[1] Draft MOA, Section III.a.
[2] The Local Brownfield Cleanup Program was created by the New York City Brownfield and Community Revitalization Act, authorized by the City Council and signed by the Mayor on May 11, 2009.
[3] DEC has statutory authority to delegate its functions to local governmental entities. N.Y. Envtl. Conserv. Law § 3-0301(2)(p). Cleanup standards would be defined under the state brownfields cleanup program regulations, codified at 6 NYCRR §§ 375-1, 375-3.
[4] PlaNYC Report 46-47 (Apr. 22, 2007).
[5] Draft MOA, Section IV.a.
June 17, 2010
On June 1, Mayor Bloomberg announced the launch of four measures relating to the City Environmental Quality Review (“CEQR”) process, which requires an assessment of the potential environmental impacts of projects undertaken by the city or subject to its permitting authorities. The new reforms are intended to make CEQR more transparent and user-friendly while improving the quality of review. The four initiatives are:
- Revised Technical Manual: A revised CEQR Technical Manual, the City’s guidance for conducting CEQR analyses, has been prepared. It was released on May 17, 2010.
- New Environmental Assessment Statement (EAS) Short Form: CEQR requires the preparation of an EAS as the first step in an agency’s environmental review of a project. A new short EAS form, featuring a “check-list” format, is intended to simplify reporting for smaller projects.
- Revised EAS Full Form: In a revised full EAS form, the City has aimed to guide the applicant to focus on impacts requiring technical analysis and has clarified the form’s instructions by eliminating unnecessary text.
- CEQR Informational Services: The Mayor’s Office of Environmental Coordination has improved its website, adding among other things a centralized city-wide CEQR calendar and a one-stop CEQR forms page. The site also features a help-line for CEQR-related questions.
The new Technical Manual, which should be used for every environmental review commenced after May 17, 2010, is of critical interest to anyone undertaking a project subject to CEQR. Aside from changes to the organization of the Manual itself, the revisions expand CEQR review to cover some of the city’s most prominent environmental concerns – climate change and the water quality impacts of combined sewer overflow (CSO) events – as well as to promote the goals of Mayor Bloomberg’s citywide environmental sustainability plan, PlaNYC. These additions are coupled with efforts to simplify and focus review in a more streamlined process. These goals are reflected in two sets of changes to the CEQR process.
First, the revised Manual establishes or adjusts certain criteria for “screening analyses” for certain impact categories, by virtue of which projects that fall below certain thresholds may be determined to have no significant adverse impact on the environment without an in-depth technical analysis. These new criteria include numeric screening thresholds for direct residential and business displacement (as relates to socioeconomic impacts), a two-level screening process for transportation impacts, and step-by-step screening methods for public health and shadows impacts. The revisions also increase the threshold number of vehicle miles traveled needed to trigger a mobile air quality analysis. Overall, the new screening analyses are intended to encourage “targeted” reviews and expedite analysis of non-significant impacts.
The second set of revisions seeks to clarify, expand, and improve technical analysis of impacts requiring detailed review. Data on new legal standards have been updated, and factual background has been improved with additions such as open space maps and updated background traffic growth rates. For larger projects, the Manual now includes guidance for greenhouse gas emissions analysis and assessments of wind effects. Large city-sponsored projects will also need to be assessed for consistency with sustainability goals set forth in PlaNYC. The infrastructure analysis was expanded to include sewer system capacity between the project site and discharge point, taking into account possible CSO events. Other changes include updates that reflect minor changes in laws and codify current agency practice.
Dan Mach is a summer associate at Sive, Paget & Riesel, P.C.
June 4, 2010
The New York State Electronic Equipment Recycling and Reuse Act was signed into law by Governor Paterson on May 28, 2010. Beginning April, 2, 2011, the Act requires manufacturers to accept electronic waste for collection, handling, and recycling or reuse. Covered electronic equipment includes computers (as well as accessories such as monitors, keyboard and printers), televisions, and “small electronic equipment,” which includes portable digital music players, video recorders and video game consoles. The Act sets state-wide collection standards that slowly increase over the first three years. In addition, the Act sets manufacturer-specific acceptance standards based on their market share. The Act requires “convenient collection” from consumers, but does not include the “direct collection” requirement that was the focus of industry’s litigation concerning similar electronic waste legislation passed by the City of New York in 2008.
The Firm represented the Natural Resources Defense Council in connection with an amicus brief filed by NRDC in the litigation challenging the City law. NRDC has been a staunch supporter of producer responsibility principles. The State Act preempts the challenged City law, effectively mooting that litigation. A copy of the Act is available here.
June 1, 2010
On May 27, 2010, Mayor Bloomberg announced the release of a landmark report analyzing climate change adaptation needs and strategies in New York City. The report was compiled by the New York City Panel on Climate Change, an expert panel convened by the Mayor to provide climate change-related advice to the New York City Climate Change Adaptation Task Force. Described in a City press release as “one of the most comprehensive studies on climate change adaptation undertaken by a municipality,” the report addresses the following issues:
- Predicted changes to New York City’s climate;
- Effects of such changes on the City’s energy, transportation, water, waste, and communications infrastructure;
- Models for mitigating harm to City infrastructure;
- Impact of federal, state, and local environmental laws on current and potential climate change adaptation efforts in New York City;
- Role of the insurance industry in developing climate change adaptation strategies based on risk assessment; and
- Strategies for monitoring climate change.
Pamela Esterman, an SPR principal, was a contributing author of the report; she co-authored Section 5.3, which discusses how the National Environmental Policy Act (NEPA), the New York State Environmental Quality Review Act (SEQRA), and the New York City Environmental Quality Review (CEQR) may provide useful legal frameworks for the identification of climate change adaptation needs.
May 26, 2010
The U.S. Green Building Council (“USGBC”) recently released a certification system for green neighborhood development, known as LEED-ND.[1] LEED-ND expands the well-known LEED system for green buildings to larger-scale projects ranging in size from two buildings to multiple buildings on sites up to 320 acres. The system incorporates the principles of new urbanism, emphasizing mixed-use planning and walkable neighborhoods, and was developed in concert with the Natural Resources Defense Council and the Congress of the New Urbanism. While LEED-ND is primarily designed for neighborhood-scale projects, it may also apply to campus-style developments, such as university campuses, military bases, resort developments, religious retreat centers or summer camps.
Some notable features of the LEED-ND system include:
- Each project must have at least one certified green building;
- A project’s site must be contiguous property, but may include “conclaves of non-conforming properties” that may be exempt from LEED-ND requirements;
- Project sponsors should have control over or title to 50% or more of the project land area.
Projects are evaluated based on a number of prerequisites and credits, earned by incorporating design elements which are grouped by category, including:
- Smart location and linkage – relates to transportation, location, and land preservation;
- Neighborhood pattern & design – relates to community character, mix of uses, and walkability;
- Green infrastructure and buildings – examines building design and construction with regard to energy and water use, and sustainable best practices;
- Innovation and design process – grants credits for “exemplary and innovative” performance, beyond existing credit structures;
- Regional priority – allows credits unique to a project’s local environmental priorities.
The LEED-ND certification process takes place in three stages:
- Stage 1 – conditional approval of plans, to enable projects to build local support;
- Stage 2 – pre-certified plans, intended for projects that have received necessary permits or are under construction, and may assist in securing funding or tenants;
- Stage 3 – to be formally certified projects must have completed construction, and have achieved all prerequisites and credits sought in the first two stages of review, subject to any intervening changes in the LEED-ND system.
Generally LEED-ND applies to newly-constructed projects, but substantial renovations of 50% or more of existing square footage may allow existing neighborhoods to apply for certification.
Implementing LEED-ND may raise a series of legal issues, because the rating system operates at a scale that has traditionally been governed by zoning laws and municipal comprehensive plans. The USGBC warns that LEED-ND should not be used a substitute for comprehensive planning, but project applicants and municipalities should be aware that implementing LEED-ND may itself trigger the need for revisions to a municipal plan or zoning code. Some of the potential issues that LEED-ND implementation may face include:
- Project applicants and municipalities need to assess the consistency of existing zoning with LEED-ND requirements. Qualifying for credits based on mixed-use neighborhood character may be rendered impossible by pre-existing single-use zoning.
- Municipalities wishing to mandate compliance with LEED-ND may create the unintended consequence of rendering significant portions of land undevelopable. This could expose a government to potential litigation, including takings claims.
- Any revisions to zoning codes to enable use of LEED-ND would require environmental review as appropriate, and should be assessed for consistency with the applicable comprehensive plan for consistency. See, e.g., NY Town Law § 272-a(c)(11) (requiring that “[a]ll town land use regulations must be in accordance with a comprehensive plan adopted pursuant to this section”).
- Site-specific rezonings to enable LEED-ND—even on large parcels—may face litigation risk in the form of spot-zoning claims.
- Large-scale projects face a risk of the LEED-ND system itself changing over time. Applicants to the USGBC should carefully note that projects are not grandfathered to LEED-ND as it existed at the time of its original application. Rather, at each new stage of review a project may be required to comply with intervening changes in LEED-ND credits and prerequisites.
One recent example of municipal incorporation of LEED-ND in the planning process is the Willets Point Development Plan (the “Willets Point Plan”) proposed in northern Queens, New York, where SPR is representing the City of New York and its Economic Development Corporation (“EDC”). According to Final Generic Environmental Impact Statement published for the project, the Willets Point Plan envisions redevelopment of a current industrial area into a mixed-use neighborhood through an Urban Renewal Plan and a rezoning tailored to the Plan’s goals. The EDC, which is sponsoring the project through acquisition of the land within the proposed development district and issuance of a Request for Proposals to potential developers, has developed an illustrative site plan designed to comply with current LEED-ND requirements, and intends to require the chosen development to achieve LEED-ND certification.
[1] LEED stands for Leadership for Energy and Environmental Design.
May 11, 2010
On May 4, 2010, the Environmental Protection Agency (“EPA”) proposed to conditionally approve New York State’s revised State Implementation Plan (“SIP”), a program mandated by the federal Clean Air Act for achieving the air quality standards required by the Act. The New York Metropolitan Area, which includes New York City as well as Nassau, Suffolk, Rockland, and Westchester Counties, is presently identified by EPA as not in attainment of federal ozone standards. Consequently, New York State is required to limit the emissions of ozone precursors (i.e., volatile organic compounds and oxides of nitrogen) through the adoption of Reasonably Available Control Technology (“RACT”), applicable to stationary sources, and Reasonably Available Control Measures (“RACM”), applicable to all sources.
In August of 2009, EPA had proposed to disapprove portions of New York’s prior efforts to revise its RACT and RACM analyses for ozone. EPA had based its proposed disapproval on New York’s failure to adopt six emission control measures which it had committed to adopt. In a letter dated March 30, 2010, EPA noted that the New York State Department of Environmental Conservation (“NYSDEC”) had made little progress on its overdue regulations. EPA offered to refrain from finalizing its disapproval (which would trigger sanctions) in exchange for a final commitment that the overdue regulations be adopted by August 31, 2010. New York’s commitment would give rise to a conditional approval, which would become final if the State met its August 31 deadline. New York accepted the offer, resulting in EPA’s proposed conditional approval. The agreement requires NYSDEC to adopt the following new regulations to control the emission of ozone precursors:
- 6 N.Y.C.R.R. Part 212.10: Asphalt Paving Production
- 6 N.Y.C.R.R. Part 220: Portland Cement Plants and Glass Manufacturing
- 6 N.Y.C.R.R. Subpart 227-2: ICI Boiler RACT/HEDD
- 6 N.Y.C.R.R. Part 228: Adhesives and Sealants
- 6 N.Y.C.R.R. Part 234: Graphic Arts
- 6 N.Y.C.R.R. Part 241: Asphalt Paving.
NYSDEC has published its proposed Part 241 regulation, pertaining to asphalt paving, on its website. A more general discussion of the likely contours of the six necessary regulations is also available on the NYSDEC website.
To view the correspondence between NYSDEC and EPA which gave rise to EPA’s conditional approval, click here and here. You will be directed to a site on regulations.gov; click on the pdf icon to view the correspondence.
April 28, 2010
On Friday, April 23, the New York State Department of Environmental Conservation (“NYSDEC”) announced that it would exclude the New York City and Syracuse drinking water watersheds from its Final Supplemental Generic Environmental Impact Statement (“FSGEIS”) concerning natural gas development in the Marcellus Shale. Unless and until NYSDEC creates a separate Generic Environmental Impact Statement applicable to the New York City and Syracuse watersheds, each permit application to drill for gas in these areas must be accompanied by a site-specific Environmental Impact Statement (“EIS”). Because an EIS can be lengthy, complicated, and costly—especially if contested in litigation—DEC’s position may discourage gas companies from drilling in these watersheds; some accounts have characterized NYSDEC’s decision as a de-facto ban on drilling in these areas. However, the regulatory limbo imposed on the New York City and Syracuse watershed areas is not permanent; according to the Associated Press, “[t]he DEC and the state Health Department will work with Syracuse, New York City and communities within the watersheds to develop special restrictions for drilling companies seeking permits in the watershed.”
NYSDEC’s decision reflects the competing demands it faces with respect to natural gas development in New York state. The New York City watershed supplies drinking water to over nine million people; the Syracuse watershed supplies roughly 200,000 people. Due to the high quality of this water, both cities are exempt from federal regulations requiring drinking water filtration. Environmentalists and city officials have consistently called for a state ban on natural gas development in the watershed areas in order to protect drinking water sources. However, NYSDEC Commissioner Alexander “Pete” Grannis has expressed concern that an outright ban on drilling in these areas, much of which is privately owned, could give rise to takings claims from property owners deprived of potentially lucrative leasing opportunities.
NYSDEC’s compromise, which was announced without an official written statement, may lower the temperature of the debate surrounding gas production in the Marcellus Shale. It remains to be seen whether the Department’s present action will ultimately result in a solution that is both politically and environmentally tenable.
Older Posts »
|
| |
