May 13, 2011
Last month, New York City’s Office of Long-Term Planning and Sustainability released an update (“Update”) to PlaNYC, a plan for a “Greener, Greater New York.” The Update is the first full report since the main report was released at the project’s inception in 2007. It provides information regarding the project’s progress, obstacles and shortfalls, and current near and long-term goals.
The 2007 plan presented 127 initiatives. While 97% of these initiatives have already been launched, some have been delayed by a reduction in the City’s capital budget, and others hindered by a lack of federal or state permission, action or funding.
Key Topics of Interest: Neighborhood Development and Brownfields
According to the Update, over 87% of new housing starts since 2007 have been within a half-mile of transit. In addition, the City has created or preserved 110,000 units of affordable housing since 2004, with plans for 165,000 units by 2014. Over 30,000 of these units financed by the City will meet Enterprise Green Communities guidelines for energy efficiency and sustainability. In addition, the City continues to explore underutilized areas as potential new sites for development, including areas of Staten Island and the Bronx.
Progress on brownfields is also reported. In 2008, the City created its Office of Environmental Remediation, which facilitates the nation’s first municipally-run cleanup program (The NYC Brownfield Cleanup Program, or “NYC BCP”). It has also created the Searchable Property Environmental Electronic Database (“SPEED”), an online search engine containing environmental and historic land use information on thousands of sites throughout NYC. The City plans to establish the NYC Community Brownfield Planning District (“CBPD”) Program, under which it will create 25 new NYC Community Brownfield Planning Districts and link these grassroots efforts into larger networks. The City will continue to collaborate with the state and federal governments to improve incentives for brownfield cleanup and development; advocate at the state level for a full liability release for parties who remediate under the NYC BCP; collaborate with local entities to establish low-interest loan programs to fund cleanups; and establish an online document repository for NYC BCP project information. As noted previously on this blog, the City is continuing to encourage participation in this program.
Other Initiatives
The Update discusses the City’s progress in other environmentally-related areas, including:
- reducing greenhouse gas (GHG) emissions (the goal remains to reduce them 30% by 2030 and 80% by 2050);
- using federal stimulus money to install more than 200 electric vehicle (EV) chargers throughout the metropolitan area (including in commercial parking garages);
- retrofitting over 100 City-owned buildings to be more energy efficient;
- implementing regulations to phase out dirty heating fuels;
- planting one million trees;
- preparing for what may be inevitable results of climate change (rising temperatures and sea levels); and
- approximately 400 very specific short-term goals in a variety of areas to be completed by the end of 2013.
For more information on PlaNYC, and to view the many reports that have been published in conjunction with the program, visit New York City’s PlaNYC website.
Laura Friend is a paralegal at Sive, Paget & Riesel.
February 16, 2011
SPR attorneys recently served as environmental counsel to Acumen Capital Partners in its acquisition of the former Pfizer manufacturing facility in Brooklyn. The plant, comprising 660,000 square feet, had been vacant since Pfizer operations ceased there in 2008. Pfizer traces its corporate origins to the neighborhood, having commenced its operations there in 1849.
Plans for the property include conversion to light industrial and commercial uses. Acumen seeks to incorporate environmental sustainability into its redevelopment projects, and is known for constructing a rooftop farm comprising 43,000 square feet on another former industrial property in Long Island City. Five acres of undeveloped property remain north of the former Pfizer plant, which Pfizer has envisioned for potential development as affordable housing.
SPR represented Acumen in evaluating the environmental aspects of the purchase of the plant. For more information contact Michael Bogin or Jeff Gracer.
November 24, 2010
Earlier this month, the New York State Sea Level Rise Task Force (“Task Force”) released a draft report assessing the climate-related threat to coastal communities and recommending a series of policy changes (“Draft Report”). The state legislature commissioned the Task Force in 2007, bringing together state agency representatives, county and local government officials, and other public and private stakeholders to “protect[] New York’s remaining coastal ecosystems and natural habitats, and increas[e] coastal community resilience in the face of sea level rise.” The Draft Report is open for public comment until Dec. 12, 2010, and is scheduled to be finalized by Jan. 1, 2011.
The Draft Report contains nine findings concerning the projected impacts of sea level rise and 14 policy recommendations for state legislators and executive agencies to prepare for and protect against those risks. This post focuses on the recommendations related to the State Environmental Quality Review Act (“SEQRA”), the New York law requiring state and local governments to consider the potential significant adverse environmental impacts of their actions.
The SEQRA recommendations primarily relate to actions undertaken within newly-proposed “coastal risk management zones,” which would require an amendment to SEQRA or its implementing regulations. The Task Force suggests that such zones should be established and include those areas that FEMA has already identified as “coastal high hazard areas” or “areas of moderate wave action” on Flood Insurance Rate Maps (Draft Report, at 54).
SEQRA regulations currently categorize actions as Type I (those that presumptively have significant adverse impacts and are more likely to require preparation of a full Environmental Impact Statement), Type II (those determined not to have significant adverse impact or otherwise precluded from SEQRA review) and Unlisted. Under one proposal, the Task Force recommends that all Unlisted Actions undertaken within a coastal risk management zone be added to the Type I list (Draft Report at 61). Alternatively, the Draft Report suggests amending the criteria for environmental significance in the SEQRA regulations to expressly incorporate sea-level rise related impacts (Draft Report at 61; 6 NYCRR 617.7(c)).
Neither of these recommendations, however, addresses the technical issues of how the environmental significance of sea level rise on a proposed project should be measured. Moreover, the classification of all actions occurring within a coastal risk management zone as Type 1 may be inconsistent with existing SEQRA guidance which anticipates that the significance of sea level rise and other global warming impacts on a project would be assessed “on a case-by-case basis” — with no bright line test imposed based on project location.[1] This recommendation could also sweep in minor discretionary actions, such as wetland permits for single lots, that are not the type or scale of government action typically considered Type I.
Finally, the Task Force makes a commonsense recommendation that DEC’s short and long Environmental Assessment Forms (“EAF”) – used to determine the potential significance of an action’s environmental impacts – be revised to “require[e] an evaluation of risks to and from the project based on the risk of sea level rise and coastal hazards … and other related effects of sea level rise” (Draft Report at 61). The long EAF currently asks, “Is [the proposed] project or any portion of project located in a 100 year flood plain,” though sea level rise is projected to expand the areas of New York traditionally considered at risk of serious flooding.
For additional information on the consideration of climate-related impacts under SEQRA or the National Environmental Policy Act (“NEPA”), contact Steven Russo.
[1] DEC, Assessing Energy Use and Greenhouse Gas Emissions in Environmental Impact Statements, July 15, 2009, at 4, 5.
November 12, 2010
In anticipation of new greenhouse gas (“GHG”) restrictions set to take effect on January 2, 2011, the Environmental Protection Agency (“EPA”) released guidance on the GHG permitting determinations for new and modified power plants, industrial facilities, and other stationary sources.
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.
July 9, 2010
EPA proposed regulations under the Clean Air Act (“CAA”) for maximum achievable control technologies (“MACT”) for boilers, process heaters and solid waste incinerators on April 29. The regulations have been published in the Federal Register[1] and are available for hearing and public comment through August 3, 2010.
Boilers burn fuels including natural gas, coal, wood, and oil to produce steam for electricity or heat. Process heaters are used in industrial processes to heat raw or intermediate materials. Both are used at facilities such as refineries, chemical and manufacturing plants, and paper mills, and may also be used to provide heat for large complexes such as shopping malls or universities. Incinerators are used to burn waste for disposal, and some recover energy in the process.
EPA has proposed this regulatory action for boilers and commercial/industrial solid waste incinerators (“CISWI”) together since similar units may be considered boilers or CISWI depending on what material they burn. As part of this regulatory proposal, EPA included a new rule under the Resource Conservation and Recovery Act (“RCRA”) defining which non-hazardous secondary materials are considered fuel and which are considered solid waste. The regulatory action is the result of a 2007 court order following NRDC’s petition for review of EPA’s old standards for boiler and incinerator emissions, as well as the CISWI definitions rule.[2]
MACT standards for major source boilers and process heaters affect sources emitting greater than 10 tons per year of any one hazardous air pollutant[3] (“HAP”) or more than 25 tons per year of combined HAPs.[4] The standard for existing sources is based on the average emission limitation achieved by the best performing 12 percent of existing sources, and new sources must match the best-controlled similar source.[5]
Area sources are any stationary source of HAPs that are not major sources, and are subject to a different set of MACTs.[6] For all coal-fired boilers and process heaters, new or existing, EPA is proposing emissions limits for mercury, particulate matter (“PM”) and carbon monoxide. Biomass and oil-fired area sources would also have to meet emissions standards for PM and carbon monoxide. Both area sources and major sources would be required to conduct a one-time energy-saving assessment to analyze cost-effective energy saving practices. Additionally, the standards for both major and area sources would apply at all times, including times of malfunction, start-up and shut-down.
Small boilers and process heaters (those with a capacity of less than 10mm BTU/hr) and boilers and process heaters using natural gas or refinery gas will be subject to a less stringent work practice standards including periodic tune-ups rather than emissions limitations. EPA has proposed that these sources would have to come into compliance within three years of the final rule’s publication in the Federal Register.
CISWI are subject to more stringent emissions limits under the Proposed Rule for mercury, lead, cadmium, hydrogen chloride, PM, carbon monoxide, dioxins/furans, nitrogen oxides and sulfur dioxide. In addition, the proposed rules require that CISWI units have stacks tested and monitored along with annual inspections of emissions control devices.
States would have to submit revised State Implementation Plans (“SIPs”) within one year of the promulgation of the revised standards. Following the submission of the new SIPs, CISWI units would have a three year period to demonstrate compliance with the SIP. Alternatively, CISWI will have five years to demonstrate compliance after the final regulations are promulgated if a SIP is not submitted.
Overall, these proposed rules if adopted would constitute much more stringent regulation of boilers and incinerators because the emissions limitations apply at all times. The energy-saving assessment required for all boilers and incinerators is a facility-wide assessment, which could serve as a predecessor to energy-saving requirements for greenhouse gases as well.
As noted above, comments are being received on the proposed regulations until August 3.
Maggie Macdonald is a summer associate at Sive, Paget & Riesel, P.C.
[1] National Emission Standards for Hazardous Air Pollutants for Major Sources: Industrial, Commercial and Institutional Boilers and Process Heaters, 75 Fed. Reg. 32,006 (June 4, 2010) (to be codified at 40 C.F.R. pt. 63); National Emissions Standards for Hazardous Air Pollutants for Area Sources: Industrial, Commercial and Institutional Boilers, 75 Fed. Reg. 31,896 (June 4, 2010) (to be codified at 40 C.F.R. pt. 63); Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Commercial and Industrial Solid Waste Incineration Units, 75 Fed. Reg. 31,938 (June 4, 2010) (to be codified at 40 C.F.R. pt. 60); Identification of Non-Hazardous Secondary Materials that Are Solid Waste, 75 Fed. Reg. 31,844 (June 4, 2010) (to be codified at 40 C.F.R. pt. 241).
[2] NRDC v. EPA, 489 F.3d 1250 (D.C. Cir. 2007).
[3] Hazardous air pollutants are listed in the CAA § 112(b).
[4] CAA § 112(a)(1).
[5] Id. § 112(d)(3).
[6] Id. §§ 112(a)(2), (d)(5).
June 8, 2010
Last week, the Environmental Defense Fund (“EDF”) and Kohlberg Kravis Roberts & Co. L.P. (“KKR”), a leading private equity firm, announced that a program to implement environmental best practices at several KKR portfolio companies yielded $160 million in savings over the past two years. KKR’s Green Portfolio Program launched in 2008 in conjunction with EDF’s Green Returns program, an initiative that aims to improve both environmental and business performance in companies owned by private equity firms.
According to EDF, the first eight KKR-owned companies to enroll in the Green Portfolio Program, which include such well-known names as Sealy and HCA, collectively avoided “over $160 million in operating costs, 345,000 metric tons of CO2 emissions, 8,500 tons of paper, and 1.2 million tons of waste.”
EDF reports that the Green Portfolio Program has expanded from its initial eight companies “to include approximately 20 percent of the companies in KKR’s global private equity portfolio.” In addition to its work with KKR, EDF has also collaborated with the Carlyle Group, another major private equity firm, to create an environmental due diligence screening tool which helps to identify opportunities for environmental improvements in prospective portfolio companies.
The recent success of the Green Portfolio Program has implications beyond the involved portfolio companies and their investors at KKR. It suggests that for any business, enlightened environmental management can improve profitability. Private equity firms, in particular, are focusing on sound environmental stewardship as an essential ingredient to the success of their portfolio companies.
For more information about environmental management strategies, contact Jeffrey Gracer.
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.
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