The Town of Dryden passed the ordinance in 2011 amid concerns about the environmental impact of high volume hydraulic fracturing, or “fracking,” in the Marcellus Shale.  The ordinance was challenged by Anschutz Exploration Corporation, an oil and gas exploration company that owned leases covering approximately 22,200 acres of land in the Town of Dryden.  Anschutz – which later assigned its interest in the leases to Norse, the appellant in the case – argued that Dryden’s ordinance was preempted by a provision of New York’s Oil, Gas, and Solution Mining Law (the “OGSML”), which states that the OGSML supersedes “all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries . . . .” New York Environmental Conservation Law 23-0303(2).  Anschutz (and later Norse) argued that this preemption clause prevents municipalities from using their zoning powers to ban fracking within their borders, while Dryden argued that the zoning provision was not the type of regulation targeted for preemption by the OGSML.

Since the OGSML does not define what it means by “regulation of the oil, gas and solution mining industries”, the court in Norse Energy Corporation examined the legislative history of the law in order to determine whether the Town’s zoning ordinance fell within the ambit of the preemption clause.  The court ultimately concluded that the OGSML was aimed at “insur[ing] uniform statewide standards and procedures with respect to the technical operational activities of the oil, gas and mining industries”, and not to regulate where those activities could take place. Hence the OGSML would preempt a local law that attempted to regulate the actual operation of a natural gas well, but, the court held, it did not “usurp the authority traditionally delegated to municipalities to establish permissible and prohibited uses of land within their jurisdictions.”

This decision has important implications for fracking in New York State.  According to Earthjustice, an environmental group involved in the litigation, over 150 municipalities in New York have passed zoning ordinances banning or restricting fracking within their borders; in fact, a similar ordinance passed by the town of Middlefield was upheld by the same court on the same day. Another group, FracTracker, has compiled a table of municipal zoning actions on fracking in New York state, showing 55 bans and 105 moratoria on fracking, as well as several municipalities that have passed resolutions in favor of fracking.  The Norse Energy Corporation decision could encourage other municipalities to pass their own zoning resolutions restricting or banning fracking within their borders.

For more information about hydraulic fracturing and zoning matters, please contact Steve Barshov.

What sites are at risk of vapor intrusion?

Vapor intrusion, the migration of hazardous vapor from contaminated soil or groundwater into buildings, is of greatest concern at sites contaminated by VOCs , such as the chlorinated solvents perchloroethylene (“PCE” or “Perc”) and trichloroethylene (“TCE”), as well gasoline constituents.  Vapor can enter a building because of cracks in the foundation, openings around pipes or electrical wires, and heating and ventilation systems that decrease indoor air pressure, creating conditions that draw in vapor.

How have environmental regulators addressed vapor intrusion in the past?

In response to new evidence of human health risks and potential explosion hazards from vapor intrusion, EPA released draft vapor intrusion guidance under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) and Resource Recovery and Conservation Act (“RCRA”) in 2002.  At the time, EPA stated that “as the state-of-the-science improves, this guidance will be revised as appropriate.”

Over the following decade, however, the draft guidance was neither finalized nor revised, and individual states began to fill the regulatory gaps left by EPA.  New York’s Department of Environmental Conservation (“DEC”) and Department of Health issued their own vapor intrusion guidance, and DEC began a formal re-evaluation of hundreds of contaminated sites – many of which had already been remediated and delisted – for new vapor risks.  In December 2009, EPA’s Inspector General reported that the absence of final EPA guidance had “[impeded] EPA’s efforts to protect human health at sites where vapor intrusion risks may occur,” and urged EPA to finalize its 2002 draft.

What changes did EPA propose in its revised vapor intrusion guidance?

In response to the Inspector General report, last month EPA released a pre-publication draft of its final vapor intrusion guidance for public review and comment.  The updated document incorporates a number of revisions from the 2002 draft, including:

• A new, online calculator for determining generic and site-specific screening levels –contaminant concentrations where vapor intrusion is believed to present risk and additional investigation or mitigation is warranted;
• New recommendations for preemptive mitigation and early action at certain sites before a full vapor intrusion analysis is complete;
• New guidance on the use of deed restrictions and other institutional controls to restrict land uses or activities that could otherwise result in unacceptable exposure to the vapor intrusion pathway
• A separate guidance document addressing petroleum vapor intrusion from underground storage tanks, which was not covered in EPA’s 2002 guidance.

Who is likely to be impacted by EPA’s new guidance?

EPA’s guidance is specifically addressed to sites being evaluated pursuant to CERCLA and RCRA, and it is expected to influence the scope of remedial investigations, risk assessments, and remedy selection at such sites.  Moreover, because many CERCLA sites where remediation is complete must undergo five-year reviews for remedial effectiveness, consideration of vapor intrusion could reveal new public health risks and trigger additional mitigation requirements.

The guidance will also have impacts extending beyond CERCLA and RCRA.  Vapor intrusion is an increasingly common topic in environmental due diligence for real estate transactions, and Phase I Environmental Site Investigations often analyze possible vapor intrusion pathways.  EPA’s new screening levels and recommended mitigation measures are likely to inform negotiating positions and risk allocation at sites where vapor intrusion is suspected.  Vapor intrusion could also give rise to toxic tort liability, with plaintiffs relying upon EPA guidance and other regulatory standards to establish a violation of the defendant’s standard of care.  Finally, because vapor intrusion may impose new costs at previously-remediated sites, the guidance could lead more property owners to pursue “reopener” environmental insurance policies covering expenses incurred after a “No Further Action” or “Construction Complete” letter has been issued by state or federal environmental regulators.

How can I submit comments on EPA’s new guidance?

Comments on EPA’s revised vapor intrusion guidance may be submitted online at http://www.regulations.gov/#!docketDetail;D=EPA-HQ-RCRA-2002-0033 through May 24, 2013.

For more information about EPA’s guidance or other issues relating to vapor intrusion, contact Christine Leas or Jonathan Kalmuss-Katz.

The Army Corps issued individual permits for the bridge under Section 404 of the Clean Water Act (for discharge of fill into navigable waters of the United States) and Section 10 of the Rivers and Harbors Act (for dredging and other in-water construction work).  The Coast Guard bridge construction permit was issued pursuant to the General Bridge Act of 1946.

Issuance of these permits allows construction of the new bridge to begin.  Construction of temporary work platforms is expected to commence within a matter of weeks.  Dredging for the project will begin in August 2013.

Sive, Paget & Riesel has served as principal environmental counsel to the Thruway Authority and the State of New York throughout the planning and review of the New NY Bridge project at all levels of government.  The firm’s involvement with the project reflects Sive, Paget & Riesel’s recognized expertise and experience with major transportation and infrastructure projects and with the navigation of the labyrinth of required reviews, permits and approvals.  The firm also currently represents the Port Authority of New York and New Jersey on the Bayonne Bridge and Goethals Bridge projects.  For more information on the New NY Bridge project or the environmental review and permitting of other major infrastructure and development projects, contact David Paget or Mark Chertok.

Why is EPA Changing the Standard?

These changes reflect the terms of a settlement agreement between EPA and the Wisconsin Builders Association, the National Association of Home Builders and the Utility Water Act Group resolving the 7th Circuit lawsuit, Wisconsin Builders Association v. EPA, No. 09-4413 (7th Cir. 2012).  The groups challenged the EPA’s 2009 Effluent Limitations Guidelines for the Construction and Development Industry, known as the 2009 C&D Rule, arguing that the rule was unworkable and attempts at compliance with effluent limitations guidelines could cost stakeholders up to $10 billion annually.

Who is Affected by these Changes?

The 2009 C&D Rule applies only to stormwater discharged during construction, which generally includes clearing, grading and excavation.  Owners and operators of construction sites with one acre or more of land disturbance are subject to regulation and would be affected by the changes incorporated in the proposed rule.

What are the Changes?

The EPA acknowledged that the numeric turbidity requirements in the 2009 C&D Rule were flawed, and stayed implementation until additional information could be gathered.  Pursuant to the Wisconsin Builders Association settlement, the proposed rule entirely eliminates numeric turbidity limits.  The proposed rule additionally gives permittees more flexibility in adopting stormwater controls by specifically defining “infeasible” to allow consideration of industry practice as well as cost.  EPA has also incorporated common-sense explanations of how the rule should be applied. For example, the requirement to minimize soil compaction is now explicitly inapplicable in areas where the site’s function requires soil compaction, such as foundation pads for buildings or roads; similarly, the requirement to stabilize certain areas does not apply to areas whose function necessitates that they not be stabilized.  These changes, and others, reflect the continuing evolution of the standards for stormwater management under the Construction General Permit.

How Does This Affect Construction in New York?

In New York, the Department of Environmental Conservation (DEC) has authority to administer the NPDES program under its SPDES permit system.  DEC has already adopted many of the 2009 C&D Rule requirements in its Construction General Permit (GP-0-10-001) and the New York State Stormwater Management Design Manual (2010).  Discussion of the effect of the current proposed rule on the DEC Construction General Permit will be forthcoming in another blog post shortly.

EPA is accepting comments on the proposed rule through May 31, 2013.

For more information on stormwater regulation contact Michael Bogin or Maggie Macdonald.

Pier 57, which was constructed in the early 1950s and comprises three underwater caissons, a head house and a pier shed, is listed on the State and National Registers of Historic Places.  It has been vacant since the 1990s.  Developer Youngwoo & Associates proposes to lease the Pier from HRPT in order to redevelop it with an urban marketplace (using repurposed shipping containers for small food- and design-oriented retail businesses), restaurants, a large rooftop open space, and public circulation space around the perimeter of the pier.  The project may also include cultural space, an educational facility, and a marina.

SPR principals David Paget and Elizabeth Knauer have been advising HRPT regarding all environmental aspects of the project, including preparation of the EIS, consultation with the State Historic Preservation Office, and obtaining environmental permits for work that will be needed within the Hudson River.  This representation is the latest example of the firm’s longstanding work on major New York City waterfront developments, dating back to the South Street Seaport and Battery Park City projects and continuing with more recent projects such as Queens West, Brooklyn Bridge Park, the redevelopment of the Battery Maritime Building and Pier A in lower Manhattan, the Whole Foods store and Domino Sugar Refinery redevelopment in Brooklyn, and the proposed expansion of the New York Container Terminal in Staten Island.

• How can local governments physically modify their transportation, power, and sanitary infrastructure to adapt to the impacts of climate change, and by what legal mechanisms?
• Are massive floodgates feasible and desirable for the protection of the New York metropolitan area?  Or do “soft” barriers such as man-made wetlands represent a better alternative?
• What planning and land use concepts can be used to encourage smart real estate development that responds to climate change risks?
• Will claims of “scientific uncertainty” hinder climate change adaptation efforts to the same extent that similar claims have hindered climate change mitigation efforts?
• Where and how should coastal communities be rebuilt? What is the legal framework for government-led “strategic retreat” from the coast?
• How may relief be obtained from FEMA? How may relief be obtained from insurance companies?
• What federal, state, and local government programs are available to homeowners and businesses to aid recovery?
• What resources are available to help individual homeowners who have lost everything in the storm? What has been the experience in New York’s underprivileged communities, and can that be improved?

The conference was chaired by SPR principal Michael Bogin and Hofstra Law Professor Carol Casazza Herman, with critical support from SPR principal Pamela Esterman.  SPR principal Steven Barshov participated as a lecturer, focusing on the integration of infrastructure resilience into planning and development.

Sponsors of the conference were the American Bar Association Section of Environment, Energy, and Resources, the New York State Bar Association, and SPR.

For more information on Sandy recovery or climate change adaptation in the context of development, please contact Michael Bogin, Steven Barshov, or David Yudelson.

Conference speakers: (L-R) Professor Katrina Kuh, Maurice A. Deane School of Law at Hofstra University; Associate Dean Jennifer Gundlach,  Maurice A. Deane School of Law at Hofstra University; Dean Eric Lane, Maurice A. Deane School of Law at Hofstra University; Nassau County Supervisor Ed Mangano; SPR Principal Michael Bogin; Professor Carol Casazza Herman, Maurice A. Deane School of Law at Hofstra University.

The case arose when Northwest Environmental Defense Center (“NEDC”) sued several timber companies and state and local government officials, arguing that discharges of pollutants through stormwater conveyances associated with logging roads were discharges through point sources that required NPDES permits.  The defendants  – and EPA – argued that the conveyances were in fact exempted from the broad definition of “point source” under their interpretation of two federal regulations.  One of those regulations, the Silvicultural Rule, 40 C.F.R. § 122.27(b)(1), defined certain types of conveyances associated with logging and other timber operations as “silvicultural point sources” and excluded others.  The other regulation, known as the Industrial Stormwater Rule, 40 C.F.R. § 122.26(b)(14), fleshed out the nexus of two provisions of the CWA: section 1342(p)(1), which exempted discharges “composed entirely of stormwater” from CWA permitting requirements, and section 1342(p)(2)(B), which required NPDES permits for stormwater discharges “associated with industrial activity.”

NEDC argued that stormwater conveyances associated with logging roads were not excluded from the definition of silvicultural point sources under the Silvicultural Rule, and that the Industrial Stormwater Rule – which included “logging” under a list of industrial activities – could only be interpreted to mean that stormwater associated with logging roads was in fact stormwater associated with industrial activity, and thus required a NPDES permit. The trial court agreed with the defendants, but the Court of Appeals for the Ninth Circuit reversed, holding that the stormwater conveyances were in fact point sources discharging stormwater associated with industrial activity and that EPA’s regulations governing the issue were unambiguous – that is, they could not be interpreted in any manner other than the one the Ninth Circuit (and NEDC) chose.  This last part of the Ninth Circuit’s holding was of particular importance, as two Supreme Court cases – Auer v. Robbins, 519 U.S. 452 (1997), and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) – have created a rule that courts will defer to an agency’s interpretation of its own regulations, so long as the interpretation is not plainly erroneous or inconsistent with the regulation itself.  This principle, known as “Auer deference”, is binding upon the courts; hence if EPA’s Silvicultural Rule and Industrial Stormwater Rule were ambiguous, and EPA’s interpretation of those rules was not plainly erroneous or inconsistent with the regulations themselves, the Ninth Circuit would be obligated to defer to EPA’s interpretation and rule against NEDC.

The Supreme Court reversed the Ninth Circuit and applied Auer deference: it found that EPA’s regulations were ambiguous, the agency’s interpretation of those regulations was plausible, and that therefore the courts should defer to the agency and hold that discharges from logging roads did not need NPDES permits.  In fact, the Court did not even consider for itself the issue of whether the stormwater conveyances associated with logging roads were point sources under the CWA or EPA’s implementing regulations – this despite the fact that the Court at one point said that it found NEDC’s interpretation of EPA’s rules “more plausible” than EPA’s.

A lone dissent by Justice Scalia argued – as the Ninth Circuit had – that NEDC’s interpretation of the rule was in fact the only plausible interpretation, and that the majority’s ruling suggests that it is time to reconsider whether Auer deference is an appropriate rule of law.  Chief Justice Roberts wrote a concurring opinion, joined by Justice Alito, suggesting that the Court might revisit Auer deference in the future, but that it would wait for a case in which the issue was clearly presented.

The Supreme Court’s decision in Decker has important implications, not only for the question of whether stormwater discharges require NPDES permits, but for interpretation of environmental regulations more generally; for the foreseeable future, it will remain difficult to challenge an agency’s interpretation of its own regulations.

For more information on stormwater permitting issues, please contact Michael Bogin.

The issuance of the Section 401 water quality certification by DEC allows the remaining federal permits for the project to move forward.  Project permits from the Army Corps of Engineers and the Coast Guard are anticipated in the upcoming weeks.  The first construction barges for the project arrived at the project site this week to begin geotechnical investigations for bridge piles; construction of temporary work platforms for the bridge is expected to begin in early May.  These initial steps represent the beginning of a five-year construction process for the new bridge. 

The New NY Bridge project is being built using an innovative design-build process, and is believed to be the largest such transportation project in the United States.  It is also the first such project in New York State under the recently enacted legislation authorizing design-build projects.  The project has involved a labyrinth of environmental reviews, approvals and permitting processes, including the intersection of the National Environmental Policy Act (NEPA) and the State Environmental Quality Review Act (SEQRA), parkland review under Section 4(f) of the Department of Transportation Act, historic review under Section 106 of the National Historic Preservation Act, consultation under the Endangered Species Act, Essential Fish Habitat review, various Executive Orders respecting wetlands and environmental justice, and Clean Air Act conformity determinations by the Army Corps of Engineers and Coast Guard, among others.   

Sive, Paget & Riesel’s involvement with the New NY Bridge project reflects the firm’s recognized expertise and experience with major transportation and infrastructure projects and the navigation of the dizzying complex of required reviews.  The firm also currently represents the Port Authority of New York and New Jersey on the Bayonne Bridge and Goethals Bridge projects.  For more information on the New NY Bridge project or the environmental review and permitting of other major infrastructure and development projects, contact David Paget or Mark Chertok.

NEPA requires federal agencies to assess proposed actions’ environmental impacts, and to prepare an environmental impact statement (“EIS”) when potentially significant, adverse impacts are identified.  Section 106 requires federal agencies to determine whether proposed actions (or “undertakings”) could affect historic properties, including but not limited to those listed on the National Register of Historic Places.  If the undertaking may have an adverse effect, the agency must work with federal, state and tribal stakeholders in order to develop a plan to avoid, minimize, or mitigate such effects on the resource.  Because effects on historic and cultural resources are considered environmental impacts under NEPA (though not necessarily significant effects under NEPA), the analyses required under the two statutes often overlap, creating the potential for duplicative study and overlapping procedural requirements if review is not coordinated.

Under Section 106 regulations, agencies may substitute NEPA review for Section 106 analysis in certain circumstances, although substitution requires early notification of ACHP and incorporation of Section 106 requirements into an Environmental Assessment or EIS.  The Handbook provides a checklist to determine when substitution is appropriate and whether the substitute procedures have been adequately followed under NEPA.

In the absence of substitution, the Handbook emphasizes how agencies can nonetheless coordinate NEPA and Section 106 review by developing a combined schedule and communications plan; using NEPA analyses and comment periods to fulfill Section 106 documentation and participation requirements; and planning ahead to avoid, minimize or mitigate historic impacts early in the review process.  The Handbook concludes: “The current paradigm for environmental reviews advanced by CEQ and the ACHP envision these reviews occurring simultaneously, continually exchanging information, and allowing determinations and recommendations in one to inform the other.”

For more information on the CEQ-ACHP Handbook or project review under NEPA and Section 106, contact David Paget, Mark Chertok or Elizabeth Knauer.

The conference is co-sponsored by Sive, Paget & Riesel, P.C., the American Bar Association Section on Environment, Energy, and Resources, and the New York State Bar Association. SPR principals Steven Barshov, Michael Bogin, and Pamela Esterman will participate in the conference as co-chairs, moderators, and speakers.

For more information about the conference and to register, please visit the conference website.