Existing buildings will now be able to add up to eight inches of insulation to their exterior even if the added material would violate existing regulatory limits on building size.  The changes to the zoning regulations allow existing buildings to add insulation without counting such additional thickness against floor area restrictions, so long as the additional insulation meets certain energy-efficiency requirements.  Similar revisions permit existing buildings to add up to eight inches of insulation without counting them against a building’s maximum height or the minimum setback and open space requirements, and allow new buildings to incorporate thicker insulation in their exterior walls if the insulation exceeds the requirements of the New York City Energy Conservation Code by a specified percentage. 

Other changes are designed to encourage the use of solar energy for power generation.  The revised regulations allow buildings to add solar energy systems to their roofs without counting them against a building’s maximum height.  The solar panels themselves must meet additional height restrictions according to the building’s zoning designation and whether the roof is flat or angled.  Buildings will also be allowed to add solar panels or exterior solar shades to their exterior walls as “permitted obstructions” that can project into open space required by the zoning code. 

The new zoning rules also allow several other environmentally-friendly elements as “permitted obstructions” on building roofs.  These include wind turbines on buildings over 100 feet tall and buildings near the waterfront, rooftop greenhouses, like the one planned for Sunset Park, “blue roofs” that use weirs and detention mechanisms to slow the release of stormwater, and “green roofs” that use rooftop vegetation to retain water, reduce heat gain, and provide recreational space.  The rules also permit boilers to be placed on building roofs, rather than in the basement. This eliminates the need for interior chimneys, increases energy efficiency, and reduces fire risk.

For more information on the New York City Zoning Resolution, please contact Steven Barshov.

In addition to releasing natural gas (methane) that is recovered and sold as the main product of the hydraulic fracturing (or “fracking”) process, fracking also releases excess methane, benzene, hexane, volatile organic compounds (“VOCs”) and other pollutants that escape from the wellhead into the air, particularly during the stage of well “completion”, when newly drilled wells transition from the drilling phase to production phase.  Each of these gases has environmental impacts.  Methane is a greenhouse gas twenty times more powerful than carbon dioxide.  Benzene (a human carcinogen) and hexane are toxics with known human health impacts, while VOCs contribute to the formation of smog.  EPA’s regulations will require natural gas producers to capture these emissions at the wellhead using add-on equipment known in the industry as “green completions” or “reduced emissions completions.”  Such equipment is already required by state regulations in Wyoming and Colorado. 

While EPA initially proposed that the regulations would go into effect immediately, the final regulations only require natural gas producers to have green completions equipment installed on new or re-drilled wells by January 2015.  The natural gas industry had lobbied for the delay in implementation, and EPA cited the lack of sufficient supplies of green completions equipment as the reason for the delay until 2015.  Well operators will be required to flare their emissions until the new technology is installed.   

The EPA estimates that green completions technology will be cost effective for the industry because the captured methane gas can be sold, and because natural gas companies currently using the technology have reported that green completions can be a profitable addition to their wellhead operations.

The full text of the regulations is available here.

In Leese v. Lockheed Martin Corp., plaintiffs Michael and Ashley Leese and their minor children allege that groundwater under their property and indoor air within their home are contaminated with trichloroethylene (“TCE”) and tetrachloroethylene (“PCE”) released from defendant Lockheed Martin’s neighboring property.

Lockheed Martin remediated TCE contamination at its property under an agreement with the New Jersey Department of Environmental Protection (“DEP”), and, at DEP’s request, conducted near-slab and sub-slab soil vapor testing at surrounding residences.  Lockheed Martin’s testing revealed elevated levels of PCE beneath the Plaintiffs’ property, and the Plaintiffs’ subsequent air quality testing detected PCE in the basement and first floor of their home.  Plaintiffs filed suit under the New Jersey Spill Act, the New Jersey Water Pollution Control Act, the Resource Conservation and Recovery Act, and New Jersey common law under theories of nuisance, trespass, strict liability and negligence.

In support of its motion to dismiss, Lockheed Martin argued, among other grounds, that there was no possible connection between TCE in the groundwater underneath the Plaintiff’s home and any residential exposure.  The Court rejected that claim, citing the Environmental Protection Agency’s finding that “TCE can be released into indoor air from … vapor intrusion … and volatilization from the water supply.”

Viewing the facts in a light most favorable to the Plaintiffs, the Court found that Plaintiffs had given Lockheed Martin sufficient notice of their claims and raised a reasonable expectation that discovery would reveal evidence to support all of their claims.  As the Court noted, depending on the nature of the facts unearthed throughout the discovery process Plaintiffs may still face a summary judgment motion by Lockheed Martin.  Regardless of the ultimate outcome of this case, this decision demonstrates the courts’ willingness to recognize vapor intrusion as a legitimate basis for environmental claims, and serves as a valuable reminder to be cognizant of potential liability arising from vapor intrusion.

Sive, Paget & Riesel represents a number of property owners on matters relating to vapor intrusion. For more information on this topic, please contact Christine Leas, Jeffrey Gracer or Michael Bogin.

Second, on April 3, 2012, the Renewable Energy Task Force of the Bureau of Ocean Energy Management-New York (“BOEM-NY”) convened a meeting to discuss New York’s ongoing activities regarding offshore wind development in the Atlantic, including the progress of studies intended to support a forthcoming proposal to amend the state’s Coastal Zone Management Program to include Atlantic wind development.  The Task Force also discussed the New York Power Authority’s request that BOEM grant a commercial lease on the outer continental shelf to the Long Island-New York City Offshore Wind Collaborative, and the process and timeline for BOEM’s leasing decision and environmental impact review.

For more information, please contact Michael Bogin

For more information, contact Michael Bogin, who also serves as a member of the FWAB.

• The rule applies to new fossil fuel-fired electric utility generating units in the continental United States; it does not apply to existing units or new “transitional” units that already have received preconstruction air emission permits and that start construction within 12 months of the proposed rule’s publication in the Federal Register.

• Covered power plants would be required to meet an output-based standard of 1,000 pounds of CO₂ per megawatt-hour.

• This standard is expected to favor natural gas over coal.  EPA states that “[n]ew natural gas combined cycle power plant units should be able to meet the proposed standard without add-on controls.”  By contrast, coal-fired power plants would not be able to meet this standard without carbon capture and storage technology, which is still under development and is expected to be quite costly.

The proposed rules (New Source Performance Standards under Section 111 of the Clean Air Act) result from a settlement between EPA and a group of states and environmental organizations.  These plaintiffs sued EPA in opposition to the agency’s refusal, in 2006, to establish greenhouse gas emission standards for new and modified power plants.  EPA was required to revisit this decision in the aftermath of the U.S. Supreme Court’s landmark decision in Massachusetts v. EPA, which affirmed EPA’s statutory authority under the Clean Air Act to regulate greenhouse gas emissions.

Under the settlement giving rise to the standards proposed last week, EPA had also agreed to establish CO₂ emissions guidelines for existing fossil fuel power plants.  EPA has yet to propose such standards, and the time frame for its doing so is uncertain; EPA Administrator Lisa Jackson recently stated, “[w]e don’t have plans to address existing plants.”

The full text of the proposed rule is available here.  Public comments are being accepted under Docket ID No. EPA‐HQ‐OAR‐2011‐0660 at www.regulations.gov for 60 days after the proposed rule’s publication in the Federal Register.

Since 1984, EPA, the New York State Department of Environmental Conservation, (“DEC”) and the New York State Department of Health (“DOH”) have been jointly engaged in a remediation program to address contamination in the Hudson River.  EPA has been recognized by law as the lead agency.

The Town of Waterford challenged DEC’s denial of portions of its request for information under FOIL.  The Town wished to review alternative water supply analyses for local residents and other deliberative but not final information exchanged between the EPA and state agencies. The information sought included the federal agency’s deliberative analysis of various cleanup options for the project.  The DEC denied access to certain records received and exchanged with the EPA by invoking the FOIL exception for inter-agency or intra-agency materials otherwise known as the deliberative process exception.

Ensuing litigation focused on whether documents originally generated by the EPA, a federal agency, were within the statutory exemption for pre-decisional inter-agency or intra-agency materials.  The Court held that the statutory definition of “agency” does not include federal agencies, consistent with prior determinations of the New York State Committee on Open Government, which has also interpreted the definition of “agency” under applicable New York law to exclude federal agencies. 

 This decision is significant because records previously withheld by federal agencies under federal law, but that have been provided to state agencies, may now be subject to release in FOIL requests directed to state agencies.   Many environmental enforcement and regulatory matters routinely involve agency interaction and the exchange of information between state and federal agencies.   One practical consequence of the ruling going forward may be that federal agencies will be less likely to provide deliberative documents to DEC and other state agencies.

For more information on the Waterford decision, please contact Michael Lesser.

The new guidance specifically endorses the use of scoping for EAs and encourages the coordination of federal NEPA reviews with state, local, and tribal environmental review processes and with reviews under other federal laws (such as the Endangered Species Act and the National Historic Preservation Act).  The guidance also recommends that agencies use their websites to facilitate public review and comment on draft EAs and EISs when those documents are being circulated for review.

Other suggested strategies and tools for improving efficiency and timeliness in NEPA reviews include the following:

• Make NEPA documents more concise: Reviews should not be “encyclopedias of all applicable information,” but should include only enough discussion to show why more study is not warranted on insignificant issues.  Reviews should be written in plain language to avoid unnecessary confusion or risk of litigation from ambiguous or opaque analysis.

• Integrate reviews early in the planning process: For actions initiated by non-federal entities, federal agencies should guide applicants to gather and develop environmental information and analyses in advance of submitting applications.  This may include soliciting an environmental report from the applicant to facilitate the lead agency’s review.

• Adopt existing EAs or EISs and incorporate material by reference: Subject to public review requirements, CEQ regulations provide for the adoption of one federal agency’s EIS or portion of that EIS by another federal agency preparing an EIS or EA.  Agencies can also incorporate relevant analyses and information from existing documents.

• Set clear time lines for NEPA reviews: CEQ recommends that agencies establish clear time limits and designate a lead person to shepherd the NEPA review process.

Prior steps taken by CEQ to help modernize NEPA include publishing guidance on the use of Categorical Exclusions, guidance on mitigation and monitoring, and draft guidance on the consideration of greenhouse gas emissions and climate change impacts in NEPA reviews.  As previously discussed on this blog, the White House has selected the Tappan Zee Hudson River Crossing Project as one of fourteen priority infrastructure projects chosen for expedited environmental review and permitting under a CEQ pilot program.

The significance of the Supreme Court’s ruling in Sackett v. EPA is likely to extend beyond the Clean Water Act, however, as administrative agencies frequently issue interim decisions – similar to the EPA’s compliance order in Sackett – while claiming that such actions are either non-final or statutorily precluded from pre-enforcement review.  Writing for the Court, Justice Scalia found that the order “has all the hallmarks of … finality” and “there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review — even judicial review of the question whether the regulated party is within the EPA’s jurisdiction.”  Similar reasoning could apply to other federal environmental statutes as well, aside from the federal Superfund law which is “uniquely designed” in its express preclusion of certain pre-enforcement review.

Sackett arose out of an Idaho couple’s filling of part of a residential lot, which the EPA later determined to be regulated wetlands.  EPA issued a compliance order directing the landowners to remove the fill and implement a Restoration Work Plan, and threatening penalties of up to $75,000 per day of non-compliance.

The landowners sued, arguing that EPA had incorrectly classified their property as a wetland and its compliance order was arbitrary and capricious as a result.  Both the District Court and the 9th Circuit Court of Appeals dismissed their challenge for lack of jurisdiction, holding that the Clean Water Act precluded pre-enforcement review of compliance orders, and that such limitation did not violate the Due Process Clause because the landowners could still apply for a wetlands fill permit from the U.S. Army Corps of Engineers (“Army Corps”) or ignore the order and challenge EPA’s wetlands determination in defense of an EPA civil enforcement action.  

The Supreme Court reversed.  As a threshold matter, the Court ruled that the compliance order was “final agency action” subject to challenge under the Administrative Procedure Act (“APA”), because it determined the landowners’ legal obligations and marked EPA’s final determination as to the scope of its jurisdiction.  The Court rejected the argument that the landowners were required to apply for and challenge the denial of a wetlands fill permit, instead holding: “The remedy for denial of action that might be sought from one agency does not ordinarily provide an ‘adequate remedy’ for action already taken by another agency.”

Finally, the Court found that the Clean Water Act does not limit the courts’ pre-enforcement jurisdiction, finding no evidence in the statutory text or legislative history to overcome the APA presumption of judicial review.  It thus did not determine whether denial of review would have violated the landowners’ Due Process rights, but a concurrence from Justice Alito suggests that he would have upheld the Sacketts’ constitutional argument that without the opportunity for judicial review they would have been deprived of property rights without due process.    

In addition to the compliance orders at issue in Sackett, the Supreme Court’s reasoning may expand judicial review over a broad range of interim administrative decisions.  For instance, federal and state agencies often issue “jurisdictional determinations” defining the boundaries of regulated wetlands, limiting the use of such property where no alleged violation has yet occurred.  Future litigation will likely determine whether such determinations can be challenged under the APA and its state counterparts, as well as whether Clean Air Act Administrative Compliance Orders – which EPA has historically interpreted as not subject to pre-enforcement review – are affected by the Supreme Court’s ruling.

For more information on the Sackett decision and judicial review of agency actions, contact Daniel Riesel.

Several of EPA’s most significant changes in CGP 2012 are highlighted below: 

Effluent Limitation Guidelines
The 2012 CGP includes narrative requirements implementing Effluent Limitations Guidelines (“ELG”) for construction sites, without numeric limits.  While EPA published numeric limits for turbidity in 2009, that rule was withdrawn in response to petitions challenging its methodology, and EPA is currently collecting additional data before proposing a revised turbidity limit.  In the interim, EPA’s narrative requirements include:

• Erosion and Sediment Controls – Permittees must provide and maintain natural buffers around all surface waters directing stormwater to vegetated areas, unless infeasible.
• Soil Stabilization – Soil stabilization must be initiated immediately where earth-disturbing has ceased and will not resume for a period exceeding 14 days.
• Dewatering Requirements – Discharges from dewatering are prohibited under the 2012 CGP, unless managed by appropriate controls.

Water Quality-Based Effluent Limits
For construction sites discharging into waters impaired by common pollutants associated with construction activities (e.g., sediment and nutrients), and for sites discharging to high quality waters, EPA imposed more stringent requirements in the 2012 CGP.  These changes include a more rapid stabilization timeline and more frequent site inspection.  Construction operators must therefore determine the quality of receiving water and adapt their Stormwater Pollution Prevention Plans accordingly.

Endangered Species and Historic Preservation Analysis
Under the 2012 CGP, operators are required to assess impacts on endangered species and historic resources, something not previously required under the EPA or New York CGPs.  In light of these changes, EPA extended the waiting time between submission of a Notice of Intent to discharge under the CGP and the time coverage begins under the permit from 7 to 14 days.  Presumably, New York will need to do the same by extending its established 5-day authorization.

To be eligible for coverage under the 2012 CGP, construction operators must also  make a determination that the project falls under one of six eligibility criteria related to the protection of endangered or threatened species and their critical habitat, described in greater detail in Appendix D of the new general permit.  Prior to submitting an NOI, operators must also determine whether stormwater controls have the potential to affect historic properties and whether additional consultation is required, as set forth in  Appendix E of the 2012 CGP.

In addition to the above requirements, the 2012 CGP requires more frequent site inspections based on the size, duration, and frequency of storm events; imposes new triggering conditions, deadlines and documentation requirements for corrective action measures; and establishes new procedures governing the termination of coverage under the 2012 CGP.

For more information on the 2012 CGP, or stormwater permitting generally, contact Michael Bogin.