The January 10, 2012 decision from Judge Joan Lefkowitz of the Supreme Court, Westchester County held that the 2010 General Permit for Stormwater Discharges from Municipal Separate Storm Sewer Systems (“MS4 General Permit”) violated the Clean Water Act (“CWA”) and the provisions of New York law that implement it.

The MS4 General Permit replaces individual State Pollutant Discharge Elimination System (“SPDES”) permits for hundreds of municipal storm sewer outfalls outside of New York City.  Because these outfalls share common characteristics, the Department of Environmental Conservation (“DEC”) issued a general permit that governs the discharge of stormwater by municipalities across the state.

To obtain coverage under the MS4 General Permit, municipalities must submit a Notice of Intent (“NOI”) to DEC and comply with the General Permit terms.  NOIs must propose an initial Stormwater Management Plan (“SWMP”) to effectuate pollution reductions, which must be developed and implemented within three years of gaining permit coverage.

Judge Lefkowitz struck down the MS4 General Permit on three grounds.

First, the Court held that the MS4 General Permit fails to require a reduction of pollutant discharge to the “maximum extent practicable”, as required by the Clean Water Act and its New York equivalent, because it “creates an impermissible self-regulatory system.”  Relying heavily on a 9th Circuit decision which declared NOIs to be “functionally equivalent to detailed applications for individual NPDES permits,” the Court emphasized that the MS4 General Permit does not require DEC to review a municipality’s SWMP prior to approving coverage.  Thus, “the initial determination of what particular control measures would be implemented and whether those measures would in fact reduce pollutant discharge to the level mandated by the applicable statute or regulation were left to each operator to make after it had already been authorized to discharge.”

Applying the same “functional equivalent” rationale, the Court also held that the NOI is effectively a permit application without an opportunity for a “public hearing,” as required for CWA permit applications.  The Court acknowledged that the MS4 General Permit itself was subject to extensive public review prior to issuance, but this was insufficient because, under the permit, neither the public nor DEC is able to review the specific pollution reduction measures contained in a municipality’s SWMP until after the municipality obtains coverage allowing it to discharge.

Finally, the Court held that the MS4 General Permit is unlawful because, while it requires MS4s to reduce pollutant loads to water bodies that violate State water quality standards, the permit does not mandate compliance within the nine month timeframe required by law.

While the plaintiff environmental groups in this case have proclaimed a victory, DEC’s time to appeal  has not yet expired.  If it is ultimately upheld, Judge Lefkowitz’s decision may have repercussions not only for municipalities, but also for construction sites and industrial activities covered by DEC’s Construction Stormwater General Permit and Multi-Sector General Permit.  SPR will be tracking developments related to this decision and will provide updates as applicable.

For more information about stormwater permitting, please contact Michael Bogin.

First, DEC proposed carbon dioxide emissions limits for new and expanded power plants (so long as the expansion adds at least 25 megawatts of capacity).  These limits are measured on the basis of a 12-month rolling average by dividing the total emissions of CO₂ by the total megawatts generated or fuel input into the plant.

The limits are:

• 925 pounds of CO₂ per megawatt-hour of electrical output, or 120 pounds of CO₂ per million Btu of input for combined cycle combustion turbines, stationary internal combustion engines firing only gaseous fuel, or boilers firing over 70% fossil fuel, and
• 1450 pounds of CO₂  per megawatt-hour, or 160 pounds of CO₂ per million Btu of input for simple cycle combustion turbines or stationary internal combustion engines firing either liquid fuel or a combination of liquid and gaseous fuel.

Second, DEC proposed regulations governing analysis of environmental justice issues when power plants are sited under the reauthorized Article X of the Public Service Law.  According to DEC Commissioner Joe Martens, these are the first such regulations in the country.

The proposed environmental justice regulations require an initial analysis of the area immediately surrounding the proposed facility to determine whether that area includes an “environmental justice area” containing a minority or low-income community that may already bear a disproportionate share of environmental impacts.  If so, an application to site a power plant must include an analysis of any significant adverse environmental impacts to the environmental justice area resulting from the plant’s operation or construction.  Such an assessment must include:

• An analysis of the plant’s cumulative impact on air quality,
• A comprehensive analysis of the environmental justice area, and
• A comparison of that area to the county or other adjacent communities (for facilities proposed within New York City, this includes the entire city) to determine if the impacts to the environmental justice area are disproportionate.

The regulations also require the applicant to identify, analyze, and implement mitigation measures that will avoid any disproportionate significant adverse environmental impacts to the maximum extent possible.  If the impacts cannot be avoided or minimized, the applicant must offset the impacts.

The proposed environmental justice regulations state that they are “not intended to … create any right to judicial review involving the compliance or noncompliance of any person with this Part.”  DEC also acknowledges, however, that the Power NY Act “expressly provides for judicial review” of power plant siting determinations.  Thus, it is unclear to what extent, if any, the proposed regulations’ disclaimer precludes judicial review of the Act’s mandatory environmental justice analysis, or whether such limitation would be deemed consistent with the underlying statute.

Comments on both sets of proposed regulations are due by 5 p.m. on March 15, 2012.  Information on filing comments is available here.

For more information, contact Jeffrey Gracer.

During area-wide rezonings, the Zoning Resolution authorizes the placement of E designations on affected lots with potential significant adverse air quality, noise or hazardous materials impacts.  Before undertaking any land use or property changes that require a building permit from the Department of Buildings (“DOB”), owners of designated lots must first receive approval from OER that E designation requirements have been satisfied, which may involve additional environmental analysis or remediation.

DCP has summarized the proposed changes to the E designation and related sections of the Zoning Resolution, broadly characterizing the revisions in six categories: environmental restrictive declarations; applicability; enforcement; post-approval modifications; ongoing monitoring; and duplicative and outdated text updates.  

Most importantly, the amended text makes the E designation program applicable to environmental restrictive declaration (“RD”) properties, the first step in doing away with the practice of using environmental RDs.  Currently, DCP uses RDs to ensure investigation and any necessary environmental remediation on applicant-controlled properties in connection with zone changes, variances, special permits and other DCP-issued authorizations.  The E-designation program currently only applies to zoning map amendments; typically, area-wide rezoning.  The proposed amendments would merge both into an expanded E designation program.

The City Planning Commission held a public hearing on the Zoning Resolution amendment on January 4, 2012 and will continue its review through February 29, 2012.  The City Council will then have 50 days to review the amendment.  OER has also indicated that it will be publishing its draft rules implementing the E designation program in the coming weeks. Sive, Paget & Riesel is tracking these developments, and will continue to provide updates as the zoning amendment is finalized and the OER rules become available for review and comment.

For more information on E designations, contact Christine Leas or David Yudelson.

The DEP rules amend Chapter 31 of Title 15 of the Rules of the City of New York, which regulates the construction, permitting, and inspection of sewer connections.  For a new development, the performance standard establishes a “stormwater release rate” equal to the greater of 0.25 cubic feet per second (“cfs”) or 10% of the new development’s “allowable flow,” the stormwater flow that can be released into a storm or combined sewer based on existing sewer design criteria.  In no case, however, will the new release rate exceed allowable flow. 

For medium and large sized lots, these changes would effectively require a significant increase in stormwater detention on site.  Lots smaller than 5,000 square feet are not likely to have a release rate that exceeds 0.25 cfs, so they will probably only need to comply with existing sewer availability and connection application process requirements.

Redevelopment projects in combined sewer areas may also need to meet new performance requirements.  If a redevelopment requires an alteration permit from the Department of Buildings (“DOB”) and will increase existing impervious surfaces (including building footprints) by more than 20%, the release rate for the altered area must be proportional to the ratio of the altered area to the total site area.  Moreover, on such projects, no new points of stormwater discharge are permitted.  Proposed redevelopments that increase im­pervious surfaces or building footprints by 20% or less are exempt from the stormwater per­formance standard unless an additional sewer connection is proposed.

In addition to the new performance standard, the DEP and DOB have developed new “Guidelines for the Design and Construction of Stormwater Management Systems” (the “Design Manual”) which the City hopes “will ease the development community’s transition to stricter stormwater release rates when connecting to the City’s combined sewer system.”  The stormwater performance standard and Design Manual are key elements of the broader New York City “Green Infrastructure Plan” unveiled by Mayor Bloomberg on September 28, 2010, which aims to reduce combined sewer overflows (“CSOs”) into the City’s waterways by 40% by 2030.

Finally, because the City expects more stringent federal and state Mu­nicipal Separate Storm Sewer Systems (MS4) requirements to be published within the next year, the City expects to revisit the stormwater performance standard and the Design Manual to add stormwater management requirements in separately sewered areas.  The City will then also re­visit the adequacy of the stormwater management program in combined sewer areas.

 For more information on the new stormwater performance standard, contact Michael Bogin.

The EPA listed the Gowanus Canal on the Superfund National Priorities List in March 2010 and released a Remedial Investigation (“RI”) in early 2011 that reported elevated levels of polycyclic aromatic hydrocarbons (“PAHs”), polychlorinated biphenyls (“PCBs”) and metals.  Parts of the environmental investigation of the areas surrounding the Canal were performed by National Grid and New York City under Administrative Orders on Consent with EPA.

The Draft Feasibility Study proposes dredging, treating and disposing approximately 588,000 cubic yards from the Canal, at a projected cost of $351 million to $456 million.  EPA expects to release a Proposed Plan for its preferred remedy sometime in 2012.

In addition to assessing the dredging of the Canal, the Draft Feasibility Study states that “upland source controls,” including controls on CSOs and stormwater discharges, “need to be coordinated and implemented in concert with the selected sediment remedy[.]”   According to press reports, the New York City Department of Environmental Protection (“DEP”) expressed concerns about EPA’s CSO control plans, stating that the “primary sources [of canal contamination] are the former industrial plants on the canal, and not ongoing sewer overflows.”

EPA is accepting public comment on the Draft Feasibility Study and has tentatively scheduled a meeting for January 24, 2012, 7:00 p.m., at 330 Smith St., Brooklyn, to discuss the EPA’s plans.  For more information on the Gowanus Canal Superfund Site, contact David Yudelson or Michael Bogin.

A number of municipalities chose not to await action by either the State Legislature or the DEC and enacted land use laws banning hydrofracking.  Litigation against two of these municipalities was commenced and both court battles are moving close to decision.  Both cases involve legal challenges to municipal zoning changes that effectively ban hydrofracking activities within municipal boundaries.  The outcome of these high profile cases will have far-reaching implications for municipal zoning inNew YorkState and for the future of hydrofracking in the state.

In Cooperstown Holstein Corporation v. Town of Middlefield (Sup. Ct. Otsego Co.), the plaintiff corporate landowner entered into two leases in 2007 granting the lessee the right to explore, develop, produce and market oil and gas resources on approximately 380 acres of plaintiff’s land.  In June 2011, the Town of Middlefield amended its zoning ordinance to provide, among other things, that “[h]eavy industry and all oil, gas or solution mining or drilling are prohibited uses” within the town.  Cooperstown Holstein filed suit in September 2011 challenging the zoning amendments on the ground that such municipal action concerning oil and gas operations is preempted by state law and asking the court to declare the amendments void.

In Anschutz Exploration Corporation v. Town of Dryden (Sup. Ct. Tompkins Co.), plaintiff driller and developer of oil and natural gas wells owns oil and gas leases covering approximately 22,000 acres in the Town of Dryden.  The leases allow Anschutz to explore for, develop and produce natural gas from the lease holdings.  In August 2011, the Town of Dryden amended its zoning ordinance to, among other things, specify that “[n]o land in the Town shall be used” for exploration or drilling for natural gas and/or petroleum, or for the transfer, storage, processing, treatment or disposal of natural gas and/or petroleum.  Anschutz filed suit in September 2011 seeking to have the zoning amendments declared void on the ground of state preemption.

Plaintiffs’ legal challenges in Cooperstown Holstein and Anschutz are primarily based on Article 23 of the Environmental Conservation Law (ECL), which sets forth the state’s policy regarding development of mineral resources and authorizes the Department of Environmental Conservation  to regulate and issue permits for oil and natural gas development.  In particular, plaintiffs rely on ECL § 23-0303(2), which provides:

“The provisions of this article shall supersede all local laws or ordinances relating to the local regulation of the oil, gas and solution mining industries; but shall not supersede local government jurisdiction over local roads or the rights of local governments under the real property tax law.”

Plaintiffs argue that this provision preempts all local regulation, including zoning, of oil and gas development except for matters relating to local roads and property taxes.  The defendant towns have responded by claiming that ECL § 23-0303(2), while limiting local regulation of oil and gas activities, does not affect or override traditional home rule powers of municipalities on zoning matters.  In support of their argument the towns cite a 1987 New York Court of Appeals decision interpreting New York’s Mined Land Reclamation Law in which the Court held that a similar provision did not prohibit municipalities from exercising their traditional zoning authority to restrict or ban mining. Frew Run Gravel Products, Inc. v. Town of Carroll, 71 N.Y.2d 126 (1987).

Oral argument in Anschutz was held in November.  The court reserved decision but is expected to issue its ruling soon.  Cooperstown Holstein was argued in December, and the court agreed to accept additional written submissions until mid-January 2012.  A ruling in that case is not expected until February at the earliest.  Whatever the initial resolution in these two closely watched cases may be, a final determination of the preemption issue will depend on the outcome of the nearly certain appeals to follow.

For more information on hydrofracking issues contact Christopher Amato or Steven Barshov.

Petitioners challenged the regulations on numerous grounds, including that in adopting the regulations, DEC had failed to seek approval from the State Environmental Board, failed to hold public hearings, and violated the State Administrative Procedures Act and the State Environmental Quality Review Act; that the regulations are ultra vires and constitute an improper delegation of a governmental function; and that petitioners’ due process rights had been violated.  DEC moved to dismiss both proceedings on the grounds that the issues raised were not ripe for review and that petitioners lacked standing.

In considering the ripeness issue, the court reviewed appellate case law establishing that ripeness turns on whether the potential harm from a challenged administrative action is sufficiently concrete.  The court noted that none of the petitioners had shown that they were undertaking or planned to undertake an activity subject to Part 182.  Although one petitioner alleged that future development of its land may require review under the new regulations, the court found that “[t]he fact that petitioners may be required, in the future, to undergo the DEC Part 182 review process is insufficient to constitute an actual or concrete injury.”  Because petitioners had failed to demonstrate any concrete injury resulting from the regulations, the court concluded that petitioners’ actions were not ripe for judicial review.

With respect to standing, petitioners argued that, as owners of land that may be utilized by endangered or threatened species, they had standing similar to that of landowners who challenge a zoning change in their zoning district.  The court rejected this argument, noting that, in contrast to a municipal zoning ordinance, Part 182 has statewide application “and does not impose any immediate and tangible change in land use.”  The court went on to conclude that petitioners had failed to establish standing because they had not shown any injury different from the public at large, and had not applied for an incidental take permit, sought a jurisdictional determination from DEC under Part 182 or been subject to an enforcement action under the regulations.

The court also rejected the claim by two petitioners that they had standing as citizen-taxpayers under State Finance Law 123-b, finding that their allegations with regard to the alleged unlawful expenditure of state funds were “nonspecific and conclusory and thus fail[ed] to support a claim of standing.”

For more information on DEC’s endangered species regulations, contact Christopher Amato.

Existing sources will have three years to comply with the new emissions limits.  State permitting authorities may grant individual sources an additional year to comply under certain circumstances.

The rule also includes revisions to the New Source Performance Standards; these revisions apply to new coal- and oil-fired power plants and set standards for emissions of particulate matter, sulfur dioxide, and nitrogen oxides.

EPA’s web page on the rule may be found here; a press release is available here. In addition, EPA has prepared, broken down by state, a list of facilities that it anticipates will be covered by the new air toxics rules.

For additional information, contact Ed Roggenkamp.

Jennifer regularly works with landowners, developers, consultants and engineers to successfully guide development projects through environmental review processes under the National Environmental Policy Act (NEPA), the State Environmental Quality Review Act (SEQRA) andNew York City’s Environmental Quality Review (CEQR).   She frequently advises clients with respect to remediation of contaminated sites and brownfield redevelopment, and has litigated claims for recovery of remediation costs under the federal Superfund Law (CERCLA), the federal hazardous waste law (RCRA), and the New York State Navigation Law.   Jennifer also has extensive experience in federal, state, and local permitting processes, including those of the Environmental Protection Agency (EPA), the Army Corps of Engineers, the New York State Department of Environmental Conservation (DEC), the New York State Office of General Services, the New York State Department of State and the City of New York.