January 4, 2012
In a December 1, 2011 decision, the Supreme Court, Albany County, dismissed on procedural grounds two lawsuits challenging newly promulgated regulations by the New York State Department of Environmental Conservation (DEC) governing permits for projects that may affect species listed as endangered or threatened under State law (6 NYCRR Part 182). Among other things, the new regulations set forth application requirements, review procedures and standards for “incidental take” permits that must be obtained for any activity that may result in a “take” of a listed species. The regulations define “take” to include both direct taking by killing, capturing, harassing or similar acts, and indirect taking through the adverse modification of occupied habitat. The two lawsuits, Association for a Better Long Island et al. v. New York State Department of Environmental Conservation and Town of Riverhead, et al. v. New York State Department of Environmental Conservation (Index No. 1268-11) were consolidated for decision.
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.
December 21, 2011
EPA has announced the issuance of a final rule limiting emissions of mercury and other air toxics, including metals and acid gases, from coal- and oil-fired power plants. The rule applies to new and existing power plants larger than 25 megawatts that burn coal or oil to produce electricity for sale through the national electric grid. It does not apply to natural gas-fired power plants unless the fuel for those plants is produced by gasifying coal or oil.
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.
December 19, 2011
We are very pleased to announce that Jennifer Coghlan has become an SPR Partner.
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.
December 16, 2011
In a 5-2 decision issued on December 15, 2011, New York’s highest court upheld Department of Environmental Conservation (“DEC”) regulations authorizing the cleanup of state Superfund sites to “pre-disposal conditions, to the extent feasible.” The ruling also affirms that DEC can and will consider technical feasibility and cost-effectiveness, as well as the intended use of a subject property, when setting cleanup requirements at approximately 950 contaminated sites in New York State.
The New York State Superfund Coalition (the “Coalition”), a group consisting of owners of inactive hazardous waste disposal sites, challenged DEC’s regulations as exceeding the authority derived from the state Superfund law, which calls for the “complete cleanup” of sites through the elimination of the “significant threat” posed by hazardous wastes. The Coalition argued that the regulations’ reference to “pre-disposal conditions” went beyond this statutory authority, and allowed DEC to order the removal of “every last molecule” of contamination and to return sites to “pre-Columbian” conditions.
The Court of Appeals rejected this claim, stressing that the stated goal of a “complete cleanup” is “aspirational” because that goal “can be constrained by technological feasibility, cost-effectiveness, and procedural due process, among other things.”
Before initiating a remedial investigation at a state Superfund Site, DEC must first determine that site presents a “significant threat” to public health or the environment. In his dissent from the Court of Appeals’ decision, Judge Eugene Pigott wrote: “[I]t is clear from the statutory language that the Legislature intended to limit the reach of the remedial program to the ‘elimination of the significant threat’ … [and that] DEC’s interpretation of [this provision] goes beyond what any competent Legislature would permit.”
Both the majority opinion and the dissent, however, emphasize that DEC cannot make arbitrary or draconian remedial decisions without such decisions being subject to challenge under the rules. DEC has recognized in practice and in its regulations that it may not be feasible to return industrial sites to a state of nature given the complexity of issues presented by such sites, and that technical and economic feasibility are, therefore, appropriate considerations under the Superfund scheme. The Court of Appeals found that the challenged regulations were consistent with DEC’s current practice of making remedial decisions that involve less than complete removal, provided that the remedial action protects public health and the environment.
For more information on the remediation of inactive hazardous waste sites in New York, contact Mark Chertok, Michael Bogin, or Jennifer Coghlan.
December 14, 2011
On November 23, 2011, the New York Department of Environmental Conservation (“DEC”) proposed regulations implementing the Water Resources Protection Act, a new law requiring a DEC permit for water withdrawals exceeding 100,000 gallons per day. In addition to setting forth permitting procedures, the regulations contain additional exceptions and critical deadlines for incorporating existing water usage requirements into the new regulatory scheme.
Under existing state requirements, agricultural, commercial and industrial facilities that withdraw more than 100,000 gallons per day or surface or groundwater must file annual reports with DEC, but those facililties had not previously been required to apply for a withdrawal permit. To ease the transition into the new permitting program, parties who have reported their water withdrawals to DEC by February 15, 2012 would qualify for an “initial permit” under the proposed rules, streamlining the permitting process and incorporating their maximum reported withdrawal capacity. Initial permits would also be considered “minor projects” under the Environmental Conservation Law, so they are less likely to require permit hearings or to trigger review under the State Environmental Quality Review Act (“SEQRA”).
DEC also proposed new exemptions to the permitting requirements. The Water Resources Protection Act contains six statutory exemptions, including groundwater pumping at certain contaminated sites, and closed loop, standing column, or other non-extractive geothermal heat pumps. DEC’s regulations would add eight more exemptions, such as withdrawals from the Atlantic Ocean or Long Island Sound, ballast water necessary for lawful vessel activity, and certain construction and maintenance activities that do not impact the capacity of a water withdrawal system.
Notably, while the statute authorizes DEC to establish “quantitative standards that maintain stream flows protective of aquatic life,” DEC has not chosen to propose such standards at this time. However, DEC will consider “significant individual or cumulative adverse impacts” on aquatic life in its water withdrawal permitting decisions.
DEC has estimated that approximately 400 industrial, commercial, and agricultural users would be covered by the new permitting requirements, including high volume hydraulic fracturing operations, which can require millions of gallons of water at a single well. DEC is accepting public comment on the proposed regulations until January 22, 2012.
For more information on water issues or the proposed withdrawal permitting scheme, contact Michael Bogan or Michael Lesser.
December 13, 2011
On Wednesday, February 15, 2012, SPR partner Michael Bogin will be an instructor in a seminar addressing legal issues faced by New York landscape architects. Mr. Bogin’s presentation will cover federal and states rules governing stormwater management. For more information about the seminar, which is offered by HalfMoon LLC, please click here.
December 12, 2011
We are pleased to announce that Christopher Amato has joined our firm and will be working in our newly opened Albany, NY office. Chris was most recently Assistant Commissioner for Natural Resources at the New York State Department of Environmental Conservation. He has practiced environmental law for more than 30 years, both in private practice and in government service. His public service includes having been Deputy Chief of the Environmental Protection Bureau in the New York State Attorney General’s Office, Senior Litigator in the Environmental Law Division of the New York City Law Department, and Senior Attorney with the Adirondack Park Agency. In both his private practice and government service, Chris has tried complex litigation, including important hazardous waste matters. Chris has also worked as a biologist for the Northwest Indian Fisheries Commission and the U.S. Fish and Wildlife Service.
Chris will again be focusing on environmental litigation and natural resources issues, including hydrofracking, endangered species, wetlands and marine fisheries. He also will be working on environmental, cultural resource, and treaty rights issues and litigation on behalf of several Indian Nations in New York.
With Michael Lesser and Chris in our Albany office, we have an efficient and cost effective method of representing our clients in hazardous waste litigation and to better serve clients on a broad range of issues.
The Albany office is located at 90 State Street, Suite 700, Albany, NY 12207. The office phone number is (518) 591-4663.
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