Envirosphere

Plan now to attend the Fall Meeting of the Environmental Law Section

Friday, October 1 to Sunday, October 3, 2010
The Otesaga
60 Lake Street
Cooperstown, NY 13326

Join your friends and colleagues at the 2010 Fall Meeting of the Environmental Law Section being held October 1-3 at The Otesaga Hotel in Cooperstown.

The Otesaga Hotel is a magnificent, Federal-style structure with an imposing front portico supported by massive 30-foot columns. It occupies 700 feet of lakefront on the southern shore of Lake Otsego, the famed "Glimmerglass" of James Fenimore Cooper’s novels.

This year’s program will offer up to 8.5 MCLE credit hours for experienced attorneys and up to 5 MCLE credit hours for newly admitted attorneys.

On August 16, 2010, New York City Mayor Michael Bloomberg signed a law requiring lower sulfur content in No. 4 heating oil and a minimum of 2 percent of biodiesel fuel. The legislation (Intro. No. 194-A) was passed by the New York City Council on July 29, 2010 after Mayor Bloomberg and Council Speaker Christine Quinn announced agreement on a strategy to reduce pollutants in the city’s heating oil. The legislation was enacted as part of PlaNYC, New York City’s long-term sustainability plan.

No. 2 heating oil accounts for 70 percent of heating oil use in New York City. The law will limit the sulfur content of No. 4 heating oil to 1,500 parts per million beginning Oct. 1, 2012. The biodiesel content provision also takes effect on that date. Regulations implementing the law will be promulgated by the New York City Department of Environmental Protection (DEP).

On August 5, 2010, New York City and DEC entered into a memorandum of agreement that creates the New York City Brownfield Cleanup Program. The program will be carried out by the Mayor’s Office of Environmental Remediation (OER), which was created in June 2008.

The agreement, in addition to giving the City the authority to manage brownfields cleanups, provides for state-city coordination of investigations and remediation. It also offers liability incentives to encourage developers to use the program.

Under the agreement, the City program will allow owners and developers to investigate, clean up, and redevelop properties with light-to-moderate levels of contamination, under City oversight. The program seeks to end “self-directed cleanups,” or cleanups managed by developers without government oversight. The City is offering funds under a Brownfield Incentive Grant (BIG) program announced in June 2010.

On August 4, 2010, a group of 48 oil companies and other related defendants entered into a $42 million settlement with 27 water districts and towns on New York’s Long Island and Florida over alleged contamination of water supplies by the gasoline additive methyl tertiary butyl ether (MTBE).

The plaintiffs alleged that MTBE, an oxygenate used in gasoline for many years, leaked from underground storage tanks and contaminated nearby water supplies. The 48 defendants included Chevron Corp., CITGO Petroleum Co., Getty Petroleum Marketing Inc., Hess Corp., Lukoil Americas Corp., Shell Oil Co., Sunoco Inc., and Unocal Corp. The agreement leaves only a few cases unresolved in the multidistrict litigation.

The Town of Plainview was the first of the 23 Long Island drinking water authorities to sue the companies , beginning in 2003. Four Florida plaintiffs also joined in the settlement. Many of the claims in the multidistrict litigation were settled in May 2008, when 153 public water providers reached agreement with the defendants. In one of the few cases that went to trial, ExxonMobil Corp. was found liable in the amount of $105 million in October 2009 for damages alleged by New York City for drinking water well contamination in Queens.

Starting in 1979, MTBE was used in low levels in gasoline to replace lead as an octane enhancer and was later used at higher concentrations in some gasoline to fulfill the oxygenate requirements set by Congress in the 1990 Clean Air Act Amendments for cleaner-burning gasoline. According to EPA, MTBE has been detected in groundwater throughout the country. In re Methyl Tertiary Butyl Ether (MTBE) Products Liability Litigation (S.D.N.Y, notice of joint motion to dismiss dated Aug. 4, 2010).

On August 5, 2010, DEC announced a plan to update the state’s regulations to strengthen protections for endangered and threatened species and to provide developers, local officials and others with a clear regulatory framework.

The draft proposals would establish criteria for the listing and de-listing of species and requirements for restoration and recovery plans. The proposals would also establish time lines, procedures and standards for reviewing applications for construction projects and other projects that might impact endangered and threatened species. The proposals would define the “taking” of a protected species to include the adverse modification of habitat – conforming to New York court decisions interpreting the term. The regulations also call for applicants to develop a mitigation plan that results in a net conservation benefit to the listed species.

Construction projects that might result in the “incidental take” of an endangered or threatened species (i.e. the taking of a protected species or the harming of a species’ habitat while engaged in an otherwise lawful activity) must complete a DEC permitting process before going forward. While current state regulations do not specify procedures or standards for reviewing such projects, the proposed regulations will clarify the permitting process.

For the first time, state regulations also will spell out criteria for listing or de-listing a species. Examples of listing criteria include: (1) if the current number of viable and self-sustaining populations of the species statewide is not sufficient to ensure its continued survival; (2) if threatened destruction, modification or curtailment of the species' habitat or range within the state threatens the continued survival of the species, and (3) the absence of existing regulatory mechanisms to protect the species or its habitat. Examples of de-listing criteria include: (1) if the current number of viable and self-sustaining populations of the species statewide is increased to a level sufficient to ensure continued survival of the species in the state; (2) other regulatory mechanisms have been adopted to adequately protect the species or its habitat; and (3) the sources of population declines, such as disease or habitat loss, have been addressed and abated.

Invasive species are a threat to New York's biodiversity that has been judged second only to habitat loss. New York's rural and urban forests are increasingly threatened by a host of invasive, exotic tree insects and diseases, many of which are unstoppable killers. Unfortunately, human use, enjoyment, and involvement in our environment can aid the spread of invasive species. Firewood, enjoyed by countless campers, around the state is one such example. DEC regulations now prohibit the import of firewood into New York unless it has been heat treated to kill pests. The campers, hunters and other users of our forests, unwittingly, may actually be moving eggs or larvae of these pest species, which may be hidden on or under the bark or buried deep within the logs in the form of the firewood - in the trees killed by these insect pests species.

DEC staff have observed boaters and campers checking into state campgrounds with trunk loads, or boat loads, of firewood being brought in, often from far distant states. DEC staff now keep daily logs of everyone that has brought wood in, and this log sheet is shared with Forest Rangers, who then seek out these campers and provide educational information about this ever growing threat. Once transported to new locations, eggs may hatch, or larvae may mature and emerge to attack host trees in and around the camping areas. Too often, these new infestations are not detected until numerous trees start to die, and the infestation has spread beyond our ability to eradicate it or control it effectively. Camping is an important and beloved activity, and the scale of the potential invasive species becomes clear considering that DEC manages 42 campgrounds in the Adirondack Park and 8 campgrounds in the Catskills, with over 1,000,000 visitor nights each season.

On July 22, 2010, Emerald ash borer occurrences were confirmed in Bath, NY (Steuben County), and in Saugerties, NY (Ulster County). The Emerald Ash Borer causes significant ecological and economic damage. In the Lake States, and specifically in Detroit, this exotic invasive caused the loss of over 70,000 trees. This species has also spread throughout Michigan, and into Ontario, Illinois, Indiana, and Ohio. In numerous occasions, the Emerald Ash Borer has shown up far removed from previous known infestations, in "outlier" occurrences, at or near campgrounds and forest recreation areas. The Department fears that the Saugerties infestation may be the worst such infestation in New York's history.

Invasive species will continue to be a concern well into the future, and the threat is real and significant. New York has been devastated by Chestnut blight, European gypsy moth, Dutch elm disease, and Beech bark disease. Recently, Department staff discovered Asian long-horned beetles, Hemlock wooly adelgids, Pine shoot beetles, and Sirex woodwasps infesting New York's urban and rural forests and killing thousands of trees.

See 6 NYCRR § 192: Forest Insect Disease Control, and specifically §192.5 Firewood restrictions to protect forests from invasive species. Please visit the DEC's Website for answers to Frequently Asked Questions regarding the regulatory prohibition on the import of firewood into New York.

On June 28, 2010, electronics industry groups agreed to settle and dismiss a federal lawsuit against New York City stemming a recycling law that required door-to-door pickups of used electronics from consumers. The Consumer Electronics Association and other groups moved to dismiss the case following the signing of an electronic-waste law in New York preempting the New York City law.

Under the state law, which was signed May 28, 2010, manufacturers must accept one piece of electronic waste from consumers with the purchase of a similar piece of electronic equipment, beginning April 1, 2011. Manufacturers are also required to take back their market share of e-waste, based on a formula developed by DEC. Electronics Association v. New York City (S.D.N.Y, settlement filed June 28, 2010).

On July 6, 2010, EPA announced proposed regulations that will target power plant pollution that drifts across the borders of 31 eastern states and the District of Columbia. The proposed regulations would replace the 2005 Clean Air Interstate Rule (CAIR), which the D.C. Circuit Court of Appeals ordered EPA to revise in 2008 (see North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008)). The court allowed CAIR to remain in place temporarily while EPA finalized the replacement rule.

The proposed rule is intended to help downwind states attain EPA’s national ambient air quality standards for ozone and particulate matter. Along with local and state air pollution controls, the new proposal, called the transport rule, is designed to help areas in the eastern United States meet existing national air quality health standards. The proposal would add three new states--Oklahoma, Kansas and Nebraska, to the areas covered by the rule.

The proposed regulations would require further sulfur dioxide (SO2) and nitrogen oxide (NOx) emission reductions from electric generating units with a capacity of 25 megawatts or more. EPA estimates that the rule will affect 5,000 fossil-fuel fired units, which account for 84% of nationwide SO2 emissions and 73% of nationwide NOx emissions. In 2014, affected states would have an aggregate cap of 2.6 million tons of annual SO2 emissions and a cap of 1.4 million tons of annual NOx emissions.

The proposal contains an EPA preferred option and two additional options. Under all three options, EPA would set an emissions budget for each covered state. Under EPA’s preferred option, the agency would allow for intrastate trading of allowances but only limited interstate trading, and each state would still be required to meet its cap by limiting emissions from sources within its borders. Under the second option, EPA would not allow any interstate trading of emissions, although it would allow some intrastate trading among power plants. Under the third alternative, EPA would not allow either interstate or intrastate trading of emissions. Instead, EPA and state regulatory bodies would apply command and control emission limits for each power plant, possibly allowing some averaging among units at each station.

According to EPA, sources will achieve emission reductions by operating existing control equipment more frequently, switching to lower sulfur coal, and/or installing new emission control equipment. The agency claims that by 2014, the rule would reduce SO2 emissions by 71% over 2005 levels, while NOx emissions would drop by 52%. SO2 and NOx react in the atmosphere to form fine particle pollution and ground-level ozone (smog), which are linked to widespread illnesses and premature deaths. Compared to CAIR, the proposal would reduce an additional 1 million tons of SO2 per year by 2012 and 100,000 tons more of NOx by 2014.

According to the agency, the proposed rule would yield more than $120 billion in annual health benefits in 2014, including avoiding an estimated 14,000 to 36,000 premature deaths, 23,000 nonfatal heart attacks, 21,000 cases of acute bronchitis, 240,000 cases of aggravated asthma, and 1.9 million days when people miss school or work due to ozone- and particle pollution-related symptoms. EPA estimates that the annual cost of compliance with the proposed rule will be $2.8 billion in 2014.

On July 9, 2010, the Regional Greenhouse Gas Initiative (RGGI) released a report that found that the volume of futures trading declined significantly in the fourth quarter of 2009 for carbon dioxide allowances available under the RGGI trading scheme.

The report, which analyzed the secondary market for RGGI allowances, said futures trading declined from 319 million allowances in the third quarter of 2009 to 127 million in the fourth quarter. In addition, a large portion of the volume shifted from allowances available for use in 2009 to those available for use in 2010, according to the report. Allowances available for use in 2009 can be used in future years as well. The report said RGGI futures prices declined by 8 percent from the third to the fourth quarter for allowances available for use in 2009. The futures price was $2.25 at the end of the fourth quarter.

According to the report, the number of participants in the market for RGGI allowance derivatives was relatively constant throughout the fourth quarter, with about 34 companies holding large positions. In the most recent RGGI auction on June 9, 2010, allowances available for immediate use sold for a clearing price of $1.88 per allowance and those available for use after 2013 sold for $1.86 per allowance. Each allowance allows the holder to emit 1 ton of carbon dioxide. Under RGGI, emissions in 10 states—New England states plus Delaware, Maryland, New Jersey and New York—are capped at 188 million tons for each year from 2009 through 2014. Emissions will then be reduced by 2.5 percent per year over the next four years.

On July 6, 2010, EPA announced proposed regulations that will target power plant pollution that drifts across the borders of 31 eastern states and the District of Columbia. The proposed regulations would replace the 2005 Clean Air Interstate Rule (CAIR), which the D.C. Circuit Court of Appeals ordered EPA to revise in 2008 (see North Carolina v. EPA, 531 F.3d 896 (D.C.Cir. 2008)). The court allowed CAIR to remain in place temporarily while EPA finalized the replacement rule.

Along with local and state air pollution controls, the new proposal, called the transport rule, is designed to help areas in the eastern United States meet existing national air quality health standards. The proposed regulations would require further SO2 and NOx emission reductions from electric generating units with a capacity of 25 megawatts or more. EPA estimates that the rule will affect 5,000 fossil-fuel fired units, which account for 84% of nationwide SO2 emissions and 73% of nationwide NOx emissions.

The proposal contains an EPA preferred option and two additional options. Under all three options, EPA would set an emissions budget for each covered state. Under EPA’s preferred option, the agency would allow for intrastate trading of allowances but only limited interstate trading, and each state would still be required to meet its cap by limiting emissions from sources within its borders. Under the second option, EPA would not allow any interstate trading of emissions, although it would allow some intrastate trading among power plants. Under the third alternative, EPA would not allow either interstate or intrastate trading of emissions. Instead, EPA and state regulatory bodies would apply command and control emission limits for each power plant, possibly allowing some averaging among units at each station. According to EPA, sources will achieve emission reductions by operating existing control equipment more frequently, switching to lower sulfur coal, and/or installing new emission control equipment.

The agency claims that by 2014, the rule would reduce SO2 emissions by 71% over 2005 levels, while NOx emissions would drop by 52%. SO2 and NOx react in the atmosphere to form fine particle pollution and ground-level ozone (smog), which are linked to widespread illnesses and premature deaths. According to the agency, the proposed rule would yield more than $120 billion in annual health benefits in 2014, including avoiding an estimated 14,000 to 36,000 premature deaths, 23,000 nonfatal heart attacks, 21,000 cases of acute bronchitis, 240,000 cases of aggravated asthma, and 1.9 million days when people miss school or work due to ozone- and particle pollution-related symptoms. EPA estimates that the annual cost of compliance with the proposed rule will be $2.8 billion in 2014.