Envirosphere

On February 25, 2009, the New York State Energy Research and Development Authority (NYSERDA) proposed a spending plan for an estimated $525 million in proceeds from CO2 allowance auctions by the Regional Greenhouse Gas Initiative (RGGI). Under the proposed three-year spending plan, the money would be divided among 20 different energy efficiency and renewable energy programs in five sectors. The largest amount, 44%, would be spent on programs in the residential, commercial and industrial sector. About 20% of the funding would go to the electric power supply and delivery sector, about 18% would go to the transportation sector, and about 2% would go to the sustainable agriculture and bioenergy sector. The remaining funds would be available for multi-sector programs. About 75% of the funds would be used for programs that reduce greenhouse gas (GHG) emissions, while the remaining 25% would support programs with long-term investment horizons.

The plan includes six criteria the state would use to select which programs get funding:

(1) the program must be cost-effective and must maximize the quantity of carbon equivalents reduced per program dollar invested;

(2) the technology and investment must have long-range potential to reduce GHG emissions in New York;

(3) the program must have the potential to reduce the cost of achieving the emission reduction goals of the CO2 trading program;

(4) the program must create other benefits for New York, such as creating jobs, leveraging capital investment in New York to promote economic development, providing health and environmental benefits, and enhancing capacity to further reduce GHG emissions;

(5) the program should help reduce the disproportionate cost burden and harmful environmental impacts on low-income families and environmental justice communities; and

(6) the relative need for these funds based on availability of other funding sources for the targeted activities.

According to the proposed plan, NYSERDA expects the state to save about $196 million in energy costs over three years as a result of the programs funded by RGGI proceeds. It also projects an estimated three-year fuel savings of 10.6 trillion Btu. In addition, NYSERDA projects that the energy programs funded by these proceeds will reduce CO2 emissions by 1.1 million tons over three years.

A copy of the plan is available at http://www.nyserda.org/RGGI/RGGIdraftoperatingplan.pdf.

On February 25, 2009, several upstate municipalities that obtain drinking water from the Hudson River sued General Electric and the EPA to halt the dredging of polychlorinated biphenyls (PCBs) from the river until they are provided with an alternative water source. The lawsuit, which was filed in the Northern District of New York, seeks an injunction to stop the PCB dredging project, which is scheduled to begin in May 2009. The municipalities are seeking full funding for an alternative water supply before the dredging begins for the full duration of the project. The complaint alleges that the dredging will result in increased PCB levels and pose a threat to human health. The plaintiffs include the towns and villages of Stillwater, Waterford, and Halfmoon, as well as the county of Saratoga. Pursuant to a recent consent order between GE and EPA, the company agreed to pay most of the cost for construction of the water lines to Waterford and Halfmoon and for the construction of a granular activated carbon system for the Town of Stillwater. But the alternative water supply will only be available if EPA determines that the dredging results in contamination of existing water supplies. The complaint alleges that the EPA’s failure to provide an alternative water supplied for Stillwater constitutes unequal treatment, is arbitrary and capricious, and lacks a rational basis. The lawsuit makes similar claims regarding EPA’s decision not to pay the full cost of an alternative supply for Waterford and Halfmoon prior to and for the duration of the project. Stillwater v. General Electric Co., 09 Civ. 0228 (N.D.N.Y, filed Feb. 25, 2009).

Yesterday, the U.S. Supreme Court held, in a 5-4 decision, that environmental advocacy groups cannot challenge federal regulations on public lands unless they can prove they are themselves threatened by the proposed rules.

After the U. S. Forest Service (USFS) approved a salvage sale of timber on 238 acres of fire-damaged federal land, several environmental organizations filed suit to enjoin the USFS from applying its regulations exempting small timber sales from the notice and comment process it uses for more significant land management decisions. The district court granted a preliminary injunction prohibiting the sale, and the parties then settled their dispute as to the sale. Although the court concluded that the sale was no longer at issue, it nonetheless proceeded to adjudicate the merits of their challenges, invalidating several regulations, including the notice and comment provisions. The Ninth Circuit affirmed the determination.

The majority reversed, holding that the organizations lacked standing to challenge the regulations still at issue absent a live dispute over a concrete application of those regulations. The majority held that in limiting the judicial power to “cases and controversies,” Article III restricts itself to redressing actual or imminently threatened injury to persons that are contrary to law. Thus, the organizations could only demonstrate standing if application of the regulations would affect them in such a manner. According to the majority, the organizations could not identify any application of the invalidated regulations that threatened imminent and concrete harm to their members’ interests. Given that they voluntarily settled the lawsuit, the organizations were not under threat of injury from the project. The affidavit submitted in support of standing failed to establish that any member of the organizations has concrete plans to visit a site where the challenged regulations are being applied in a manner that will harm that member’s interests. Additional affidavits that were submitted to demonstrate standing were submitted after judgment had already been entered and were thus untimely.

The dissent, written by Justice Breyer, disagreed with the majority’s “imminence” requirement. The dissent contended that a threat of future harm might be realistic even if the plaintiff could not specify precise times or dates when that harm would take place, citing the Court’s recent decision in Massachusetts v. EPA, where it held that Massachusetts had standing to complain of EPA’s failure to determine whether to restrict carbon dioxide emissions even though the harm would likely not occur for several decades.

The full decision is available at http://www.law.cornell.edu/supct/html/07-463.ZS.html

On March 9, 2009, DEC released a report that finds that New York’s vapor program is the most proactive such program in the nation. The report states that in 2005, the state decided to re-open hundreds of pollution cases to determine whether new science could shed light on old cleanups, taking on the task of tracking down whether chemical vapors were lingering at these sites and posing threats to public health. The report states that, three years later, DEC has made significant progress in tracking down and evaluating more than 400 sites around the state. DEC targeted 421 sites to check for chemical vapors; the state now has launched investigations at all of them. Thus far, 147 investigations have been completed. Of those, DEC found that 19 required mitigation (ventilation systems) to alleviate vapors discovered on-site or in neighboring buildings, 46 required monitoring only and 82 needed no further action. In addition, mitigation has been determined necessary at 11 sites where investigations are still ongoing. “Vapor intrusion” refers to the process by which volatile chemicals move from a source below the ground surface (such as contaminated groundwater or contaminated soil) into the indoor air of overlying or adjacent buildings. Over the last decade, science about vapor intrusion has developed dramatically. Vapors can enter buildings in two different ways. In rare cases, vapor intrusion is the result of groundwater contamination which enters basements and releases volatile chemicals into the indoor air. In most cases, vapor intrusion is caused by vapors from contaminated materials migrating through the soil directly into basements or foundation slabs. DEC and the Department of Health (DOH) developed a joint strategy to evaluate the vapor intrusion pathway at all of the remedial sites that had been previously addressed through the Superfund, brownfields or other cleanup programs in the state. That generated the list of 421 sites to be investigated. For sites where mitigation is needed, this generally means installing a ventilation system inside buildings to move vapors to the outside where they disperse and are no longer a concern. This has occurred at 30 sites total -- 19 completed investigations, 11 ongoing. DEC Commissioner Pete Grannis pointed out that DEC now investigates for vapor intrusion as a regular part of its remediation projects. More information about this report is available at: http://www.dec.ny.gov/regulations/2588.html.

On March 11, 2009, DEC issued a draft policy allowing greenhouse gas emissions to be included in the state’s environmental review of large-scale projects. The proposed policy, which was published in the March 11, 2009 Environmental Notice Bulletin, provides guidance designed to help DEC staff consider greenhouse gas emissions and energy use when conducting environmental reviews of new projects.

Environmental reviews are conducted under the State Environmental Quality Review Act (SEQR). It requires that the “lead agency” designated to review a project identify and assess actions for their potential adverse environmental impacts, and in certain cases, develop an environmental impact statement (EIS) and propose mitigation strategies.

The guidance includes a menu of design measures that can mitigate greenhouse gas emissions, such as energy-efficient construction, integration of renewable energy technologies, promotion of alternative transportation modes, and waste reduction.

The proposed policy is available at http://www.dec.ny.gov/permits/52508.html or http://www.dec.ny.gov/enb/20090311_not0.html. There will be a 30-day public comment period ending on April 10, 2009. Written comments should be sent to John Marscholik, NYS DEC, Office of Climate Change, 625 Broadway, Albany, NY, 12233. Comments can also be sent via e-mail to: climatechange@gw.dec.state.ny.us.

On March 9, 2009, the Long Island Power Authority (LIPA) announced the launch of its Smart Meter demonstration program. Smart Meters allow energy consumers to monitor and reduce energy usage, increase reliability and encourage energy efficiency by facilitating smarter end-user technologies. LIPA has allocated $3 million for smart meters in its 2009 capital budget and $5 million in 2010.

According to LIPA, smart metering technology is an important first step in modernizing Long Island’s electric grid and is consistent with New York Governor David Paterson’s recently announced “45 by 15” program, which establishes a goal for the state to meet 45 percent of its electricity needs through improved energy efficiency and renewable sources by the year 2015. The smart metering pilot project will involve the installation of smart meters for commercial and residential customers and will provide LIPA with information on how smart metering technology will benefit its customers.

LIPA will test a number of functions, including (1) the ability to collect meter information using the new technology, (2) the ability to share meter information with customers in near real time, (3) the ability to provide pricing signals to customers, (4) the ability to detect system conditions, including load and usage along the system, (5) the ability to remotely send control signals to equipment situated along the distribution system, and (6) the feasibility of various communications schemes and technologies. Through a secured website, smart meters will allow LIPA customers to see how much electricity they are using and at what rate, allowing them to have a better understanding of their usage and encouraging them to lower their demand and become more energy efficient.

LIPA owns the retail electric transmission and distribution system on Long Island and provides electric service to more than 1.1 million customers in Nassau and Suffolk counties and the Rockaway Peninsula in Queens. LIPA is the second largest municipal electric utility in the nation in terms of electric revenues, third largest in terms of customers served and the seventh largest in terms of electricity delivered.

Additional information about this demonstration program is available at http://www.lipower.org.

The staff of the Adirondack Park Agency recently put forth a proposal that would allow for a streamlined and expedited process for the siting of small-scale residential and commercial wind turbines up to a height of 125-feet within the park. The proposal, which has now been submitted for public comment, will likely be considered at the APA’s meeting in April.

The proposal states that turbines must blend in with the surroundings so as to be “substantially invisible” consistent with the Agency’s policy on the siting of telecommunications towers. This blending is to be accomplished with consideration to design, size, location, and color of the turbines. The proposal also limits blade diameter to no more than 25 feet, and the towers must be setback at least 150 feet from property line boundaries.

The review criteria requires that permit applications have the following characteristics:

(1) the wind turbines must be consistent with the information contained in the application;

(2) they must be in conformance with the Agency’s “Policy on Agency Review of Proposals for New Telecommunications Towers and Other Tall Structures in the Adirondack Park”;

(3) they cannot require additional significant detailed engineering or environmental studies to more fully demonstrate that there will be no undue adverse impacts on important visual resources of the Park;

(4) they cannot have an undue adverse impact upon the natural, scenic, aesthetic, ecological, wildlife, historic, recreational or open space resources of the Park;

(5) they cannot adversely affect historic or archeological resources or rare, threatened or endangered species; and

(6) they must be capable of meeting the conditions contained within the General Permit and as stated in “Permit Conditions” of the Certification form.

The proposal is available at http://www.apa.state.ny.us/Mailing/0903/Regulatory/GP%202009G-1%20Permit%20for%20Small%20Scale%20Wind%20Turbines%203-3-09.pdf.

On March 13, 2009, the New York State Department of Transportation (DOT) and the New York State Energy Research and Development Authority (NYSERDA) announced funding for a dozen transportation sector proposals that seek to reduce greenhouse gas emissions and the use of petroleum fuel products.

According to these agencies, the “Sustainable Transportation Systems” solicitation attracted a variety of proposals that reduce vehicle miles traveled (VMT) and enhance the state’s economy and quality of life. Funding for projects ranging from freight-handling in Metropolitan New York area and in the New York State Canal corridor, to several local vehicle- and ride-sharing proposals will be awarded through contracts. The proposal sites range from Riverhead in Suffolk County to Buffalo in Erie County and include major travel corridors in between.

According to NYSERDA, the research gained through this effort will complement Governor David Paterson’s Renewable Energy Taskforce recommendations to promote the efficient use of petroleum in the transportation sector. That report calls for a 10 percent reduction in VMT from projected levels in 10 years. An interagency team, including NYSERDA, DOT, and DEC is considering technologies and strategies to be demonstrated through the contractors participating in this joint funding program.

Specific information about the proposal funding is available at http://www.nyserda.org/Press_Releases/2009/PressRelease20091303.asp.

On March 16, 2009, DEC released a handbook entitled Conserving Natural Areas and Wildlife in Your Community: Smart Growth Strategies for Protecting the Biological Diversity of New York’s Hudson River Valley. The guidebook provides a roadmap for municipalities to use their local powers to protect valuable natural resources. It includes “How They Did It” profiles of numerous Hudson Valley communities that already have consulted successfully with DEC to protect their natural areas, wildlife habitat and water bodies.

Eight years ago, through the Hudson River Estuary Program, DEC began helping Hudson Valley communities take local action to protect their important natural areas and wildlife. Since then, more than 80 towns, villages and cities in the Hudson Valley have mapped habitats, taken training, or adopted plans and local laws. The new handbook provides these examples to assist others who are looking for models.

The mission of DEC’s Hudson River Estuary Program is to conserve the natural resources of the river and its watershed, promote full public use and enjoyment of the river and clean up the pollution that affects our ability to use and enjoy it. The publication of Conserving Natural Areas and Wildlife in Your Community implements the Hudson River Estuary Action Agenda goal: to conserve plants and animals of the Hudson River Valley by partnering with municipalities to create and enhance local programs to conserve high quality wildlife habitat.

The book can be downloaded at http://www.dec.ny.gov/lands/50083.html.

On March 4, 2009, in Wyeth v. Levine, the U.S. Supreme Court issued a decision rejecting federal preemption in a failure to warn product liability claim involving a prescription drug. The Court held that the state tort claim at issue did not conflict with the Federal Food, Drug, and Cosmetic Act (FDCA), and therefore was not preempted.

The case involved an injectable anti-nausea drug. The labeling warned that, “due to the close proximity of arteries and veins in the areas most commonly used for intravenous injection, extreme care should be exercised to avoid perivascular extravasation or inadvertent intra-arterial injection.” The labeling further indicated that “pain, severe chemical irritation, severe spasm of distal vessels, and resultant gangrene requiring amputation are likely under such circumstances.” The plaintiff received an intravenous injection of the drug in April 2000 through an IV-push, where the drug is injected into an intravenous line already in place. The plaintiff eventually developed gangrene, necessitating amputation of her arm.

The plaintiff argued that the labeling was inadequate because it either should not have allowed or should more strongly have warned against administration of the drug through an IV-push. The drug company contended that FDA had directed it to use this particular warning and had rejected a different warning on intra-arterial injection and thus the plaintiff’s failure to warn claims were preempted. The federal district and appellate courts rejected this defense and the Supreme Court affirmed.

First, the Court rejected the argument that the company could not comply with both state and federal law, holding that FDA’s regulations allowed the company to change the labeling even though new regulations made it clear that it was only permitted to do so based on “newly acquired information.” The Court made several points to support this holding. First, it found that the company could have analyzed adverse event reports regarding gangrene and amputations accumulating over the years, and those analyses would have constituted “newly acquired information.”

The Court also rejected the argument that the plaintiff’s state law claim interfered with FDA’s regulatory objectives, disagreeing that FDA regulations impose both a floor and a ceiling regarding drug labeling, finding that Congress had not intended such preemption because it had amended the FDCA without extinguishing state pharmaceutical cases.

On March 19, 2009, DEC announced than an extensive undercover investigation into the poaching, smuggling and illegal sale of protected reptiles and amphibians led to charges against 18 individuals for 14 felonies, 11 misdemeanors and dozens of violations.

The investigation, dubbed “Operation Shellshock,” uncovered a lucrative, international black market for poaching and selling native, protected New York species – turtles, rattlesnakes and salamanders – through the internet and at herpetological shows. Investigators found thousands of New York turtles being laundered through “middlemen” in other states, then getting shipped overseas for meat and other uses. More than 2,400 individual turtles, snakes and salamanders were involved in the documented crimes, with DEC currently holding nearly 400 live animals in evidence.

The undercover investigation began in 2007, coordinated through DEC’s Bureau of Environmental Crimes Investigation (BECI). Investigators found New York’s timber rattlesnakes and wood turtles being shipped out of state and out of the country to support high-end collectors. They found thousands of snapping turtles laundered through a Louisiana turtle farm, then shipped illegally to China. They found poachers stealing turtle eggs as soon as they were laid. And they successfully traded with a smuggler from Canada to recover a population of endangered Massasauga rattlesnakes – nabbing him in a Niagara Falls parking lot with a van stuffed with 33 rattlesnakes in hidden compartments.

As a result of Operation Shellshock, the U.S. Fish and Wildlife Service and the U.S. Attorney's Office for the Western District of New York are pursuing Federal Lacy Act charges against a Maryland meat processor for the knowing purchase of illegally trapped New York State snapping turtles, and against a Louisiana turtle farm operator for the knowing purchase of illegally taken New York State snapping turtle hatchlings and the export of such hatchlings to China.

New York prohibits the illegal commercialization of wildlife; a law enacted in 2006 gives protection to all reptiles and amphibians. The state also bans unlawful possession of protected species.

On March 18, 2009, the Regional Greenhouse Gas Initiative (RGGI) completed its third auction of CO2 allowances, offering allowances for emissions of 33.7 million tons of CO2. On March 20, RGGI announced that 31.5 million CO2 allowances available for immediate use sold for a clearing price of $3.51. Another 2.17 million allowances were sold at a clearing price of $3.05, but they cannot be used until 2012. The auction raised a total of $117 million, which the 10 RGGI states will use for energy efficiency and renewable energy programs.

Forty-two entities, mostly electricity generators, purchased allowances for 2009 and 12 entities purchased allowances for 2012. Each allowance permits a company or other entity to emit one ton of CO2. According to RGGI, 78% of the 2009 allowances and 93% of the 2012 allowances were purchased by electricity generators. The $3.51 clearing price is about 3.8% higher than the $3.38 clearing prices of the second auction and 14% higher than the $3.07 clearing price of the first action. The minimum reserve price for allowances has remained at $1.86 for all three auctions.

Additional information about the third auction is available at http://rggi.org/docs/Auction_3_News_Release_MM_Report.pdf.

On March 18, 2009, New York City Mayor Michael Bloomberg signed into law three bills on fuel standards for diesel generators, wetlands construction permits, and private solid waste transfer station fees.

The first bill (Intro. No. 684-A) requires the use of ultra low sulfur diesel fuel in electronic generators at street events and film shoots. The law seeks to minimize air pollution on streets from diesel generators but mandating the use of fuel with a sulfur content of no more than 15 parts per million.

The second bill (Intro. No. 919-A), requires coordination of the New York City Buildings Department and DEC before approval of construction documents for work in mapped wetlands, coastal erosion areas, and special flood hazard areas. Specifically, the law prohibits the approval of construction documents by the Buildings Department unless the applicant can establish that the requisite approvals have been issued by state and other agencies that have jurisdiction over wetlands.

The third bill (Intro. No. 840), increases the annual fee for permitted solid waste transfer stations. Fees from transfer stations that handle non-putrescible waste (i.e. waste that does not produce foul odors when decomposing), rise from $3,500 to $7,000, and fees for a permitted putrescible solid waste transfer station increase from $6,500 to $13,000.

The text of these laws is available at http://www.nyccouncil.info/html/legislation/legislation.cfm.

On March 23, 2009, two New York power utilities announced the completion of a feasibility study for a public-private plan to mount an offshore wind farm off New York City and Long Island. The Long Island Power Authority and Con Edison said that the study found that the proposed offshore wind farm’s interconnection of up to 700 megawatts (MW) of wind power would be feasible with upgrades to their respective transmission systems. The farm would be located at least 13 miles off the Rockaway Peninsula in the Atlantic Ocean. It would likely be designed for 350 MW of generation, with the ability to expand it to up to 700 MW, given it the potential to be one of the largest offshore wind facility in the United States.

The concept for the offshore wind project stems from the work of the New York State Renewable Energy Task Force. In the second phase of the wind project, the companies said that they will work with the state, the New York Power Authority, New York City, the Metropolitan Transportation Authority, and the Port Authority of New York and New Jersey to issue a request for expressions of interest for offshore wind development (RFEI). The RFEI serves as a precursor to a request for proposals to be issued later this year. Additional next steps include creating a website on the project’s progress and working with the New York State Energy Research and Development Authority (NYSERDA) to develop a meteorological tower to assess wind strength in the proposed project location.

The feasibility study is available at http://www.lipower.org/newscenter/pr/2009032009-windstudy.pdf.

On March 15, 2009, the journal Nature Geocscience published a study entitled “Model Projections of Rapid Sea Level Rise on the Northeast Coast of the United States” which found that climate change is expected to cause the sea level along the northeastern U.S. coast to rise almost twice as fast as global sea levels during this century, putting New York City at greater risk for damage from hurricanes and winter storm surge.

According to the study’s author, Jianjun Yin, a climate modeler at the Center for Ocean-Atmospheric Prediction Studies (COAPS) at Florida State, there is a better than 90% chance that the sea level rise along this heavily populated coast will exceed the mean global sea level rise by the year 2100. The rising waters in this region can be attributed to thermal expansion and the slowing of the North Atlantic Ocean circulation because of warmer ocean surface temperatures. The study is the first to reach that conclusion after analyzing data from 10 state-of-the-art climate models, which have been used for the Intergovernmental Panel on Climate Change (IPCC) Fourth Assessment Report.

The researchers found that the rapid sea-level rise occurred in all climate models whether they depicted low, medium or high rates of greenhouse-gas emissions. In a medium greenhouse-gas emission scenario, the New York City coastal area would see an additional rise of about 8.3 inches above the mean sea level rise that is expected around the globe because of human-induced climate change. Thermal expansion and the melting of land ice, such as the Greenland ice sheet, are expected to cause the global sea-level rise. The researchers projected the global sea-level rise of 10.2 inches based on thermal expansion alone. The contribution from the land ice melting was not assessed in this study due to uncertainty.

Considering that much of the metropolitan region of New York City is less than 16 feet above the mean sea level, with some parts of lower Manhattan only about 5 feet above the mean sea level, a rise of 8.3 inches in addition to the global mean rise would pose a threat to this region, especially if a hurricane or winter storm surge occurs. Potential flooding is just one example of coastal hazards associated with sea-level rise. There are other concerns as well. The submersion of low-lying land, erosion of beaches, conversion of wetlands to open water and increase in the salinity of estuaries all can affect ecosystems and damage existing coastal development.

A copy of the report is available for a fee at http://www.nature.com/ngeo/journal/vaop/ncurrent/abs/ngeo462.html.