Envirosphere

On April 22, 2009, New York City Mayor Michael Bloomberg announced a six-point legislative and jobs development plan to increase the energy efficiency of New York City’s government, commercial and residential buildings.

The plan, consisting of four local legislative proposals and two City program initiatives, was developed as part of PlaNYC. The energy efficiency measures are intended to reduce greenhouse gas emissions from buildings in the City by 5 percent and are projected to create 19,000 construction jobs.

Under the plan, legislation would be enacted to create a City energy code for building renovations, closing a loophole in state law that allows projects to skirt the state Energy Code for many renovations. Legislation would also require buildings to undertake periodic energy audits and improvements, lighting upgrades, and an annual benchmark analysis of energy consumption.

On April 21, 2009, the New York State Independent System Operator (NYISO) released a report finding that the state’s power plants have significantly reduced emissions of sulfur dioxide (SO2), nitrogen oxides (NOX), and carbon dioxide (CO2) in the nine years since the state deregulated its electricity market.

According to the report, SO2 emissions declined by 77 percent from 1999 to 2008, while NOX emissions declined by 61 percent over the same period. CO2 emissions declined by 28 percent as well. The report is based on Clean Air Markets data from the EPA. The report stated that 7,000 megawatts of more efficient and less polluting new sources of power have come into service over the past nine years, including 1,200 megawatts of wind energy.

NYISO operates New York’s electricity grid, administers the state’s wholesale electricity markets, and conducts reliability and resource planning for the state’s electricity system.

On May 4, 2009, the U.S. Supreme Court issued its decision in Burlington Northern and Santa Fe Railway Co. v. United States, dramatically narrowing the scope of CERCLA liability by limiting the application of both arranger liability and joint and several liability. Shell Oil Company sold and delivered agricultural chemicals to B&B, an agricultural chemical distribution business, where the chemicals spilled and leaked in the course of B&B’s operations. The Ninth Circuit found Shell liable because (a) spills occurred every time Shell delivered the product; (b) Shell arranged for the delivery by common carrier; (c) Shell changed its delivery process to require the use of large storage tanks that were more likely to leak; (d) Shell provided incentives for B&B to improve the handling of the product; (e) Shell reduced the purchase price by an amount related to product losses from leakage; and (f) Shell distributed a manual for safe operation of the tanks B&B used to hold the product.

By an 8-1 vote, the Court reversed the Ninth Circuit. First, it held that Shell could not be held liable as a CERCLA arranger even though it know that its product may be leaked, stating “knowledge alone is insufficient to prove that an entity ‘planned for’ the disposal, particularly when the disposal occurs as a peripheral result of the legitimate sale of an unused, useful product.” Second, the Court found a reasonable basis for apportioning liability with respect to railroads that owned a portion of the property where B&B had operated. The district court had apportioned liability based on percentages of land ownership, periods of ownership, and rough estimates of the volume of releases, and assigned the railroads a 9% share. The Ninth
Circuit rejected that apportionment and imposed joint and several liability on the railroads, finding that apportionment had to be based on “adequate records” detailing the amount of
leakage attributable to activities on certain parcels, how that leakage traveled to and contaminated the soil and groundwater, and the costs of cleanup. Because such detailed information had not been presented at trial, the Ninth Circuit had found the railroads and Shell jointly and severally liable. The Supreme Court found that the district court’s ultimate allocation of liability was supported by the evidence and comported with traditional tort law apportionment principles.

On April 29, 2009, the New York State Energy Research and Development Authority (NYSERDA) announced that it has approved a plan for how the state will spend approximately $525 million in proceeds from the Regional Greenhouse Gas Initiative (RGGI) auctions over the next three years.

Under the plan, funding will be provided for energy efficiency and renewable energy programs in five sectors. Forty-five percent of the funding will go to the residential, commercial and industrial sectors; 18 percent will go to the transportation sector; 20 percent will go to the electric power supply and delivery sector; 2 percent will go to the sustainable agricultural and bioenergy sector; and the remaining funds will go to multi-sector programs.

Among the criteria NYSERDA will use in determining how programs will obtain funding are the cost-effectiveness of the program and whether the technology has long-range potential to reduce greenhouse gas emissions in the state. Approximately 75 percent of funding will be used for programs that reduce greenhouse gas emissions in the short term, while the remaining 25 percent will support programs with long-term objectives.

Earlier, RGGI announced that it will offer 33 million carbon dioxide emissions allowances for sale at its fourth auction on June 17, 2009. The minimum reserve price will remain at $1.86, but RGGI will consider changing the reserve price before its fifth auction.

On May 5, 2009, New York Governor David Paterson signed an Executive Order to phase out the purchase of single-use bottle water by state agencies by May 1, 2010. The Order will ban the purchase of single-use water bottles and certain larger bottles for water consumed at state facilities. State agencies are required to develop a plan over the next year to phase out the bottles and provide alternative drinking water sources such as tap water fountains and dispensers.

Paterson said that the move was designed to cut down on the solid waste created by water bottles and the energy used to manufacture and transport bottled water. Under the Order, the Office of General Services will identify options to make tap water available to patrons free of charge at food establishments at state facilities.

The Order exempts state facilities from the ban in cases where there is no alternative to bottled water, when bottled water is needed for public health reasons, and when compliance would conflict with a pre-existing contractual obligation.

On May 5, 2009, Governor Paterson announced the creation of a state-funded technology consortium to research and develop energy storage technology, including batteries for plug-in hybrid vehicles. Paterson said the state will provide $25 million to establish the New York Battery and Energy Storage Technology Consortium (NY BEST), which will be overseen by the New York State Energy Research and Development Authority (NYSERDA).

Funding will be derived from the sale of nitrogen oxide emissions allowances through the Clean Air Interstate Rule (CAIR). Among the projects that the consortium will undertake at a new battery testing laboratory are the development of batteries for hybrid vehicles and systems that can store energy from wind and solar generators.

On May 11, 2009, New York City Mayor Michael Bloomberg signed a bill establishing a local brownfields cleanup program and codifying the legal basis for a City Office of Environmental Remediation (OER). The bill (Intro. No. 21-A), which passed unanimously on April 22, 2009, is aimed at facilitating remediation of contaminated sites in the City that are not covered by New York State’s Brownfields Cleanup Program (BCP).

According to a New York City Council Environmental Protection Committee report, as many as 7,600 acres in the City may be contaminated, posing serious public health risks and blocking sites from development that could put them back on city tax rolls. OER was created in June 2008 by the Bloomberg Administration. The law modifies the City Charter to codify the status of OER, located within both the Mayor’s Office of Operations and the New York City Department of Environmental Protection (DEP). Under the law, the director of OER is charged with developing and administering the local brownfields cleanup program and promulgating rules for applications, fees, reporting, and participation. Cleaning up all contaminated land in the city is one of the 10 main goals of PlaNYC.

The bill was the product of collaboration between the City Council, the Bloomberg Administration, and advocates including New Partners for Community Revitalization and the New York City Environmental Justice Alliance. Eligibility requirements in the BCP exclude many City brownfields sites from participation in the state program because they are contaminated by an off-site source or contaminated with fill material.

As part of the City cleanup plan, the law includes a process for educating and engaging communities where brownfield development is most needed, as well as funding for community-based organizations to explore possible brownfields opportunities.

After many years, the cleanup has begun.

Here's an article from the New York Times that ran this past Saturday.

On May 15, 2009, General Electric (GE) began the dredging of polychlorinated biphenyls (PCBs) from the upper Hudson River after many years of delays, litigation, studies, hearings, and public debate over the $700 million project. The EPA marked the start of the project with state officials in a ceremony at the river’s edge in Fort Edward, New York, about 50 miles north of Albany.

In all, 1.8 million cubic yards of sediment and 113,000 kilograms of PCBs will be removed from the river in two phases over a six-year period. Under the first phase, which will last until October 2009, 265,000 cubic yards of sediment and 20,300 kilograms of PCBs will be removed from a six-mile stretch of the river in Fort Edward. The results of the first phase will then be reviewed before the second phase begins. The project will involve removing sediment from the river and then transporting it by barge to a nearby de-watering facility. The water will be treated at the plant and the PCBs will be removed and then transported by train to a facility in Andrews, Texas.

GE, which released about 1.3 million pounds of PCBs into the river from two manufacturing plants, is responsible for the dredging under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Under the consent decree outlining GE’s role in the cleanup, the company is not explicitly required to undertake the second phase of the project. The consent decree was modified earlier this year to require GE to pay most of the costs for constructing water lines for three upstate towns that use water from the river.

The company once vigorously opposed the project, but has been working with EPA for a number of years. The dredging project, which is believed to be the largest of its kind, has been delayed numerous times since former EPA Administrator Christine Whitman signed a final record of decision on Feb. 1, 2002.

The history of the project dates to the Reagan administration. A 200-mile portion of the river was declared a superfund site by EPA in 1983 because of widespread contamination from PCBs. One year later, EPA decided to take no remedial action to clean up the river. EPA began a process of reassessing that decision in 1990. While the superfund site stretches from New York City to Hudson Falls, New York, the dredging will take place in a 40-mile stretch of the river north of Troy, New York.

On May 19, 2009, President Obama announced a major increase in automobile fuel economy standards and an initiative to impose for the first time national limits on greenhouse emissions from automobiles. The new fuel economy standards to be issued by the Department of Transportation (DOT) will require cars and light trucks to achieve a combined average of 35.5 miles per gallon in 2016, up from 25 miles per gallon in 2008. In addition, the EPA intends to propose a national carbon dioxide standard for vehicles under Section 202 (a) of the Clean Air Act, and the agency is considering a limit of 250 grams per mile in 2016, according to the Obama administration.

EPA and DOT have prepared a notice of intent to conduct a joint rulemaking to put the standards in place. According to the notice, the standards would begin with model year 2012 vehicles and would proceed until they are fully implemented in 2016. The new fuel economy standards will require cars to achieve an average of 39 mpg and light trucks 30 mpg by 2016. The current standards are 27.5 mpg for cars and 23.1 mpg for light trucks.

According to the White House, the standards will reduce greenhouse gas emissions by 900 million metric tons through 2016, the equivalent of shutting 194 coal-fired power plants or taking 177 million cars off the road. The standards were endorsed by the three major American automakers, several foreign makers, the United Auto Workers, and the governors of California, Michigan, and Massachusetts. According to the White House, the standards would achieve the same greenhouse gas emissions reductions in 2016 as would be achieved under emissions limits adopted by California, 13 other states, and the District of Columbia.