Envirosphere

On September 22, 2009, DEC announced the launch of a new initiative to certify lodging establishments as “green” for employing environmentally friendly and sustainable practices. Forty-three hotels and inns have signed on for the certification process.

The Green Lodging Certification program combines environmentally sound business practices with financially feasible solutions. Under the program, hoteliers focus on saving energy, trimming waste disposal, using water efficiently and conserving resources, while improving their bottom line. Candidates will be evaluated in energy efficiency, environmental management, pollution prevention and resource conservation. Green credentials will be certified by the Audubon GreenLeaf program. Based on environmental performance, a hotel could be assigned one to five green leaves.

The certification program is part of a larger initiative to support and market sustainable tourism throughout New York, highlighting the state’s diverse natural resources as tourism destinations, connecting travelers to green businesses and assisting New York’s tourism businesses to go green.

The New York State Green Hospitality and Tourism Partnership, a combination of state agencies, business associations, and academia, worked together to initiate the certification program. Earlier this year, the partnership helped launch the “Green Restaurant Certification” process. The Partnership offers technical assistance to targeted industries and works to establish green benchmarking in the various areas including hospitality, restaurants, outfitters and transportation. The Partnership also recognizes other comparable third-party certification organizations for hotels and restaurants, including Green Seal, a not-for-profit certifier. The New York State Pollution Prevention Institute, which provides direct assistance to state businesses and organizations to green their operations and enhance their bottom line, will conduct the program in conjunction with the Partnership, providing technical assistance and site visits.

In September 2009, New York City released its second annual comprehensive greenhouse gas inventory. In April 2007, New York City released its first-ever comprehensive greenhouse gas inventory, setting the benchmark from which the City’s carbon reduction targets are based: a 30% reduction in citywide emissions below 2005 levels by 2030 and a 30% reduction in municipal emissions below fiscal year 2006 by 2017.

The September 2008 update was released in compliance with Local Law 22 of 2008, allowing the City to begin to track progress it is making toward its goals. The report contains both the citywide inventory for calendar year 2008 and inventories of municipal government operations covering both fiscal and calendar year 2008.

The 2008 inventory found that New York City as a whole was responsible for 53.3 million metric tons of carbon dioxide equivalent (CO2e) emissions, and City government was responsible for 3.8 million metric tons. These figures include emissions from energy consumption (including emissions related to power generation outside the city), vehicle traffic and transit operations within the City, and emissions from landfills, wastewater treatment facilities, and the electricity distribution network.

On a per capita basis, the inventory found that the average New Yorker was responsible for 6.4 metric tons of greenhouse gas emissions in 2008, compared with 19.7 for the average American, excluding non-local emissions such as the agriculture sector. The inventory also found that both citywide and municipal government emissions declined from 2007 to 2008. The largest portion of this change was due to milder weather, which required less heating and cooling of buildings, and which offset increased emissions citywide due to population growth and a continued expansion of building stock. The carbon intensity of the City’s electricity also declined, as it did in 2007, because the City was able to import more clean electricity from upstate New York than in 2007 due to new transmission lines to Long Island freeing up capacity for the City. Including these factors, citywide carbon emissions decreased by 3.5% and municipal carbon emissions decreased by 2.6% below 2007 levels.

According to the inventory, Citywide per-capita energy consumption declined from 2007 to 2008, after taking out the estimated impact of weather. An increase in emissions from transit service and decrease in per-capita vehicle miles traveled also demonstrates this trend, as transit service increased to meet the demand of more New Yorkers using the City’s extensive public transit network. Counting only those factors, citywide emissions declined by 1.3% and municipal emissions declined 1.2% below 2007 levels. Reductions in the City’s municipal emissions, beyond those driven by weather or changes to the power supply fuel mix, indicate that the City’s efforts to meet its PlaNYC goal of a 30% reduction in municipal government emissions by 2017 have begun.

On October 9, 2009, DEC announced the availability of a new set of draft guidance documents to assist the public and DEC in the preparation and review of tidal wetlands permits. DEC developed these guidance documents to help in addressing the many challenges involved in balancing environmental concerns with development pressures. These draft guidance documents clarify and interpret some of the terminology used to evaluate tidal wetlands permit applications, as well as provide guidance on average setback, shoreline structure replacement and maintenance dredging.

New York State recognized the importance of tidal wetlands and sought to ensure their protection by passing the Tidal Wetland Act in 1973. Tidal wetlands line much of the saltwater shore, bays, inlets, canals, and estuaries of Long Island, New York City, and Westchester County. T hey also line the Hudson River in Westchester and Rockland counties, upstream to the salt line. With the increased concerns about climate change and sea level rises, tidal wetlands will increasingly be important in protecting property and human lives from the impacts of coastal flooding and extreme events such as hurricanes.

Beginning in 1974, DEC established the official Tidal Wetlands Inventory - a set of maps delineating and classifying all the tidal wetlands in New York. These maps are used by DEC and other municipal agencies to control and manage the development, filling and dredging of areas in and around New York’s tidal wetlands. Areas adjacent to tidal wetlands often carry many of the same or similar critical attributes and, in addition, provide a valuable buffer for the wetlands. For that reason, the adjacent buffer area is also protected under the Tidal Wetlands Act. DEC’s maps provide the public with information about where protected wetlands and buffer areas are found, enabling landowners and local governments to plan accordingly. In addition to the maps, the proposed guidance documents will help enhance the public’s understanding of tidal wetland regulations.

DEC is also actively developing additional guidance documents for the Tidal Wetland Land Use Regulations. These are slated for public release in early 2010. The current tidal wetlands regulations are available at http://www.dec.ny.gov/regs/2485.html.

On September 30, 2009, DEC released a draft environmental impact statement (EIS) that contains conditions and criteria for natural gas drilling activities in the Marcellus Shale formation in the state. The Supplemental Generic EIS establishes safety measures and mitigation strategies that operators would need to follow to obtain permits for drilling. The measures apply to horizontal drilling and high volume hydraulic fracturing, a process also known as “fracking.”

The Marcellus Shale formation extends from Ohio and West Virginia northeast into Pennsylvania and southern New York. Under the draft EIS, permit applicants would be required to disclose the composition of so-called frac fluid and the percentage of chemicals to be used for each well. Operators would also be required to complete a checklist and certification form to ensure technical compliance with permits prior to commencing hydraulic fracturing.

The EIS contains a number of mitigation measures aimed specifically at protecting the New York City watershed, including the creation of buffer zones around reservoirs and water bodies in the watershed. Under the requirements, wells proposed within a 1,000-foot corridor of water tunnels or aqueducts would require special approvals from the state and city. DEC accepted comments until November 30, 2009.

Other provisions in the EIS include: (1) the establishment of special requirements and restrictions for activities in primary and principle aquifer areas; (2) a requirement that operators prepare plans for mitigating greenhouse gas emissions, visual impacts, and noise impacts prior to commencing operations; and (3) a requirement that operators follow stringent water withdrawal protocols.

The New York City Department of Environmental Protection (DEP) promulgated new rules governing the City’s Asbestos Control Program.

Subchapter C of the new rules, which is to be phased in between October 13, 2009 and January 13, 2010, sets forth new requirements for asbestos projects notification, permitting and recordkeeping. Subchapter C requires building owners to obtain an asbestos abatement permit from DEP for asbestos projects that require a permit from the New York City Department of Buildings (DOB).

To obtain an asbestos abatement permit, the building owner or a representative must submit certain construction documents, and in some cases a workplace safety plan prepared by a licensed and registered architect or engineer, to DEP. The documents must then be approved by the DEP Asbestos Technical Review Unit before DEP will issue the permit.

Workplace safety plans must include, among other things, floor plans showing the locations of asbestos project work areas, components of the fire alarm or fire protection system that have been deactivated or disengaged, obstructed or removed exit signage and lighting, and obstructed means of egress or required exit. Workplace safety plans must also specify mitigation measures that will be undertaken to mitigate compromised fire protection services or means of egress.

The new rules also prohibit DOB from issuing permits until asbestos projects are complete and DEP has issued an asbestos project completion form. In addition, a registered design professional must perform a final inspection and file an inspection report confirming that all work is complete before DEP will issue the project completion forms.

Further, the new rules require investigators, contractors and building owners to maintain various records regarding asbestos inspections and projects. Failure to comply with any provision of the rules can subject building owners, contractors or air monitoring companies to civil and criminal enforcement actions or penalties.

On October 15, 2009, the New York State Public Service Commission (PSC) approved programs to help reduce peak electric demand and emissions in Consolidated Edison Company of New York, Inc.’s (Con Edison) service territory, which will help lower long-term utility costs borne by ratepayers and emissions in communities where certain power plants exist.

The PSC’s approval of the demand response program specifically targets at least 50 megawatts in the Greenwood, Brooklyn area, considered to be an environmental justice community. In addition, as a result of the PSC’s decision, no diesel-fired generation will be allowed within one-half mile of the generating stations located in environmental justice communities.

The PSC noted that Con Edison’s system experiences peak demand for only a small number of hours a year and only during the summer months. By decreasing the highest peaks, the infrastructure needed and therefore, the expense of meeting peak demand could be significantly reduced.

In response, Con Edison proposed four new demand response pilot programs:

(1) Commercial System Relief Program for large commercial or industrial customers that can curtail load or bring emergency generation to reduce demand by a minimum of 50 kW on an individual customer basis, or 100 kW through aggregations. Customers able to curtail load when called upon will receive capacity reserve payment, and conversely if a customer is called and does not respond, the customer will be assessed a penalty. The program will target at least 50 megawatts in the Greenwood load packet, with a total program cap of 200 megawatts in the company’s service territory. Outside of environmental justice communities, caps on how much distributed generation can participate in the program will depend on the specific distributed generation technology employed.

(2) Residential Smart Appliance Program for residential customers allows Con Edison to control a participating customer’s electric appliances (if equipped with curtail-able technology) through the use of open communication devices. Customers will have the ability to override the company’s control of their appliances when events are called. The program is aimed at reducing load by 240 kW. Customers will receive a $200 rebate for each Smart Appliance or Home Area Network and may receive additional payments of $10-$25 based on their response to tests and actual events.

(3) Critical Peak Rebate Program is a 3.8 megawatt pilot program for all customer classes. Participants who reduce their usage by at least 1 kW and up to 24 kW will receive a monthly payment of $1/kW-hr for reductions made during events. Participants who reduce 25 kW or more will receive an end of year payment of $1.50/kW-hr for reductions during events.

(4) Network Relief Program is targeted at specific networks in need of system relief. Requests for proposals and an open enrollment process will be used for relief in certain hours, in specific networks, over a specific number of years, in an attempt to defer the need to build additional transmission and distribution infrastructure in particular networks. The company proposes to initially enroll 5 megawatts in this program.

The experience gained by Con Edison from implementing these programs would enable demand response reductions to be used in company planning after gaining an understanding of customer behavior in the pilots. If the pilots are successful at reducing peak demand, Con Edison would then reduce its load forecast and, eventually, adjust its infrastructure needs in subsequent years.

The PSC initiated a proceeding in early 2009 to separate demand response from the Energy Efficiency Portfolio Standards proceeding to give more emphasis to peak demand reduction activities. Given the significant benefits in pursuing demand response, Con Edison was asked to file a plan with cost-effective demand response initiatives in its service territory, including programs to reduce system coincident peak, network peaks, and to reduce operation of generating units in environmental justice areas in order to help reduce emissions.

On October 14, 2009, Urban Green, the New York City chapter of the U.S. Green Building Council, released a report entitled “Cost of Green in NYC.” The report found no significant difference in a cost-per-square-foot basis between green and non-green buildings, based on analysis of luxury high rise residential and commercial interiors projects. In analyzing the data, the study also discovered that New York City Leadership in Energy and Environmental Design (LEED) projects exhibit similar patterns of LEED credit achievement; certain credits are commonly achieved and others are rarely pursued.

In particular, the report found that there is no statistically significant difference in construction cost between LEED and non-LEED projects. Visual examination of this data set indicates that projects with various levels of LEED certification are distributed throughout the range of costs with no apparent pattern. The distribution of commercial interiors projects appeared to follow that of the residential buildings, but the pattern was not statistically clear.

Surprisingly, the report found that the highest levels of LEED may have been achieved at a lower cost than other levels of LEED. The report also found that soft costs associated with LEED certification were not substantial in terms of overall project cost. The median cost of LEED design fees was $0.56/sf, the median cost of LEED documentation was $0.30/sf, and the median commissioning cost was $1.55/sf. The range in LEED fees was considerable, with some projects, for example, adding nothing for LEED design fees and others adding as much as $6.62/sf.

The report also found that New York City LEED projects exhibit similar patterns of credit achievement: over 75% of New Construction (NC) projects surveyed in New York City achieved 25 common LEED points, and over 75% of Commercial Interiors (CI) projects achieved 24 common LEED points. These sets of commonly achieved credits may be unique to dense urban environments with strong public transportation infrastructure; construction projects throughout the rest of the United States typically incorporate a somewhat different set of sustainable design features.

On October 15, 2009, New York Governor David A. Paterson proposed to use $90 million in proceeds from Regional Greenhouse Gas Initiative (RGGI) auctions to close New York’s budget deficit, instead of for energy conservation and clean energy programs as originally planned. Paterson’s proposal is part of a package of measures intended to reduce the state’s budget deficit by $5 billion over two years. The plan requires approval by the State Legislature, which is currently in recess.

Paterson released his plan only two days after signing a bill to allocate $112 million in RGGI proceeds for green jobs and energy conservation. He said the state would still provide $112 million for the jobs and conservation programs. New York is expected to take in $220 million through 2010 in proceeds from the RGGI auctions of carbon dioxide emissions allowances, according to Paterson. Under the memorandum of understanding signed by the 10 RGGI states, the states agreed to use proceeds from RGGI auctions for energy conservation and clean energy programs.

On October 21, 2009, EPA Region 2 announced that the computer manufacturer Samsung has agreed to pay $205,000 and stop making claims that its “antimicrobial” keyboards inhibit germs and bacteria.

According to EPA, the company failed to register its netbook and notebook laptop computer products with EPA, in violation of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The agency stated that the claims made on the company’s labels and promotional material would render the products pesticides, requiring the registration.

EPA stated that in addition to paying the fine, Samsung will provide a certification that it has complied with FIFRA by removing all pesticidal claims made in connection with the sale and distribution of the computer products. The company has also notified retailers and distributors to remove any pesticidal claims from labels, promotional brochures, and Internet or web-based content for the products.

On October 27, 2009, the New York Court of Appeals held in Matter of Save the Pine Bush Inc. v. Common Council of the City of Albany, that a person who uses and enjoys a natural resource more than members of the public in general has standing to challenge the environmental impacts of nearby development projects. In the closely watched case, the Court held that those who live in or adjacent to environmentally sensitive areas are not the only people who can challenge a project's effects under the State Environmental Quality Review Act (SEQRA). But the judges cautioned in their ruling that standing in environmental cases for interested parties is not automatic and that more than “perfunctory allegations of harm” are required.

Judge Robert S. Smith, writing for the Court, stated that “[s]triking the right balance in these cases will often be difficult, but we believe that our rule— requiring a demonstration that a plaintiff's use of a resource is more than that of the general public— will accomplish that task better than the alternatives.” While the Court affirmed their standing to challenge the SEQRA review process under which the City of Albany approved the construction of a new hotel near a pine barrens preserve, the judges ruled that the review was properly conducted.

The Court held that its ruling on the standing issue was both in keeping with its own finding in a 1991 landmark case, Society of Plastics Industry, Inc. v. County of Suffolk, 77 N.Y.2d 761, and with the U.S. Supreme Court opinion in Sierra Club v. Morton, 405 U.S. 727 (1972). In the latter case, the Supreme Court had held that a generalized interest was not enough to confer standing, but that an injury to a plaintiff's “aesthetic and environmental well-being” would be sufficient. Addressing the city’s environmental review process, the Court said the municipality was not obligated to consider “every possible environmental issue” related to the hotel’s construction, including its effect on a few rare animal and plant species discovered relatively recently in the pine barrens, the judges concluded. The Pine Bush preserve is also home to the Karner Blue butterfly, an endangered species.

The Court unanimously agreed on the outcome of the case—that the municipality’s SEQRA review was adequate—but two judges faulted what they characterized as the majority’s broad view on standing. A concurring opinion by Judge Eugene F. Pigott Jr. concluded that the Court should observe what he said was the more traditional rule that limited standing to residents of environmentally sensitive lands or adjacent properties. “The majority's holding, in my view, reinterprets much too broadly the special harm requirement that has been the cornerstone of our standing jurisprudence in land use cases,” Judge Pigott wrote in an opinion in which he was joined by Judge Susan Phillips Read.