Envirosphere

In November 2009, DEC issued a notice that it has prepared a proposed Program Policy that outlines the procedures and circumstances under which it will issue an opinion on eligibility for participation in the Brownfield Cleanup Program (BCP) relative to real property within a Brownfield Opportunity Area (BOA) study area or designated BOA pursuant to General Municipal Law § 970-R.

Upon a request submitted in accordance with this policy, DEC will issue an eligibility opinion limited to whether such real property satisfies the definition of a “brownfield site” set forth at Environmental Conservation Law (ECL) § 27-1405(2). The evaluation will be performed in conformance with the applicable statute, regulations and BCP eligibility guidance. In further recognition of the beneficial role the BCP can play in advancing the goals of the BOA Program, DEC will provide for early BCP eligibility opinions relative to real property within a BOA study area or designated BOA, thereby facilitating the marketing, reuse and redevelopment of properties within the BOA Program. It will establish a process that is easy to use and available before a site owner or developer is prepared to propose an actual project or submit an application for participation in the BCP. An early eligibility determination under this policy will increase the certainty and predictability that developers need before investing in contaminated real property, and will reduce the time required to process an application when participation in the BCP is ultimately sought.

The procedures set forth in this policy document are intended for the use and guidance of both DEC personnel and those seeking a determination under the policy. The policy is not intended to create any substantive or procedural rights enforceable by any party in administrative or judicial litigation with DEC and DEC reserves the right to vary these procedures to address site-specific circumstances, and to revise them as it deems appropriate based on changes in law or its experience in implementing the policy.

In November 2009, DEC issued a notice that it has prepared a proposed Program Policy that sets forth the general terms and conditions for Brownfield Site Cleanup Agreements (BCAs) under the New York State Brownfield Cleanup Program (BCP). The terms and conditions set forth in this policy are in addition to the regulatory terms and conditions set forth at 6 NYCRR sections 375-1.5 and 375-3.5 and such other terms and conditions as may be set forth in the BCA. The application for inclusion into the BCP will require the party to acknowledge and agree to the general terms and conditions set forth in this guidance.

Legislation establishing the BCP (see Article 27, Title 14 of the Environmental Conservation Law [ECL]) requires DEC to execute a BCA prepared in accordance with ECL §27-1409 for the purpose of completing a brownfield site remedial program. The statute does not prescribe the time for execution of the BCA. To date, the time from DEC’s notice of approval of an application pursuant to ECL §27-1407(6) until the execution of a BCA has ranged from a few days to many months. In recognition of the benefit of timely execution of the BCA and the overall legislative intent of timely advancement of the remedial program, DEC will establish a BCA process that is more predictable and will shorten the time to finalize the BCA.

The procedures set forth in this policy are intended for the use and guidance of both DEC staff and those seeking to participate in the BCP. The policy is not intended to create any substantive or procedural rights enforceable by any party in administrative or judicial litigation with DEC unless, or until, such terms are incorporated into a site-specific BCA and DEC reserves the right to vary these procedures to address site-specific circumstances, and to revise them as it deems appropriate based on changes in law or its experience in implementing this policy.

On November 9, 2009, New York State Attorney General Andrew Cuomo announced that a manufacturer agreed to pay the state $2 million in reimbursement for hazardous waste cleanup costs at a Glen Cove, N.Y., Superfund site. The settlement with Pall Corp. of Port Washington, New York, a manufacturer of fluid filtration, separation, and purification products, covers a five-acre state Superfund site in Nassau County where the company’s aerospace division made filtration products from 1958 to 1971. The operations contaminated soil, groundwater, and surface water at the site and adjacent areas with toxic substances, including tetrachloroethylene and trichloroethylene. DEC designated the property as a state Superfund site in 1996, and Pall has performed interim cleanup under a DEC consent order. The state has now taken over site cleanup, and the settlement requires the company to pay reimbursement for current and future costs associated with completing the cleanup to a depth of 60 feet. DEC is investigating contamination at greater depths at the Glen Cove site, and the state could seek further reimbursement if more cleanup is needed.

In November 2008, DEC announced that an online version of the third edition of its State Environmental Quality Review Act (SEQRA) Handbook is available. The SEQRA Handbook provides agencies, project sponsors, and the public with a practical reference guide to the procedures prescribed by SEQRA--Article 8 of the Environmental Conservation Law. It addresses common questions that arise during the process of applying SEQRA. According to DEC, this edition of the Handbook entirely replaces the previous editions and reflects the SEQRA process as it now stands. It is based on court decisions which have molded the process and the most recent revisions to the statewide SEQRA regulations, Part 617 of Title 6 of New York’s Codes, Rules and Regulations.

In November 2008, DEC announced that it had issued Commissioner Policy CP-43, “Groundwater Monitoring Well Decommissioning Policy” and that the policy would take place on December 18, 2009. According to DEC, this Commissioner Policy states that environmental monitoring wells should be properly decommissioned when they are no longer needed and re-use by another program is not an option, or when their integrity is suspect or compromised.

Groundwater monitoring wells provide essential access to the subsurface for scientific and engineering investigations (including monitoring wells installed for leak detection purposes). To a degree, every monitoring well is an environmental liability because of the potential to act as a conduit for pollution to reach the groundwater. To limit the environmental risk, a groundwater monitoring well must be properly decommissioned when its effective life has been reached. This document provides procedures to satisfactorily decommission groundwater monitoring wells in New York State. This policy also pertains to other temporary wells such as observation wells, test wells, de-watering wells and other small diameter, non-potable water wells. It does not pertain to water supply wells.

According to DEC, the method for decommissioning will be determined based upon well construction and environmental parameters. The method selected must be designed to protect groundwater and implemented according to current best engineering practices while following all applicable federal, state and local regulations.

According to DEC, Groundwater Monitoring Well Decommissioning Procedures shall be maintained as an addendum to this policy. This policy is applicable to all DEC programs that install, utilize and maintain monitoring wells for the study of groundwater, except monitoring wells for landfills regulated under 6 NYCRR Part 360 decommissioned in accordance with those regulations and wells installed under the Oil, Gas and Solution Mining Law.

The proposed Commissioner Policy was published in the July 1, 2009 issue of the Environmental Notice Bulletin, which announced a 30 calendar day comment period pertaining to the proposed policy and the availability of the full text document for review. NYS DEC received comments during this public comment period and they were addressed.

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Cullen

Columbia Law School's Center for Climate Change Law has posted a Database of New York State Municipal Laws on Green Buildings, Alternative Energy, and Energy Effiiciency. A total of 372 laws are currently cataloged. The database is sorted by county, but it can also be sorted by subject matter or municipality. Only the most essential portion of each statute is summarized, but the unabridged statute can be accessed by clinking on the hyperlink provided.

The Center is now at work on drafting a model green building ordinance, drawing on the laws that have already been enacted. To assist in that effort, which is being undertaken in cooperation with Pace Law School, Michael Gerrard is interested in hearing from people about how their municipalities' green building ordinances have been working, and what lessons might be drawn for a model ordinance. If the database is missing any ordinances that should be included, please let Mike know so that he can add them.

The Center has also established an e-mail list for updates on new judicial decisions and other legal developments concerning climate change. Anyone who would like to be added to this list should send an email to Cullen Howe at cullen.howe@aporter.com.

In November 2009,the New York State Legislature passed Property Assessed Clean Energy (PACE) legislation. The bill was signed into law by the Governor on November 19, 2009.

The law allows municipalities to establish a PACE program in order to apply for more than $400 million in federal funds to issue as loans to qualifying homeowners and businesses to install energy efficient retrofits and renewable energy systems. Energy efficiency improvements contained in the legislation include window and door replacements, insulation and heating and cooling system upgrades. Renewable energy systems covered in the bill include solar, thermal, geothermal, wind and fuel cell technologies.

A PACE bond is a debt instrument (i.e. lien) where the proceeds are lent to property owners to financing energy efficiency retrofits who then repay their loans over 15-20 years via an annual assessment on their property tax bill. These bonds can be issued by municipal financing districts or finance companies. The PACE lien is senior in right to a mortgage, making them attractive to investors. The bill allows municipalities to create financing districts and to float bonds to investors to raise the money for the program.

On November 23, 2009, New York State Attorney General Andrew M. Cuomo reached an agreement with Fortuna Energy, Inc. that will allow customers who were misled and ended up extending their natural gas leases with the company to renegotiate their terms.

Fortuna is one of the largest natural gas exploration companies in New York and engages in a natural gas drilling technique called horizontal, high-volume hydraulic fracturing (“horizontal drilling”). To do so, these companies obtain leases from landowners which authorize them to conduct operations on the landowners’ properties, with a lease typically expiring after five years if no operations are ongoing on the property.

Beginning in April 2009, Fortuna sent letters to hundreds of landowners whose natural gas leases with the company were about to expire. These letters falsely stated that Fortuna had the right to extend these leases without the permission of the landowners. Specifically, Fortuna falsely claimed that the leases contained provisions that allowed Fortuna to put the lease on hold until the company could obtain the required horizontal drilling permits from DEC. In fact, most landowners’ leases contained no such provisions.

After setting forth these false claims, Fortuna’s letters then instructed landowners that if they did not agree to a three-year extension of the lease with a small percentage increase in royalty payments, the company would file a notice with the appropriate county clerk of records declaring that the term of the lease was halted and obtain a lien against the property. These liens prevented landowners from freely negotiating drilling rights with other companies.

The settlement also stops Fortuna from employing industry-prevalent misleading and deceptive tactics to secure leases from New York landowners. The company also agreed to pay $192,500 to the state in connection with the settlement. As a result of the Attorney General’s settlement, Fortuna has agreed to rescind the letters it sent to landowners. In addition, Fortuna will remove any liens placed on the land of New York property owner whose leases have expired and whose leases did not clearly disclose that they could be extended. Landowners who agreed to a lease extension as a result of Fortuna’s letter will be given the opportunity to cancel that extension. (New York State Attorney General’s Office Press Release Nov. 24, 2009).