Envirosphere

On March 2, 2010, EPA’s Region Two office announced that the Gowanus Canal in Brooklyn will be added to the superfund National Priorities List of the most hazardous U.S. waste sites. The listing was proposed in April 2009. The decision to list the heavily polluted industrial waterway, which runs through residential and commercial areas, was made despite an alternative plan offered by New York City officials and objections from some community members and the real estate developer Toll Brothers Inc.

According to the EPA, nine potentially responsible parties (PRPs) have been identified, and more are being sought. The energy utility National Grid is expected to be the first to settle, with an agreement on liability for natural gas plants expected by the end of March. Other PRPs include the City, the U.S. Navy, and Con Edison.

The canal, which is 1.8 miles long and 100 feet wide, has a long legacy of toxic pollution since it was built in the 1860s. It was lined with gas and coal facilities, chemical and concrete plants, oil refineries, and tanneries, and has been contaminated by untreated industrial waste, sewage, and runoff.

The designation followed meetings with government and elected officials, business representatives, representatives of civic organizations, and community members, as well as a review of more than 1,300 comments.

A real estate developer wanted to develop two parcels of land in the City of Rochester to include residential complexes, a marina, restaurants and a hotel. Most of the land was deemed wasteland during the early to mid-20th century and part of it was used as a City landfill and later as a wastewater treatment plant. The developer sought inclusion of the parcels into the state Brownfield Cleanup Program (BCP).

In November 2006, the developer filed two applications for admission into the BCP with DEC. DEC denied the applications on the ground that there was no reasonable basis to believe that contamination was complicating the redevelopment or reuse of the property and thus the parcels did not meet the definition of “brownfield site” in § 27-1405 of the Environmental Conservation Law. The developer subsequently commenced an Article 78 proceeding seeking to annul DEC’s determination. DEC moved to dismiss. The trial court granted the petition and directed DEC to admit the land into the BCP, holding that DEC failed to state its reasoning in concluding that the contamination was minimal and thus lacked a rational basis for its determination.

On appeal, the Appellate Division reversed, holding that DEC’s reasoning was reasonable. Specifically, the court cited a Court of Appeals decision in Riverkeeper, Inc. v. Planning Board of the Town of Southeast, 9 N.Y.3d 219 (2008), which held that “it is not the province of the courts to second-guess a reasoned agency determination or to invade the process by which such a conclusion is reached.”

On further appeal to the Court of Appeals, the Court reversed, holding that because the meaning of the definition of “brownfield site” is one of pure statutory interpretation, it did not have to defer to DEC’s application of the term. The Court concluded that “real property qualifies as a ‘brownfield site’ for purposes of acceptance into the BCP so long as the presence or potential presence of a contaminant within its boundaries makes redevelopment or reuse more complex, involved, or difficult in some way.” The Court stated that this low eligibility threshold is consistent with the statute’s legislative history. Thus, the Court held that the parcels of land were eligible for participation in the BCP, holding that the parcels met the statutory definition of a brownfield site given that it had contamination on the property and that the contamination complicated redevelopment of the property. Lighthouse Pointe Property Associates LLC v. New York State Dept. of Env. Conservation, 2010 N.Y. LEXIS 35 (Feb. 18, 2010).

On March 10, 2010, DEC issued a proposed policy to require the use of closed-cycle cooling technology by power plants and other industrial facilities that use large amounts of water for cooling purposes.

The proposed policy, which is subject to a 45-day public comment period, is designed to protect fish and other aquatic organisms that are injured or killed through impingement at the water intake system or entrainment through the cooling system. Pursuant to the policy, the state will consider a closed-cycle cooling system or its equivalent as the best technology available as required by the Clean Water Act.

The policy would apply to facilities that use 20 million gallons or more of water per day and require a permit under the State Pollutant Discharge Elimination System. Closed-cycle cooling technology recirculates water instead of discharging it after one use. According to DEC, a number of facilities in New York use a so-called once-through cooling process that withdraws water to condense the steam they use to spin turbines. The heated water is then returned to the waterway.

On March 16, 2010, EPA Region 2 gave preliminary approval to an application by New York State to establish a no-discharge zone throughout the 524-mile New York State Canal System. Final approval of the designation would mean that boats would be prohibited from releasing treated or untreated sewage into the water.

Currently, vessels are not restricted from discharging treated sewage from approved marine sanitation devices into the canal system, which includes the Erie, Cayuga-Seneca, Champlain, and Oswego canals, and Onondaga, Oneida, and Cross lakes. The EPA decision is subject to a 30-day public comment period.

On March 25, 2010, the Public Service Commission (PSC) approved more than $279 million over a five-year period for customer-sited renewable energy projects as part of the state’s Renewable Portfolio Standard (RPS) program. This funding will enable homeowners and businesses to install solar panels, fuel cells, wind turbines and other renewable energy devices. In addition, the PSC approved $150 million for large-scale solar photovoltaic, anaerobic digester and fuel cell projects in and around the lower Hudson Valley and the New York City metropolitan area.

The ratepayer-funded RPS initiative employs two programs to encourage the development of renewable energy, both of which are administered by the New York State Energy Research and Development Authority (NYSERDA). The bulk of the electricity is obtained through competitive procurements for large-scale renewable resources, known as the main tier. The customer-sited tier promotes smaller, self-generation facilities located at residences and businesses. Technologies eligible for participation in the customer-sited tier include solar photovoltaic, anaerobic digesters, fuel cells and small wind. The March 25 approval added solar thermal hot water to the list of eligible technologies. Funding amounts are as follows: solar photovoltaic ($144 million); anaerobic digesters ($70.5 million); fuel cells ($21.6 million); small wind ($18.1 million); and solar thermal ($24.7 million).

In 2009, the PSC expanded the RPS goal to increase the proportion of renewable generation in New York to 30 percent of projected electricity consumption by 2015. As part of that 2009 decision, the PSC authorized $200 million in main tier spending. According to the PSC, its decision to increase funding for renewable energy projects will spur significant private sector renewable energy investments, including an estimated $626 million spent on customer-sited solar photovoltaic projects alone. In total, these new customer-sited projects will produce an estimated 466,000 MWhs of electricity over the five-year period, or enough electricity to supply 72,000 average-sized homes.

In addition to customer-sited tier, the funds for large-scale downstate projects will be directed at projects greater than 50 kW. These projects will be more cost-effective and located where distributed generation can do the most good. The size complements the solar photovoltaic installations that are already supported under the customer-sited tier, which must be 50 kW or less, and provides economies of scale.

On March 25, 2010, the Public Service Commission (PSC) approved more than $279 million over a five-year period for customer-sited renewable energy projects as part of the state’s Renewable Portfolio Standard (RPS) program. This funding will enable homeowners and businesses to install solar panels, fuel cells, wind turbines and other renewable energy devices. In addition, the PSC approved $150 million for large-scale solar photovoltaic, anaerobic digester and fuel cell projects in and around the lower Hudson Valley and the New York City metropolitan area.

The ratepayer-funded RPS initiative employs two programs to encourage the development of renewable energy, both of which are administered by the New York State Energy Research and Development Authority (NYSERDA). The bulk of the electricity is obtained through competitive procurements for large-scale renewable resources, known as the main tier. The customer-sited tier promotes smaller, self-generation facilities located at residences and businesses. Technologies eligible for participation in the customer-sited tier include solar photovoltaic, anaerobic digesters, fuel cells and small wind. The March 25 approval added solar thermal hot water to the list of eligible technologies. Funding amounts are as follows: solar photovoltaic ($144 million); anaerobic digesters ($70.5 million); fuel cells ($21.6 million); small wind ($18.1 million); and solar thermal ($24.7 million).

In 2009, the PSC expanded the RPS goal to increase the proportion of renewable generation in New York to 30 percent of projected electricity consumption by 2015. As part of that 2009 decision, the PSC authorized $200 million in main tier spending. According to the PSC, its decision to increase funding for renewable energy projects will spur significant private sector renewable energy investments, including an estimated $626 million spent on customer-sited solar photovoltaic projects alone. In total, these new customer-sited projects will produce an estimated 466,000 MWhs of electricity over the five-year period, or enough electricity to supply 72,000 average-sized homes.

In addition to customer-sited tier, the funds for large-scale downstate projects will be directed at projects greater than 50 kW. These projects will be more cost-effective and located where distributed generation can do the most good. The size complements the solar photovoltaic installations that are already supported under the customer-sited tier, which must be 50 kW or less, and provides economies of scale.