Envirosphere

On August 5, 2010, DEC announced a plan to update the state’s regulations to strengthen protections for endangered and threatened species and to provide developers, local officials and others with a clear regulatory framework.

The draft proposals would establish criteria for the listing and de-listing of species and requirements for restoration and recovery plans. The proposals would also establish time lines, procedures and standards for reviewing applications for construction projects and other projects that might impact endangered and threatened species. The proposals would define the “taking” of a protected species to include the adverse modification of habitat – conforming to New York court decisions interpreting the term. The regulations also call for applicants to develop a mitigation plan that results in a net conservation benefit to the listed species.

Construction projects that might result in the “incidental take” of an endangered or threatened species (i.e. the taking of a protected species or the harming of a species’ habitat while engaged in an otherwise lawful activity) must complete a DEC permitting process before going forward. While current state regulations do not specify procedures or standards for reviewing such projects, the proposed regulations will clarify the permitting process.

For the first time, state regulations also will spell out criteria for listing or de-listing a species. Examples of listing criteria include: (1) if the current number of viable and self-sustaining populations of the species statewide is not sufficient to ensure its continued survival; (2) if threatened destruction, modification or curtailment of the species' habitat or range within the state threatens the continued survival of the species, and (3) the absence of existing regulatory mechanisms to protect the species or its habitat. Examples of de-listing criteria include: (1) if the current number of viable and self-sustaining populations of the species statewide is increased to a level sufficient to ensure continued survival of the species in the state; (2) other regulatory mechanisms have been adopted to adequately protect the species or its habitat; and (3) the sources of population declines, such as disease or habitat loss, have been addressed and abated.

On August 4, 2010, a group of 48 oil companies and other related defendants entered into a $42 million settlement with 27 water districts and towns on New York’s Long Island and Florida over alleged contamination of water supplies by the gasoline additive methyl tertiary butyl ether (MTBE).

The plaintiffs alleged that MTBE, an oxygenate used in gasoline for many years, leaked from underground storage tanks and contaminated nearby water supplies. The 48 defendants included Chevron Corp., CITGO Petroleum Co., Getty Petroleum Marketing Inc., Hess Corp., Lukoil Americas Corp., Shell Oil Co., Sunoco Inc., and Unocal Corp. The agreement leaves only a few cases unresolved in the multidistrict litigation.

The Town of Plainview was the first of the 23 Long Island drinking water authorities to sue the companies , beginning in 2003. Four Florida plaintiffs also joined in the settlement. Many of the claims in the multidistrict litigation were settled in May 2008, when 153 public water providers reached agreement with the defendants. In one of the few cases that went to trial, ExxonMobil Corp. was found liable in the amount of $105 million in October 2009 for damages alleged by New York City for drinking water well contamination in Queens.

Starting in 1979, MTBE was used in low levels in gasoline to replace lead as an octane enhancer and was later used at higher concentrations in some gasoline to fulfill the oxygenate requirements set by Congress in the 1990 Clean Air Act Amendments for cleaner-burning gasoline. According to EPA, MTBE has been detected in groundwater throughout the country. In re Methyl Tertiary Butyl Ether (MTBE) Products Liability Litigation (S.D.N.Y, notice of joint motion to dismiss dated Aug. 4, 2010).

On August 5, 2010, New York City and DEC entered into a memorandum of agreement that creates the New York City Brownfield Cleanup Program. The program will be carried out by the Mayor’s Office of Environmental Remediation (OER), which was created in June 2008.

The agreement, in addition to giving the City the authority to manage brownfields cleanups, provides for state-city coordination of investigations and remediation. It also offers liability incentives to encourage developers to use the program.

Under the agreement, the City program will allow owners and developers to investigate, clean up, and redevelop properties with light-to-moderate levels of contamination, under City oversight. The program seeks to end “self-directed cleanups,” or cleanups managed by developers without government oversight. The City is offering funds under a Brownfield Incentive Grant (BIG) program announced in June 2010.

On August 16, 2010, New York City Mayor Michael Bloomberg signed a law requiring lower sulfur content in No. 4 heating oil and a minimum of 2 percent of biodiesel fuel. The legislation (Intro. No. 194-A) was passed by the New York City Council on July 29, 2010 after Mayor Bloomberg and Council Speaker Christine Quinn announced agreement on a strategy to reduce pollutants in the city’s heating oil. The legislation was enacted as part of PlaNYC, New York City’s long-term sustainability plan.

No. 2 heating oil accounts for 70 percent of heating oil use in New York City. The law will limit the sulfur content of No. 4 heating oil to 1,500 parts per million beginning Oct. 1, 2012. The biodiesel content provision also takes effect on that date. Regulations implementing the law will be promulgated by the New York City Department of Environmental Protection (DEP).

Plan now to attend the Fall Meeting of the Environmental Law Section

Friday, October 1 to Sunday, October 3, 2010
The Otesaga
60 Lake Street
Cooperstown, NY 13326

Join your friends and colleagues at the 2010 Fall Meeting of the Environmental Law Section being held October 1-3 at The Otesaga Hotel in Cooperstown.

The Otesaga Hotel is a magnificent, Federal-style structure with an imposing front portico supported by massive 30-foot columns. It occupies 700 feet of lakefront on the southern shore of Lake Otsego, the famed "Glimmerglass" of James Fenimore Cooper’s novels.

This year’s program will offer up to 8.5 MCLE credit hours for experienced attorneys and up to 5 MCLE credit hours for newly admitted attorneys.