Envirosphere

On September 22, 2010, DEC issued a final Commissioner Policy on Climate Change. The policy directs DEC staff, to the extent applicable and within their existing statutory and regulatory authority, to incorporate climate change considerations in all aspects of DEC activities, including but not limited to decision-making, planning, permitting, remediation, rulemaking, grants administration, natural resource management, enforcement, land stewardship, facilities management, internal operations, contracting, procurement, and public outreach and education.

The policy includes five components that are intended to integrate climate change considerations into DEC activities:

(1) greenhouse gas reduction goals and the integration of specific mitigation objectives into applicable DEC programs, actions and activities;

(2) climate change adaptation goals and the integration of specific mitigation objectives into applicable DEC programs, actions and activities;

(3) climate change factors to guide DEC programs, activities and decisions;

(4) designation of climate change coordinators and formation of a DEC Climate Action Team; and

(5) annual climate change programmatic review to identify specific actions that will be taken that further the Policy's climate change goals and objectives.

On September 27, 2010, EPA announced that it would add Newtown Creek to its National Priorities List, otherwise known as Superfund.

Newtown Creek, a four-mile long waterway between Brooklyn and Queens, has a 17-million-gallon plume of groundwater contamination stemming from its banks. The plume, which runs under the neighboring Greenpoint section of Brooklyn, has been the subject of state cleanup supervision since 1990 and a lawsuit by state Attorney General Andrew M. Cuomo seeking to speed the work.

According to EPA, countless spills left Newtown Creek’s sediment polluted along its entire length. Arsenic, cadmium, chromium, copper, lead, nickel, selenium, silver, zinc, PCBs, and volatile organic compounds are among the many pollutants in the sediment. According to EPA, in the mid-1800s, the area adjacent to the creek was one of the busiest hubs of industrial activity in New York City, with more than 50 industrial facilities located along its banks, including oil refineries, petrochemical plants, fertilizer and glue factories, sawmills, and lumber and coal yards. According to the agency, the city began dumping raw sewage directly into the water in 1856 and during World War II, the creek was one of the busiest ports in the nation. According to EPA, more than 500 businesses lined the creek at its peak.

On October 6, 2010, New York City enacted five laws that will improve the energy efficiency of new and renovated buildings. The new laws incorporate the recommendations of the New York City Green Codes Task Force, which was jointly created by the Council and Mayor Michael Bloomberg. These laws bring to 12 the number of recommendations by the Task Force that have been enacted into law.

One of the newly enacted laws (Intro. 267-A) adds the term “environment” to the list of goals which the City’s building codes are charged with promoting. Thus, the codes must now not only consider “public safety, health, and welfare,” but the “environment” as well. This change is effective immediately.

The other four laws, which all go into effect on January 1, 2011 (except for Intro. 273-A, which goes into effect on July 1, 2011), improve the energy efficiency of lighting in buildings largely by replacing outdated standards in current codes and by requiring the installation of new technologies. Existing building code requires exits and public corridors to be illuminated at all times by electrical lighting fixtures, even when the space is lit by daylight or is unoccupied. One of the laws (Intro 262-A) will allow such spaces to be lit by automatic, occupant sensor or photosensor lighting controls, as long as a minimum level of illumination is maintained. The law also lowers the level of lighting illumination for exits, exit discharges and public corridors.

Lights often remain on in commercial buildings, even if a room is unoccupied. A second law (Int. 266-A) requires certain commercial spaces to install lighting sensors and controls, including sensors that automatically turn off the lights when the space is vacated and only turn on manually, thus avoiding lights going on when a person enters a room only briefly.

The existing building code requires all temporary walkways and foot bridges, as well as the underside of sidewalk sheds, to be illuminated based on incandescent light bulbs of specified wattage. A third law (Intro. 273-A) amends the code by replacing watts, which is a measure of how much electricity is used, with foot-candles, which is a measure of luminosity. This will create more energy efficient lighting along these structures by allowing photosensors to be used to control electric lighting in such areas according to the amount of daylight available.

Finally, existing code requires the use of incandescent lights in certain common areas of multiple dwellings buildings, implying that these lights should always be left fully on. A fourth law (Intro. 277-A) allows the use of automatic, occupant sensors or photosensors lighting controls in laundry rooms, hallways, stairways and other designated common areas if certain safety conditions are met.

[note: Justin Birzon assisted in the drafting of this post]

New York State and Municipal Efforts to Improve Energy
Efficiency in Buildings: Challenges and Opportunities

Date: Tuesday, October 20, 2010
Time: 6:00 - 8:30 p.m. Live/Webcast
Location: Pace Law School—Moot Court Room
78 North Broadway, White Plains, NY
Participants
Emma Bassein, NYSERDA
Stephen Del Percio, Esq., Arent Fox LLP
Greg Hoffnagle, Esq., Edwards Angell Palmer & Dodge LLP
J. Cullen Howe, Esq., Arnold & Porter LLP
Jackson Morris, Pace Energy and Climate Center

Program Description
This program is co-sponsored with Pace Law School Environmental Law Programs, Pace Energy and Climate Center and the Pace Law School Alumni Association.

This program will discuss New York State and municipal efforts to improve energy efficiency in buildings and some of the roadblocks they’ve come up against in the process.

CLE Credit Information: This program will provide 2.5 transitional/nontransitional CLE credits in the area of Professional Practice.

Registration: Pre-registration required. Fee: Free of charge

To register please contact Linda Maccarrone at 914-422-4062 or
visit website at www.law.pace.edu/ccle

On October 20, 2010, DEC announced the submission of a regulation to the state Environmental Board for consideration at its October 25 meeting that would set stringent performance standards for new outdoor wood boilers sold in New York State. If approved, the regulation would go into effect 30 days after its filing with the state Secretary of State.

The stricter guidelines will ensure that new outdoor wood boilers burn at least 90% cleaner than older models. The regulation before the Environmental Board also includes fuel restrictions and stack height standards for existing as well as new outdoor wood boilers which will reduce the impact of their emission plumes on neighboring property owners. New outdoor wood boilers will be required to be set back a minimum of 100 feet from neighboring properties.

A provision in an earlier proposal to phase out the use of older outdoor wood boilers has been removed and will be addressed through a new public stakeholder process to develop a revised regulatory framework to address concerns of residents impacted by the operation of such units.

The rule shortens the period when boilers cannot be used in the Northern Heating Zone – which includes all counties north and west of Dutchess, Ulster and Sullivan counties -- to the period from June 1 through August 31. The seasonal restriction for all other areas of the state will run from May 15 to September 30.

On October 27, 2010, DEC issued a notice that it had prepared draft guidance on a law that was enacted in May 2010 (L. 2010, ch. 85) that prohibits pesticide use on playgrounds, turf and athletic or playing fields at schools and day care centers.

As required by the law, DEC developed the guidance in consultation with the New York State Education Department and New York State Department of Health (DOH), as well as the New York State Office of Children and Family Services. The guidance is intended to help schools and day care centers comply with the new law by providing information on alternatives to pesticides for grounds maintenance and on the new pesticide prohibition requirements.

The guidance addresses five subjects:

(1) summary of requirements of Chapter 85 and identification of involved State agencies;

(2) information on how to maintain child-safe playing fields and turf without pesticides, to assist in complying with the new pesticide prohibition, including an introduction to alternative approaches to grounds maintenance and pest management and concepts about soil and plant health;

(3) a brief description of the types of pesticide products allowed under the new law and ways to identify them;

(4) identification of agencies that schools and day care centers should contact to request an emergency pesticide application determination, as well as the basic framework for situations which will be considered an emergency by DOH DEC;

and (5) a list of responsible State agencies and contact information for questions.

Comments on the draft guidance are being accepted until November 29, 2010.