After six years and vigorous public comment, the New York State Department of Environmental Conservation (DEC) has adopted substantive amendments to the implementing regulations of the State Environmental Quality Review Act (SEQRA). The new regulations take effect on January 1, 2019 and will apply to all pending and future actions for which a determination of significance has not been made prior to the effective date.

The changes to the SEQRA regulations affect both substantive and procedural aspects of the SEQRA process. Of particular note are the changes to:  the list of Type I Actions (projects that carry a strong presumption of significant adverse environmental impact and typically result in the preparation of an Environmental Impact Statement [EIS]); the List of Type II Actions (projects that the DEC has pre-determined to not result in significant adverse environmental impacts and are exempt from environmental review); “scoping” (the procedural step which identifies the adverse environmental impacts to be studied in an EIS, and which will now be a mandatory step in the SEQRA process), and clarification on the requirements for preparing a Draft EIS (DEIS).

The amendments affecting Type I Actions (6 NYCRR §617.4) can be described generally as altering the thresholds which trigger certain Type I designations.

  • In cities, towns and villages having a population of 150,000 persons or less, the following are now Type I Actions:
    • The addition of 200 units or more that will connect to existing community or public water or sewerage systems. The threshold was previously 250 units.
    • The addition of parking for 500 vehicles or more.
  • In cities, towns and villages having a population of 150,001 persons or more, the following are now Type I Actions:
    • The addition of 500 units or more that will connect to existing community or public water or sewerage systems. The threshold was previously 1,000 units.
    • The addition of parking for 1,000 vehicles or more.

Long Island communities will be particularly interested in both of these thresholds. While the island is home to nearly 100 villages that will be subject to the lower threshold applied to municipalities of 150,000 persons or less, it is also the home to the Towns of Babylon, Brookhaven, Hempstead, Huntington, Islip, and Oyster Bay, all of which have populations in excess of 150,001 persons, according to recent census data. Projects in those town which have a large residential component (and are located outside of incorporated villages) will need to be mindful of the 500-unit threshold.

    • The amended SEQRA regulations preserve a limitation on the Type I designation for the creation of new residential units. As in the old SEQRA regulations, the number of new units alone is not the only factor in determining whether a Type I designation is appropriate. The project must also tie in to an existing community or public water or sewerage system. Thus, a project that proposes its own water and sewerage facilities will not necessarily trigger a Type I designation, even if the number of proposed units exceeds the numeric threshold.
  • Any Unlisted Action which exceeds 25% of any Type I threshold and which is located wholly or partially in, or contiguous to, a place or district that has been listed or has been determined to be eligible for listing on either the National or State Register of Historic Places is a Type I Action. This revision is something of a double-edged sword for developers in that while a project will no longer be Type I solely because of its proximity to a historic site—because the project must now also exceed 25% of some other Type I threshold under §617.4—the requirement that “eligible” sites also be considered increases the possibility that a project is located near a site capable of triggering a Type I designation.

The amendments affecting Type II Actions (6 NYCRR §617.5) add several new categories of actions that are exempt from environmental review going forward. They include:

  • Retrofitting an existing structure and its appurtenant areas with green infrastructure. While the phrase “green infrastructure” might evoke any number of green practices or technologies that have come to the forefront of eco-conscious design, the revised SEQRA regulations narrowly define the term as “practices that manage storm water through infiltration, evapo-transpiration and reuse…” The definition then includes an exclusive list of the specific practices that constitute “green infrastructure” for purposes of Type II exemption. Thus, the exemption is narrower than it would appear at first blush.
  • Installation of telecommunications cables in existing highway or utility rights of way and utilizing trenchless burial or aerial placement on existing poles. Notably, the exemption is limited to telecommunications “cables” and, therefore, does not include small cells, “nodes” or Distributed Antenna Systems (DAS), which have become prevalent in the telecommunications industry. Prior iterations of the Type II amendments did include co-location of telecommunications antennas as a new exempt category; however, that exemption was removed in response to public comment.
  • Installation of a solar array involving 25 acres or less of physical alteration and located on: a closed landfill; a commercial or industrial brownfield site or Environmental Restoration Project site that has received a certificate of completion; an inactive hazardous waste site (under certain conditions); or already disturbed area located within a publicly-owned wastewater treatment facility or an industrial zoned site.
  • Installation of a solar array on any existing structure, provided the structure is not listed on the Federal or State Register of Historic Places; determined to be eligible for listing on the historic registers; or within a district that has either been listed or determined to be eligible to be listed on the historic registers.
  • Reuse of a residential or commercial structure, or a mixed use residential and commercial structure, for a use which is permitted under applicable zoning, including uses by special permit, provided the reuse does not trigger any Type I threshold. Critics of this particular exemption argued that local zoning laws are often outdated; and as a result, the exemption may prevent environmental review of a use that, while legally permissible, is nonetheless out of touch with the present character of the district in which it is located. The DEC has countered that in almost all situations, a given project will be subject to some form of discretionary review, during which impacts of concern can be vetted and mitigated. Additionally, because the exemption encourages the reuse of structures, it will also reduce the use of virgin building materials and the creation of construction and demolition debris, which are deposited in landfills.

Under the current regulations, Scoping (6 NYCRR §617.8) is an optional step in the SEQRA process. However, as of January 1, 2019, scoping will be mandatory for “all” EISs, except for Supplement EISs prepared pursuant to 6 NYCRR §617.9(a)(7). Incidentally, lead agencies will no longer have the option of accepting a proposed DEIS in lieu of an environmental assessment form because submission of a DEIS must now be preceded by a scoping session and the lead agency’s acceptance of a final, written scoping document. Opponents of this change have argued that, for some projects receiving a positive declaration, the environmental assessment forms will be sufficient to identify the environmental impacts requiring study in an EIS. Therefore, for those projects, mandatory scoping prior to preparation of a DEIS will result in unnecessary delay of the SEQRA process and added expense for the project sponsor.

The amendments affecting DEIS preparation (6 NYCRR §617.9) seek to clarify the requirements for a complete DEIS and avoid undue delay of the SEQRA process while the sponsor, lead agency and public debate the adequacy of a DEIS’ contents. The regulations provide that a DEIS is complete when it: (1) meets the requirements of the written final scope and sections 617.8(g) and 617.9(b) of the SEQRA regulations; and (2) “provides the public and involved agencies with the necessary information to evaluate project impacts, alternatives, and mitigation measures.” In addition, the regulations mandate that the completeness of a resubmitted DEIS be evaluated solely based on a list of written deficiencies provided by the lead agency during its review of the prior version of the DEIS (with some exceptions). Time will tell whether these particular amendments will have their desired effect of streamlining the DEIS phase of the SEQRA process. Reasonable minds may yet disagree on whether a DEIS “provides the public and involved agencies with the necessary information to evaluate project impacts, alternatives, and mitigation measures.”

The 2018 SEQRA amendment contains additional changes, including additional Type II categories not discussed here and new publication requirements for SEQRA materials. A complete copy of the 2018 SEQRA amendment and related materials can be found on the DEC website at: https://www.dec.ny.gov/permits/83389.html.

If you have questions regarding SEQRA regulations, please contact me at pbutler@farrellfritz.com.

See also, related SEQRA topics written by blog-colleague Charlotte A. Biblow, by clicking here & here!

 

 

 

 

 

In April of 2016 we published the blog entitled “Mining in the Hamptons: Appellate Division Affirms Town of Southampton Zoning Board of Appeals Limitations on Pre-existing Nonconforming Uses Associated with Hamptons Mining Operation.” Despite the Appellate Division’s decision regarding certain pre-existing nonconforming uses occurring on the site, Sand Land Corporation’s (“Sandland”) pre-existing mining use of the property was never at issue, until now.

In January 2018, the New York State Department of Environmental Conservation (“DEC”) issued a determination entitled “Ruling of the Chief Administrative Law Judge on Threshold Procedural Issue, January 26, 2018” essentially halting the DEC’s review of Sandland’s mining permit application until further information was submitted by the Town of Southampton. Sandland, was authorized pursuant to a Mined Land Reclamation Law (MLRL) permit issued by the DEC to mine sand and gravel from 31.5 acres of the 50 acre site to a depth of 160 feet above mean sea level, which is 60 feet below the surface elevation at 220 feet. In January of 2014, Sandland submitted an application to the DEC to expand its current permit to mine 4.9 additional acres and excavate the floor of the mine to 120 feet above mean sea level- lowering the mine floor by 40 feet. The DEC notified the applicant that a permit modification to expand the mine “beyond its previously approved life of mine boundaries” was considered a “new application”, classified as a “major project” and required a statement that mining was not prohibited at the site.

NYS Environmental Conservation Law (“ECL”) §23-2703, Declaration of Public Policy, Subsection 3 states, “No agency of this state shall consider an application for a permit to mine as complete or process such application for a permit to mine pursuant to this title, within counties with a population of one million or more which draws its primary source of drinking water for a majority of county residents from a designated sole source aquifer, if local zoning laws or ordinances prohibit mining uses within the area proposed to be mined.” Suffolk County satisfies this criteria having a population of one million or more and drawing its primary source of drinking water from a sole source aquifer. Opponents of Sandlands’ application argued that because mining is prohibited in the zoning district where the property is located, ECL §23-2703 (3) applies and the DEC is prohibited from processing the application.

ECL §23-2711(3) requires that the DEC notify the Town’s “Chief Administrative Officer” for properties not previously permitted pursuant to that title and seek input regarding whether mining is permitted on site.[1] The Town responded with a letter noting the Certificate of Occupancy authorizing mining on site but noted that if the DEC was characterizing this as a new mine, that new mines are prohibited in all zoning districts.[2] The Town further noted the location of the property in the Aquifer Protection Overlay District and requested that the reclamation of the property be expedited to allow the property to be used for conforming residential purposes. However, the Town did acknowledge that “certain nonconforming uses, if they are established to pre-exist zoning, are allowed to continue and even expand under certain circumstances pursuant to Town Code §330-167B”.

Additionally, the Town Code provides for the continuance of nonconforming uses pursuant to §330-115 which states, “Any lawful use occupying any building, structure, lot or land at the time of the effective date of this chapter or any amendment thereto which does not comply after the effective date of this chapter or any amendment thereto with the use regulations of the district in which it is situated may be continued in the building or structure or upon the lot or land so occupied, except as provided in § 330-119.”[3]

The DEC held a hearing where the applicant argued that the application only sought renewal of an existing permit for a lawful preexisting nonconforming use. Ultimately, however the DEC Administrative Law Judge held that ECL § 23-2703(3) prohibits the DEC from processing mining permits for mines located in towns such as the Town of Southampton, Suffolk County, where the county, with a population of over one million people, draws its primary drinking water for a majority of its residents from a designated sole source aquifer, and the town has a local law prohibiting mining in the town. Additionally, the Administrative Law Judge found that Sandland had not established that the proposed mine expansion was authorized under the Town’s local zoning laws. The reviewing Judge adjourned the matter pending submission of proof adequate to establish that applicant’s proposed mine expansion is authorized under the Town’s local law.

As determined by the New York State Court of Appeals, a prior nonconforming use for mining is unique in that it is not limited solely to the land that was actually excavated before the enactment of a restrictive zoning law (in this case, March 27, 1983) but extends well beyond.[4] The well-known Court of Appeals case, Syracuse Aggregate, established that pre-existing mining rights extend to the boundaries of the property regardless of whether that specific area was mined prior to the change in the zoning law. In examining the nature of mining as a nonconforming use the Court stated:

“By its very nature, quarrying involves a unique use of land. As opposed to other nonconforming uses in which the land is merely incidental to the activities conducted upon it, quarrying contemplates the excavation and sale of the corpus of the land itself as a resource. Depending on customer needs, the land will be gradually excavated in order to supply the various grades of sand and gravel demanded. Thus as a matter of practicality as well as economic necessity, a quarry operator will not excavate his entire parcel of land at once, but will leave areas in reserve, virtually untouched until they are actually needed.” [5]

In furtherance of this premise, the Court of Appeals in Buffalo Crushed Stone extended that holding to properties purchased in contemplation of mining that are separate and apart from the original mined parcel.[6] The Court stated,

“Consequently, a prior nonconforming use for quarrying cannot be limited solely to the land that was actually excavated before the zoning law, because-in this unique type of industry- landowners commonly leave portions of their land as mineral reserves to be excavated at a future time.[7]   Mine owners commonly leave portions of their land as mineral reserves to be excavated at a future time.”[8]

The question remains, then, how this administrative court essentially halted the continuation of this “unique” mining operation that pre-exists zoning via the DEC permitting process without applying or even considering this well-established line of Court of Appeals cases.  Indeed, the reviewing Administrative Law Judge did cite the Syracuse Aggregate case but only for the following premise: “A town’s authority includes not only the power to prohibit the development of new mines ( see id. at 684), but to impose reasonable restrictions limiting the expansion of and eventually extinguishing prior nonconforming mining uses within the town (See Matter of Sand Land Corp. , 137 AD3d at 1291-1292; Matter of Syracuse Aggregate Corp. v Weise , 51 NY2d 278, 287 [1980] Matter of 550 Halstead Corp. v Zoning Bd. of Appeals of Town/Vil. of Harrison , 1 NY3d 561, 562 [2003] [Because nonconforming uses are viewed as detrimental to zoning schemes, public policy favors their reasonable restriction and eventual elimination.]).”

However, the Judge failed to take notice of the Court of Appeals holding in Gernatt Asphalt Products, Inc. v. Town of Sardinia, 87 N.Y.2d 668, 642 N.Y.S.2d 164, 664 N.E.2d 1226 (1996), upholding a zoning law banning mining except for preexisting operations. “Towns may not directly regulate mining, but they retain the power to zone — even to zone out mining totally, as long as non-conforming uses are protected, as the Constitution mandates, to prevent a de facto taking.” See McKinney’s Practice Commentaries to NYS Environmental Conservation Law 23-2703 , Philip Weinberg (emphasis added).

Procedurally, Sandland’s mine permit expires in November of 2018. The matter was appealed administratively in a motion to reargue, a second hearing took place and we look forward to the Administrative Law Judge’s ruling.

 

[1] ECL §23-2711(3) further states,(a) The chief administrative officer may make a determination, and notify the department and applicant, in regard to: (i) appropriate setbacks from property boundaries or public thoroughfare rights-of-way, (ii) manmade or natural barriers designed to restrict access if needed, and, if affirmative, the type, length, height and location thereof, (iii) the control of dust, (iv) hours of operation, and (v) whether mining is prohibited at that location. Any determination made by a local government hereunder shall be accompanied by supporting documentation justifying the particular determinations on an individual basis.

[2] Mining effectively became prohibited in the Town of Southampton on March 27, 1981. See Huntington Ready Mix-Concrete Inc. v. Town of Southampton et al., 104 A.D.2d 499 (1984).

[3] Town Code § 330-119, Compulsory termination of nonconforming uses, bars, taverns and nightclubs, addresses the amortization of pre-existing nonconforming nightclubs.

[4] Syracuse Aggregate Corp. v. Weise, 51 N.Y.2d 278, 434 N.Y.S.2d 150 (1980); Buffalo Crushed Stone, Inc. v. Town of Cheektowaga, 13 N.Y.3d 88, 885 N.Y.S.2d 913 (2009)(stating “quarrying contemplates a gradual unearthing of the minerals in the land, as so excavation of portions of the land may be sufficient to manifest an intention to conduct quarrying on the property as a whole.”)

[5] Id. at 285, 434 N.Y.S.2d 150 (citations omitted).

[6] Buffalo Crushed Stone, Inc., 13 N.Y.3d 88, 885 N.Y.S.2d 913 (2009)(confirming the mining company had the vested pre-existing right to mine a separate parcel, “subparcel 5” which was not mined by its predecessors and separated by a road from the larger mined area.)

[7] Id. at 401.

 

[8] Id. at 396 stating, (“we hold that the long and exclusive quarrying operation of BCS and its predecessors and their preparations to use areas left as aggregate mineral reserves, consistent with the nature of quarrying, established a right of prior nonconforming usage on the disputed subparcels”).

In Fichera, et al. v. New York State Dep’t of Envt’l Conserv., et al., decided last month, Petitioners commenced an Article 78 proceeding seeking to void actions taken and determinations made by the New York State Department of Environmental Conservation and the Zoning Board of Appeals of the Town of Sterling (“Sterling ZBA”) and to enjoin the advancement of a mine project (“Mine Project”). Below, the Supreme Court, County of Cayuga, denied the petition and granted various motions to dismiss. On appeal, the Appellate Division, Fourth Department, held that (1) the petition was timely and (2) the Supreme Court erred by dismissing the cause of action based upon a violation of  New York General Municipal Law section 239-m (“Section 239-m”) and by not granting the petition thereupon. The appeals court remitted the matter back to the Sterling ZBA.

As pertinent to the appeal, the Article 78 petition claimed that the Sterling ZBA violated Section 239-m when it granted the Mine Project owners’ original application for an area variance without referring the matter to the appropriate county planning agency or regional planning council. Therefore, petitioners argued, the Sterling ZBA’s action in granting the area variance application was deemed null and void. Petitioners further argued that the Sterling ZBA’s sua sponte decision to grant the Mine Project owners an amended area variance based upon its previous determination on the original application was also null and void.

In opposition to the petition, respondents argued that the challenge to the determination granting the initial area variance was time-barred because petitioners failed to commence their challenge within 30 days of the original determination, as required by New York Town Law section 267-c(1). In addition, respondents contended that the determination granting the subsequent amended area variance was made by the Sterling ZBA after it made the appropriate referrals required by Section 239-m.

The appeals court agreed with the petitioners and emphasized the jurisdictional importance of complying with Section 239-m in declaring the Sterling ZBA’s approvals null and void. In many instances, Section 239-m requires a municipal agency to refer an application to a county or regional planning board for its recommendation prior to the agency taking final action on an application for land use approval. The Sterling ZBA did not refer the initial application for an area variance to the Cayuga County Planning Board before taking final action with respect to that application. Failure to comply with Section 239-m is not a mere procedural irregularity; rather, it is a jurisdictional defect involving the validity of a legislative act. Accordingly, the Sterling ZBA’s failure to refer the initial application to the county planning board renders the approval null and void.

Moreover, the appeals court held that the Sterling ZBA’s determination in granting the subsequent amended area variance was also null and void. “Inasmuch as the determination granting an amended area variance was based on the initial, void determination, we further conclude that the [Sterling] ZBA’s approval of the amended area variance is likewise null and void.”

Notably, if the county or regional planning board recommends modifications or disapproves an application, then the referring body cannot act otherwise – except by a vote of majority plus one of all members. Here, the Sterling ZBA unanimously approved the grant of the amended area variance and the respondents argued that the unanimous approval of the amended area variance was sufficient to override any recommendation by Cayuga County Planning Board to disapprove or modify (had the Sterling ZBA referred in the first place). “[T]he subsequent vote cannot retroactively cure the jurisdictional defect in granting the original area variance upon which the [Sterling] ZBA relied in granting the amended area variance.”

Lastly, the appeals court found that the Article 78 petition was timely, despite having been brought well-after the Sterling ZBA’s determination respecting the initial area variance application. The filing of a jurisdictionally defective document does not commence the statute of limitations. Therefore, the statute of limitations never ran and the petition was timely.

The Appellate Division modified the Supreme Court’s judgment in conformance with its opinion (discussed above) and remitted the matter to the Sterling ZBA for a new determination on the area variance application.

In 2012, the New York State Department of Environmental Conservation (NYSDEC) proposed sweeping changes to its State Environmental Quality Review Act (SEQRA) regulations. These proposed changes were not adopted. Rather, five years later, in February 2017, the NYSDEC issued proposed amendments to the SEQRA regulations and a draft generic environmental impact statement, (GEIS), in which it set forth its rationale and objectives for the proposed amendments. We wrote about this development in an April 3, 2017 blog post.

The NYSDEC did not enact the 2017 proposed regulations. Instead, more than one year later, on April 4, 2018, the NYSDEC released revised proposed amendments to the SEQRA regulations and a revised draft GEIS, in which it addressed approximately 250 comments it received in 2017. At the same time, the NYSDEC released proposed revisions to Part 1 of the Short Environmental Assessment (EAS) Form and to Parts 1 and 2 of the Full EAS Form. The 2018 revised proposed amendments made refinements to the existing regulations, in particular to Type II actions. A Type II action does not require SEQRA review. The NYSDEC is accepting comments through May 4, 2018 on these revised proposed amendments.

Here’s a brief summary of the 2018 revised proposed amendments to the SEQRA regulations.

The existing SEQRA regulations note that each agency can adopt its own list of Type II actions and is not bound by a list of Type II actions adopted by another agency. [6 NYCRR § 617.5(b)] The revised proposed amendment to that provision will add a clarifying sentence that explains that an action that is “identified as a Type II action in an agency’s procedures” does not require it to “be treated as a Type II action by any other involved agency not identifying it as a Type II action in its procedures.”

Other proposed changes will indicate that the following are not subject to SEQRA review.

  • “retrofit of an existing structure and its appurtenant areas to incorporate green infrastructure”
  • “installation of telecommunication cables in existing highway or utility rights of way utilizing trenchless burial or aerial placement on existing poles”
  • “installation of solar arrays where such installation involves 25 acres or less of physical alterations” on closed sanitary landfills, certain brownfield sites that have received certificates of completion (COCs), or certain inactive hazardous waste sites that have received full liability releases or COCs

Another change will indicate that the installation of solar arrays on an existing structure is not subject to SEQRA review if the structure is not listed on the Register of Historic Places, is not located in a listed historical district, or has not been determined by the Commissioner of Parks, Recreation and Historic Preservation to be eligible for such listings.

Another proposed change will indicate that the reuse of a residential or commercial structure, or of a mixed use residential/commercial structure, where the use is a permitted use or is permitted by special use permit and does not meet or exceed criteria contained in 6 NYCRR § 617.4, is not subject to SEQRA review. In addition, a recommendation of a county or regional planning board pursuant to General Municipal Law §§ 239-m or 239-n, an agency’s acquisition of or dedication of 25 acres or less as parkland, or the sale of real property by public auction, is not subject to SEQRA review. And, the construction and operation of an anaerobic digester, under certain conditions, will also be added to actions that are not subject to SEQRA review.

The revised proposed amendments also contain some refinements to the DEIS process. Of particular interest to Long Islanders is a proposed insert to 6 NYCRR § 617.9. The insert will apply to proposed actions that are in or involve resources of Nassau or Suffolk Counties. Such DEIS will have to include “measures to avoid or reduce an action’s environmental impacts and vulnerability from the effects of climate change such as sea level rise and flooding.”

One other proposed insert, to 6 NYCRR § 617.12, will be of concern to municipal agencies. That insert requires the lead agency to publish or cause to be published on a publicly available and free website the draft and final scopes and the draft and final environmental impact statements. These documents must remain on the website for at least one year after the later of (1) all permits having been issued, or (2) the action being funded or undertaken.

Stay tuned to see when, or if, the NYSDEC finally enacts the proposed changes to the SEQRA regulations.

th3QKHUYHKThere has been a lot of recent press about water pollution caused by PFOS and PFOA, in particular at Hoosick Falls in upstate New York and at the Stewart Air National Guard Base in Newburgh. You may have wondered what the heck these chemicals are and should we be worried about them on Long Island. Here is some information to help answer these questions.

 Perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA) are fluorinated organic chemicals that are part of a larger group of chemicals known as perfluoroalkyl substances. They are highly resistant to water, grease and stains, a characteristic that explains why they were widely used in carpets, clothing, furniture fabric, food packaging, and cookware. PFOA was used to make Teflon®. PFOA and PFOS are components of firefighting foam used at airfields.

Although the US production of these chemicals has been phased out, these chemicals are resistant to environmental degradation. As a result, they are still widely distributed in the environment and have been found to accumulate in humans, wildlife and fish.

In May 2016, the USEPA issued a health advisory about acceptable levels of PFOS and PFOA in drinking water. If drinking water contains PFOA or PFOS above 70 parts per trillion (ppt), the USEPA recommends that steps be taken to notify the public and health officials in order to limit exposure and identify the source. This is an extraordinarily low concentration. Picture a swimming pool full of one trillion (1,000,000,000,000) ping pong balls. Now picture 70 of them painted yellow and the rest of them (999,999,999,930) painted white. That’s 70 ppt. In April 2016, the New York State Department of Environmental Conservation (NYSDEC) added PFOS and PFOA to its list of hazardous substances.

In June 2016, the NYSDEC announced that it had reached settlements holding Saint-Gobain Performance Plastics Corporation and Honeywell International Inc. responsible for the PFOA water contamination in the Hoosick Falls area in upstate Rensselaer County. These plants manufactured Teflon®. Among other things, the settlement requires the companies to: (i) investigate PFOA contamination at four Honeywell and two St. Gobain plants; (ii) investigate the feasibility of an alternate water supply for the area; (iii) fund filtration systems for the local municipal water supply; and (iv) continue to pay for bottled water for local residents until the filtration systems are installed and working.

Two months later, in August 2016, the NYSDEC declared municipal landfills in the Village of Hoosick Falls and in the towns of Petersburgh and Berlin to be potential state Superfund sites. Monitoring wells at the Hoosick Falls site contained concentrations up to 21,000 ppt of PFOA, which is 3,000 times the USEPA health advisory limit. Samples from leachate on the Petersburgh/Berlin site contained concentrations up to 4,200 ppt of PFOA.

In early August 2016, the NYSDEC named the Stewart Air National Guard Base in Newburgh as a New York State Superfund site based on PFOS contamination. PFOS was used in Class B firefighting foam at the air base. PFOS contamination was detected in Lake Washington, which served as Newburgh’s primary water supply. Concentrations up to 5,900 ppt were found in an outfall from the air base that drained into Silver Stream, a primary tributary of Lake Washington.

Can it happen on Long Island? It already has. In July 2016, PFOS was detected in public supply wells near the Air National Guard Base at Gabreski Airport, in Westhampton Beach.  Concentrations of PFOS at 14,300 ppt were detected in monitoring wells. Groundwater downgradient of the current fire training area contained concentrations of PFOS at 58,900 ppt and PFOA at 6,930 ppt. Groundwater downgradient of the former fire training area contained concentrations of PFOS at 44,300 ppt and PFOA at 653 ppt. Not surprisingly, Gabreski was declared a state Superfund site a few weeks ago.

 

ewaste photo Want to get rid of that ten-year-old computer or monitor?  Don’t just toss it out with the general trash if you live or work in New York.  New York requires recycling of electronic equipment, known as e-waste. According to a recent report issued by the NYS Department of Environmental Conservation, the State’s e-waste recycling program has been an overwhelming success. From 2011 through the end of 2014, when the program was voluntary, New Yorkers recycled more than 318 million pounds of e-waste.

The program became mandatory as of January 1, 2015. Manufacturers are required to establish recycling sites.  A list of e-waste recycling locations is available on the NYSDEC website. Individuals, for-profit businesses with less than 50 employees, and not-for-profit businesses with less than 75 employees can recycle e-waste without charge. For profit businesses with 50 or more employees and not-for-profits with 75 or more employees may be charged a fee. More  information on New York’s innovative program can be found here.

fp_sea_level_globeImagine walking along Jones Beach, dipping your toes into the cool ocean water. Now imagine that ocean six feet higher. Scientists project that by 2100, sea levels along New York’s coastlines and estuaries likely will be 18 to 50 inches higher than they presently are. One New York State-funded research study predicted that sea levels could be as much as 75 inches higher than current levels.¹ Even the lower range of these projections is daunting, as New York’s coastal marine counties are home to more than half of the state’s citizens.² New York State is taking these predictions very seriously and wants them incorporated into decision-making now. On September 22, 2014, New York State’s Community Risk and Resiliency Act (“CRRA”) was signed into law by the Governor. The CRRA is aimed at ensuring that the effects of climate change and extreme-weather events are taken into consideration when state agencies enact facility-siting regulations, grant permits, or provide funding for certain projects.³  The CRRA requires the NYS Department of Environmental Conservation (“NYSDEC”) to adopt “science-based” sea-level rise projections by January 1, 2016 and requires these projections to be updated every five years. The sea-level rise projections will be incorporated into certain permit and funding decisions to take into account future physical climate risk due to sea-level rise, storm surge, and flooding. These include: (1) permits for oil and natural gas wells, (2) major projects involving protection of water, sewerage service, liquefied natural gas and liquefied propane facilities, mined land reclamation, freshwater wetlands, tidal wetlands, and coastal erosion hazard areas; and (3) facility-siting programs for hazardous waste transportation, storage and distribution facilities, petroleum bulk storage, and hazardous substance bulk storage. The funding programs include the Water Pollution Control Revolving Fund, the Drinking Water Revolving Fund and those for:

  • open space acquisition
  • open space project operation and maintenance agreements
  • landfill closure assistance
  • coastal rehabilitation assistance
  • local waterfront revitalization
  • agricultural and farmland protection.

The CRRA requires the NYS Department of State, in cooperation with the NYSDEC, to develop model local laws on climate change. These laws will include consideration of future risk due to sea-level rise, storm surge, and flooding.

The CRRA will help ensure that land use decisions being made in New York consider both short-term and long-term risks of projects.

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¹Horton, R., D. Bader, C. Rosenzweig, A. DeGaetano, and W. Solecki. 2014. Climate Change in New York State: Updating the 2011 ClimAID Climate Risk Information. New York State Energy Research and Development Authority, Albany, New York. See, http://www.nyserda.ny.gov/climaid. Zhang, M., H. Bokuniewicz, W. Lin, S. Jang, and P. Liu, 2014. Climate Risk Report for Nassau and Suffolk, New York State Resilience Institute for Storms and Emergencies (“NYS RISE”), NYS RISE Technical Report TR‐0‐14‐01. See, http://www.nysrise.org.

² Sea Level Rise – Projections and Impacts for New York, available at http://www.dec.ny.gov/energy/45202.html.

³New York State Community Risk and Resiliency Act Summary (the “CRRA Summary”), available at http://www.dec.ny.gov/docs/administration_pdf/crrasummary.pdf.

 

 imagesTIZO8UVJOn March 24, 2015, the New York Court of Appeals heard oral argument on a case challenging how municipal separate storm sewer systems (known as MS4s) are regulated by the New York State Department of Environmental Conservation (NYSDEC). The Court of Appeals will decide whether the federal Clean Water Act (CWA) is violated by the NYSDEC’s issuance of a general permit governing discharges from MS4s.  If the Court of Appeals affirms the appellate court decision, (Natural Resources Defense Council, Inc. v NYSDEC, 120 AD3d 1235 [2d Dept 2014]), small municipalities throughout New York and the NYSDEC will breathe a sigh of relief.  On the other hand, if the Court of Appeals reverses, and agrees with the trial court, (Natural Resources Defense Council, Inc. v NYSDEC, 35 Misc3d 652 [Sup. Ct. Westchester Co. 2012]), the impact to the NYSDEC, local governments and taxpayers will be significant.

The CWA  prohibits discharges of water pollution from point sources into surface waters except in compliance with either a national pollutant discharge elimination system (NPDES) permit, issued by the U.S. Environmental Protection Agency (USEPA) or a state pollutant discharge elimination system (SPDES) permit issued by a USEPA-authorized state agency.  The NYSDEC is an USEPA-authorized state agency.

There are two types of NPDES/SPDES permits authorized by the CWA, individual permits (facility specific) and general permits (covering regional or categories of facilities).   The NYSDEC issued a general permit for storm water discharges from certain MS4s (the “General Permit”).  Approximately 500 small municipalities are covered by this General Permit.

The Natural Resources Defense Council, Inc., (NRDC) and others sued the NYSDEC contending that the General Permit violates the CWA because it fails to ensure that these small municipalities reduce their pollutant discharges to the “maximum extent practicable.”  The trial court agreed with the NRDC.  The Second Department reversed. In 2013, it found that the General Permit did not violate the CWA.  In 2014, on re-argument, the Appellate Division essentially confirmed its 2013 ruling.

The Second Department determined that the term “maximum extent practicable” was deliberately left undefined by the USEPA to allow maximum flexibility in MS4 permitting on a location-by-location basis.  The appellate court noted that the USEPA outlined various minimum control measures for small MS4s to achieve the maximum extent practicable standard. It found that the General Permit was consistent with the USEPA general permit criteria and was designed to meet the maximum extent practicable standard as it required covered municipalities to develop, implement, and enforce a storm water management plan aimed at reducing the discharge of pollutants.  The plan had to identify and describe the selected best management practices and include measurable goals for each such practice.

The Second Department rejected the NRDC’s argument that the General Permit created a self-regulatory system that failed to ensure compliance with the CWA.  In the appellate court’s view, the following factors ensured compliance with the CWA: (1) the General Permit required a municipality to submit a complete and accurate notice of intent; (2) the NYSDEC could refuse to accept a notice of intent that failed to comply with the maximum extent practicable standard; (3)  a public comment period of at least 28 days needed to be provided; and (4) the NYSDEC had the legal  authority to enforce compliance with the CWA if it determined that an MS4 failed to implement its storm water management plan or otherwise failed to comply with the requirements of the General Permit.

The New York Court of Appeals should issue its decision in the next few months.

 

“Vapor intrusion” refers to the process by which volatile chemicals move from a subsurface source into the indoor air of overlying or adjacent buildings.  The New York State Departments of Health (“NYSDOH”) and Environmental Conservation (“NYSDEC”) have identified vapor intrusion as a major concern and it has become a dominant issue in their oversight activities.  Moreover, because of the nature of sub-surface vapors, oftentimes vapor intrusion is not limited to on-site concerns but also to off-site impacts.

The NYSDOH adopted soil vapor intrusion guidelines that provide a basis for deciding how, where and when to conduct soil vapor intrusion evaluations and whether the sub-surface and indoor air sampling results fall within no action, monitoring or mitigation ranges.  The NYSDEC adopted a strategy for evaluating vapor intrusion at sites that are undergoing or have undergone remediation.

Almost any commercial, industrial or residential real estate transaction needs to take vapor intrusion into consideration as part of due diligence pre-purchase activities. This is particularly important if volatile chemicals, such as chlorinated solvents or petroleum-related compounds, were historically or currently used at the property.

Concerns about vapor intrusion led the New York legislature to enact a law in 2008 that requires property owners or owners’ agents (such as managing agents) to notify tenants and occupants about test results that exceed certain guidelines relating to indoor air contamination.  The statute is applicable only to vapor intrusion test results from certain specified entities, denominated as an “issuer” under the law. The tenant notification law requires that a notice be sent to tenants and occupants within 15 days after an “issuer” provides the owner or owner’s agent, (who themselves can be “issuers”), with test results that show exceedances of either the NYSDOH vapor intrusion guidelines or an Occupational Safety and Health Administration guideline for indoor air quality.  The law specifies the content of the notice.  The law also contains specific notice provisions applicable to prospective tenants, where the site has indoor air quality engineering controls or on-going monitoring of indoor air quality.