Tonawanda Coke Corporation Enters into a $12 Million Settlement with DEC and EPA for Alleged Violations of State and Federal Environmental Law

Posted By on September 25, 2015

The U.S. Federal Government and the State of New York jointly announced on May 11, 2015 a $12 million settlement with Tonawanda Coke Corporation for a litany of alleged environmental violations at TCC’s western New York coke manufacturing facility.

The settlement comes largely as a result of a concerted effort by the local community to attract regulators’ attention to operations at the facility. The community conducted its own air toxic monitoring which identified pollution problems emanating from the facility, and EPA Regional Administrator Judith Enck stated that it was the community’s actions that “spurred government action to protect the community” against what she dubbed an “environmental outlaw.” (more…)

DEC Issues New York State’s Official Rationale for Fracking Ban

Posted By on September 4, 2015

DEC has issued its long-awaited environmental impact study for high volume horizontal fracturing, or fracking, in New York State. This document contains the state’s official findings on the environmental and human health impacts of fracking, namely, that too much uncertainty surrounds the impacts of the process to proceed with issuing permits for fracking.

This constitutes the legal basis for the state’s highly publicized ban on fracking. Formally known as the Findings Statement for the Final Supplemental Generic Environmental Impact Statement on the Oil, Gas and Solution Mining Regulatory Program, it has been seven years in the making. (more…)

New State Legislation Requires Increased Climate Resilience for New York Infrastructure

Posted By on January 21, 2015

As in other areas of environmental policy, New York State is a leader in grappling with global climate change.  Since 2009, the New York State Department of Environmental Conservation has had a policy in place that requires it to consider energy use and greenhouse gas emissions when it prepares or reviews an Environmental Impact Statement under the State Environmental Quality Review Act.

One of many climate-related policies, it was put in place to help mitigate the state’s contribution to climate change. But with the impacts of climate change increasingly being felt in New York, the state’s focus has expanded from climate change mitigation to include adaptation as well. Accordingly, Governor Cuomo has recently signed into law a bill that will help ensure that the state’s infrastructure is prepared for future climate hazards. (more…)

When is Judicial Review Available for an Ongoing Federal Superfund Remediation?

Posted By on January 2, 2015

The U.S. Supreme Court has recently declined to consider a case centering on the question of when a citizens’ group may challenge an ongoing environmental remediation under the federal Superfund law. The Court’s decision lets stand a May 2014 ruling by the Seventh Circuit that chipped away at Superfund’s general prohibition on legal challenges to ongoing removal or remedial actions. (more…)

D.C. Circuit Gives EPA’s Cross-State Air Pollution Rule the Green Light—For Now

Posted By on December 22, 2014

The United States Court of Appeals for the District of Columbia Circuit has lifted a nearly three-year-old stay on EPA’s Cross State Air Pollution Rule (“CSAPR”), a contentious rule designed to regulate air pollution that is generated in certain states and drifts downwind to others. EPA promises that CSAPR will create billions of dollars in public health benefits, but a number of states and industry groups maintain that the rule is too onerous. (more…)

New York’s Highest Court to Weigh in on Who Bears the Cost of Regulatory Inaction on Fracking

Posted By on December 5, 2014

Fresh off its hotly anticipated August 2014 decision upholding the right of municipalities to zone oil and gas extraction operations out of their towns, the New York State Court of Appeals is set to weigh in on another oil and gas extraction issue. This latest matter arrived at the Court of Appeals through a somewhat unusual route, but promises to decide whether landowning lessors or industry lessees bear the cost of state level regulatory inaction on high volume hydraulic fracturing of shale with horizontal drilling (also known as fracking). (more…)

Perfluorinated Chemicals: Emerging Contaminant, Emerging Liability

Posted By on November 18, 2014

Despite – even because of – their useful properties, perfluorinated chemicals (“PFCs”) are increasingly thought to be dangerous for the environment, and potentially humans. PFCs are manmade substances with the ability to repel both water and oils, and are responsible for the stain repellant properties of your rug, the sauce-resistant properties of your takeout container, and the nonstick properties of your frying pan.

But PFCs are also suspected carcinogens that do not easily break down in the environment and accumulate in organisms over time. Despite an EPA program founded in 2006 to achieve a 95% reduction in emissions of certain PFCs, they are increasingly observed in ecosystems around the country and around the world. They are even being detected in human blood and breast milk. (more…)

EPA Blocks Clean Water Act Funding for Tappan Zee Bridge Reconstruction

Posted By on October 24, 2014

The U.S. EPA easily rejected Governor Andrew Cuomo’s loan request, refraining from calling it chutzpah of the highest order: the Governor tried to pass off bridge construction as an environmental project worthy of the federal Clean Water State Revolving Fund (CWSRF).   (more…)

EPA Clarifies What Phase I Environmental Site Assessment Procedure Satisfies its All Appropriate Inquiries Rule

Posted By on October 20, 2014

As most folks in the commercial real estate industry know, the Bona Fide Prospective Purchaser exemption from liability under the federal Superfund law is a very useful tool. Accordingly, a Phase I Environmental Site Assessment is standard practice for nearly every purchase of commercial real estate because it helps to satisfy EPA’s “All Appropriate Inquiries” requirement for obtaining BFPP status and avoiding the often harsh liability associated with Superfund.

However, a final rule published by the EPA on October 6, 2014 clarifies the acceptable protocol for a Phase I ESA. Effective October 6, 2015, EPA’s AAI regulations will only reference the 2013 standard procedure for a Phase I ESA (ASTM E1527-13). EPA is formally removing the reference to the 2005 standard (ASTM E1527-05) from the AAI regulations due to confusion over what the 2005 standard required. Even so, EPA has delayed the effective date of the rule by one year so that any ongoing Phase I ESAs using the 2005 standard can be concluded. (more…)

New York Attorney General’s Office Releases Report on Extreme Rainfall Trends in New York State

Posted By on October 17, 2014

Over the past decade, the changing climate has contributed to an increase in the number of extreme weather events throughout the world.  New York State is no exception.  Here, we rely on plentiful water resources to provide our necessities such as agriculture, energy, and drinking water.  However, this makes New York particularly vulnerable to these drastic weather conditions.  The effects of climate change upon our community cannot be ignored. (more…)