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Nysba Fall 2016 | Vol NYSBA FALL 2016 | VOL. 36 | NO. 2 The New York Environmental Lawyer A publication of the Environmental Law Section of the New York State Bar Association Inside • The Environmental Lawyer’s Role in an Environmental Crisis • Fractured: Cracks in the Hydraulic Fracturing Regulatory Structure • Addressing Lead Contamination of Drinking Water in New York State • Where Did All of the Fields Go? From the NYSBA Book Store Real Estate Transactions: Contaminated Property Mitigation Section This book covers sales and lease agree- Members get ments for discussing how to resolve the 20% discount* environmental concerns of all parties to an with coupon code agreement; due diligence and reporting PUB8406N requirements; liability, tax consequences, and cleanup programs; types of contamination; AUTHOR and offers recommendations James P. Rigano, Esq. for remediation. PRODUCT INFO AND PRICES James P. Rigano, Esq., brings a wealth of experience to this publication – 2011 / PN: 4049 / 96 pages, his legal practice having focused exclusively on environmental law issues softbound over the last two decades. Having worked at both the state and federal levels, the author has dealt with environmental issues concerning brown- NYSBA Members $45 field development projects, hydroelectric facilities, and major transmission List Price $55 lines, and has handled litigation involving open space, wetlands, and air $5.95 shipping and handling within the continental U.S. The cost for shipping and handling outside pollution issues. the continental U.S. will be based on destination and added to your order. Prices do not include applicable sales tax. *Discount good through December 30, 2016. Get the Information Edge NEW YORK STATE BAR ASSOCIATION 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB8406N Table of Contents Page Message from the Outgoing Chair ..............................................................................................................................................4 Michael Lesser Message from the Incoming Chair ..............................................................................................................................................5 Larry Schnapf Message from the Issue Editor .....................................................................................................................................................8 Keith Hirokawa Message from the Student Editorial Board ................................................................................................................................9 David Crossman for the SEB EPA Update ...................................................................................................................................................................................10 Marla E. Wieder, Chris Saporita, Joseph Siegel and Mary McHale DEC Update ..................................................................................................................................................................................19 Randall C. Young Environmental Protection Bureau Update ...............................................................................................................................20 Andrew Gershon and Rebecca Fromer Section News Member Profiles ....................................................................................................................................................................26 Member News ..................................................................................................................................................................27-28 Committee Reports ...............................................................................................................................................................29 Section Program Report .......................................................................................................................................................33 Marla E. Wieder New York Environmental Laws Affecting Commercial Leasing Transactions ...................................................................36 Larry Schnapf The Environmental Lawyer’s Role in an Environmental Crisis ...........................................................................................44 Daniel Riesel and Adam Stolorow The Evolving “Nature” of Environmental Risk: A Responsible Approach for Residential and Commercial Real Estate ...............................................................................................................................................49 Frank Piccininni Fractured: Cracks in the Hydraulic Fracturing Regulatory Structure ..................................................................................56 Ahmed Javaid Where Did All of the Fields Go? ................................................................................................................................................69 Nick Zapp Addressing Lead Contamination of Drinking Water in New York State .............................................................................78 Ria Rana Influence of U.S. Law on Development of Environmental Law in Other Countries .........................................................81 Kiki Torpey Perfluoroalkyl Compounds (PFCs) in the Village of Hoosick Falls, Rensselaer County: Health Risks and Successive Approximation Toward Enforceable National Regulation ..........................................88 Robert A. Michaels Administrative Decisions Update ........................................................................................................................................... 112 Robert A. Stout Jr. Recent Decisions and Legislation in Environmental Law.................................................................................................... 113 Student Editorial Board NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 3 Message from the Outgoing Chair My past year as Section Chair natural gas (LNG) storage regulations. These regulations has sped by in a blur. There have place a conservative 70,000 gallon cap on LNG storage. been so many excellent events, Ironically, the extraction or storage of that natural gas only meetings with Section members, became of interest due to the recent national development and revelations about our and usage of horizontal hydraulic fracturing (fracking) profession that I scarcely know which is banned in New York. where to begin. So, I will keep it simple as I prepare to hand over The same array of public resistance is now being the reins to incoming Section applied to the proposed Pilgrim oil pipeline which would Chair—and good friend—Larry use mostly public right-of-ways to connect the Port of Schnapf. First, some current Albany rail hub to crude oil refineries in New Jersey. The events need to be reviewed. Michael Lesser primary purpose of this pipeline would be the transfer of Midwest-generated Bakken crude oil from rail tankers A Tale of Three Pipelines, a Rail Hub, directly to the pipeline. In a twist, the pipeline would also and a Subpoena allow for the northward flow of refined heating fuel in lieu The multi-tiered war—an accurate term in my of tanker traffic on the Hudson River. But this proposed opinion—against any industry related to carbobased fuels pipeline also runs afoul of the heavy opposition to the and emissions continues unabated, and with measurable continued transport of Bakken crude via oil tank cars success in New York if one starts with the state’s 2015 ban (a/k/a the Bomb Trains) via the Port. Forgotten in the on natural gas fracking. heavy scrutiny and resistance to the Pilgrim pipeline is the 2011 grounding of an oil tanker on the Hudson River On the natural gas pipeline front, the proposed North that was carrying Bakken crude downriver. Only the East Direct (NED) pipeline which would have crossed safeguards in tanker design implemented after the Exxon the Albany area to connect with Massachusetts gas Valdez oil spill in Alaska prevented a major oil spill on the users appears dead at this time (June 2016). Fluctuating Hudson. energy markets are cited as the immediate reason for the operator’s withdrawal of the project application In addition, all carbon fuel industries and their but the broad and extensive public outcry against the agents are now under the potential legal shadow of project certainly played a significant part in this project’s state enforcement for the offense of man-made global termination. This opposition included local groups and climate change denial. Nationally, a collaboration of municipalities as well as statewide and national anti- state’s Attorney Generals—led by New York Attorney carbon global climate change activists. General Eric Schneiderman—have issued subpoenas or are otherwise investigating numerous parties such as In a separate but similar project, the proposed ExxonMobil in support of the allegation that the parties Constitution natural gas pipeline has been stalled by fraudulently misled investors and the public about the state administrative action. This pipeline would cross nature of climate change. the western edge of the Albany area and then connect to existing pipelines. After a lengthy review, however, Meanwhile, in the waning days of the current state the New York State Department of Environmental legislative session, a proposed law has been introduced Conservation (NYSDEC) denied a necessary water- that seeks zero percent greenhouse gas emissions from quality permit for the project. The operators
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