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 have legally major state power producers by 2050. The proposed “New challenged this determination in federal court citing York State Climate and Community Protection Act” may federal (FERC) pre-emption among other grounds. be viewed as an outlier but it would, if passed, encompass However, like the opposition to the NED pipeline, this many of the administrative limits and policies already project also faced vehement and widespread public adopted by the state. opposition from local, state and national parties. It is worth noting as well that the Environmental Furthermore, the same opposition was strongly expressed Law Section is involved in tracking, reporting, and to NYSDEC and other government entities involved in the influencing state global climate change law and policy. To decision-making process. this end, the Section’s Global Climate Change Committee It is worth noting that both the NED and Constitution remains active and at the forefront of policy making. At pipelines were proposed to ease the increasing flow of the request of New York State Bar Association (NYSBA) natural gas generated in the Marcellus Shale formation President Claire P. Gutekunst, the GCC Committee has in Pennsylvania to customers in the greater northeast. partnered with Pace Law School to update and rewrite the Furthermore, if there was any doubt about the state’s Section’s now dated 2009 GCC Report. This is a complex general hostility to Marcellus natural gas as an alternative fuel, one need only review New York’s 2015 revised liquid Continued on page 6

4 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 Message from the Incoming Chair

Thanks to the hard work of Joint Programming: The Section will be reaching out my two predecessors, Terresa to other sections or committees of the NYSBA as well as Bakner and Michael Lesser, other bar associations to expand the audience and scope the state of the Environmental of our programming. For example, the ABA Section of Law Section is good. Section Environment, Energy and Resources co-sponsored our membership is once again Oil Spill Symposium and Drinking Water Conference. hovering around 1,000, our In addition, we are planning to develop programs with membership is younger and more the NYC Bar Association Committee on Animal Law and diverse, and we have a financial the Animal Legal Defense. We are coordinating with the surplus. NYSBA liaison for minority bar associations to make sure that those groups are aware of Section programs that may These achievements are Larry Schnapf be relevant to their membership and provide them with remarkable because they have the opportunity to participate in our events. been accomplished during a time when bar memberships were down. Your new slate of officers is committed to Social Media: While lawyers have written articles for building on the success of the past year and to make the print media, many are now blogging. We have established Section the pre-eminent organization for environmental a LinkedIn page where news, regulatory and caselaw lawyers practicing in New York. To do this, we will developments are posted on a daily basis. We encourage be launching a series of initiatives that will enable the members to post newsworthy articles and share firm Section to provide members with timely and relevant blogs on the LinkedIn page or in our new Communities programming and content across a variety of delivery blog. Posting links to firm blogs not only provides value platforms to enhance membership experience. to members, but is also a free form of marketing since sharing links to firm blogs helps expand the audience and We know that environmental lawyers have a directs traffic (“eyeballs” in social media parlance) to firm number of choices among bar associations and we are websites. Sharing firm blogs can enhance firm branding dedicated to making the Section an indispensable part and help establish firm members as thought leaders. of your professional life. We encourage all members to become active in Section activities. We urge all members, The Section is now using Online Community as the especially young and new members, to become active in principal platform for communicating with members one of our substantive law committees. If you have an and it has replaced the old listserve. All Section idea for an article, contact the editor of our journal, The members have been automatically enrolled so that you New York Environmental Lawyer (TNYEL). If you are more should be receiving messages via your emails. Visit the comfortable blogging, volunteer to post content on our Section’s Community Home Page to start or participate blog. If you enjoy public speaking and have a topic you in discussions. The discussions feature is a great way would like to talk about, contact the relevant committee for committees to communicate with other committee or send us a note about your idea and we will make sure members and share news with the rest of the Section. it gets consideration. If you enjoy organizing conferences, Members can also use the discussion feature to post consider participating in our CLE or awards committees. questions. We will also be posting environmental law employment opportunities on the Community Home To keep members informed of important Page. developments, the Section is adopting a number of innovative strategies: Our Community Home Page can be accessed by visiting our Section website and clicking on the “Online Rapid Response Programming: In addition to our fall Community” tabs located on the left menu and in the and winter CLE programs, spring Oil Spill Symposium, middle of the webpage next to the NY Environmental and November hazardous waste program, the Section Lawyer tab. is initiating rapid-response programming consisting of conference calls, webcasts, and non-CLE programs In addition, we are moving our Section blog from the that examine regulatory or case law developments in Section website to our Community Home Page. Simply environmental law. For example, the Section’s Brownfield click on the green “add” button next to the “Community Task Force held a conference call within two weeks of Blogs” heading and then write away. The feature is easy the enactment of legislative amendments to the state to use. At the bottom of your blog post, you will see brownfield law. In May, our Troubled Waters at Pace “Who can read your blog entry? The default is Selected University covered the regulatory and legal issues Community (i.e., the Section) but if you want your post associated with the PFOA contamination in Hoosick Falls to be available to the general public, simply hit the down as well as lead in drinking water. arrow and click on “public.”

Continued on page 7

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 5 Message from the Outgoing Chair Continued from page 4 and tedious assignment. However, upon completion, the to ensure the survival and vibrancy of our Section. I fully updated report will be presented to the NYSBA House of believe that our Section’s efforts to improve our member Delegates for formal recognition and adoption by NYSBA. services and benefits have also been a strong factor in this My thanks to the Section members currently representing resurgence. our Section and NYSBA in these critical legal and policy matters. I also wish to acknowledge Editor Miriam Villani, the issue editors, student volunteers, and article contributors Hoosick Falls Water Quality and Official Silence of The New York Environmental Lawyer for the revised The Village of Hoosick Falls drinking water faster publishing schedule. By adjusting the content contamination reaction and response continues to unfold quantity of each issue, a more frequent publishing both legally and otherwise. Undoubtedly, this complicated schedule has been instituted. As a result, TNYEL is now saga will continue to develop as various legal actions approaching the goal of publishing four issues annually. move forward involving the discovery of the industrial It is available to members online for those who wish to chemical PFOA and related compounds in the Village’s opt out of the hard-copy version. Well done and many water supplies. thanks to all involved. The questions about the delayed response by state Lastly, the Section’s online and social media platforms agencies and the applicable water quality standards continue to evolve and inform. These include the Section remain largely unanswered. Perhaps the most disturbing blog (Envirosphere), the Section website, LinkedIn and the trend in this matter is the reluctance of some state officials recently introduced NYSBA Online Communities and Law to organize or attend public hearings on these issues. Hub platforms. In addition, thanks to the efforts of our In particular, both houses of the legislature have yet to cabinet members, we have started to use live streaming schedule public hearings on the Hoosick Falls issues online web services for our program events. By using despite pending proposed legislation based on this these varied resources we can only improve our member calamity. Hopefully, this will change in the near future. services and benefits in the future. In this regard, it should be noted that this past spring Finally, a Brief Thanks the Environmental Law Section held two public events This space is inadequate to even begin to express focused on Hoosick Falls and related water quality my gratitude to numerous Section members, our many matters (one in NYC and one in Albany). Therefore, I am sponsors and NYSBA staff for their contributions to the proud that our organization was able—in some small Section this past year. By my estimate, our Section has way—to serve the legal community and the public at large sponsored, co-sponsored, organized or been represented by providing alternative forums for discussions about at approximately three dozen events of various kinds at these important environmental and legal issues. different locations throughout the state. Approximately 100 Section members (10% of our Section membership), Section Administrative Status NYSBA staff, and more than 20 sponsors have volunteered I will leave the details of the Section’s administrative their time, support, and expertise to organize and status to the incoming Chair and his cabinet. But suffice operate these functions. The events run the gamut from it to say that due to the extraordinary professionalism the Section’s major meeting-CLE events to Section of our various committees and co-chairs, the Section’s representation at various NYSBA functions such as the administration has demonstrably improved in recent annual law school diversity reception. Regardless of size years. This includes fiscal reform, a balanced budget, and or focus, each event served to advance the Section’s profile the accumulation of a sizable surplus. and improve the services of our Section for its members The Section’s membership decline has also been and the public. reversed (for now). Much of this turnaround can be In addition to these events, I also wish to recognize credited to the pro-active and coordinated efforts of both and thank our members involved in our active and our Diversity and Membership Committees. The NYSBA growing publication activities including Miriam Villani, Pathway to the Profession program for law students and the Editor in Chief of The New York Environmental Lawyer, new attorneys also contributed to our success. So, despite as well as all of the individual issue editors, student some reverses this past spring—which impacted the entire editors and the numerous contributors. Much credit must bar association—we have managed to increase our overall also be given to Blog (Envirosphere) Editor Sam Capasso Section membership since the spring of 2015. Membership and our unofficial social media czar, Larry Schnapf, for currently hovers at about the 1,000 members level. their valuable contributions to the improvement of Section I am also particularly pleased to report that roughly communications and outreach. one-third of our membership consists of young attorneys I want to wholeheartedly thank my extended Section (admitted 10 years or less) or law students. This will help Cabinet for their support and efforts including Vice Chair

6 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 Larry Schnapf, Treasurer Kevin Bernstein, Secretary Marla Wieder, Section Council representative Gail Port, Diversity Committee Chairs Joan Leary Matthews and John Greenthal, and Membership Chairs Rob Stout and Frank Piccininni. Their contributions and support were invaluable. CasePrepPlus Finally, NYSBA staffers Lisa Bataille, Kathy Plog, and Lori Nicoll stand out for special commendation for efforts above and beyond in service to the Environmental Law Section. Together with many other NYSBA staff members, NEW YORK STATE BAR ASSOCIATION they ensured our success this past year. Serving the legal profession and the community since 1876 Past Section Chairs do not disappear and I certainly do not plan to do so. But while I do plan to maintain a lower profile, I reserve the right to pop up from time to time and provide advice—both solicited and unsolicited. Save time while keeping You all have been warned! In closing, let us recall the up to date on the most words of the late radio host Bob Grant, “Your influence counts! Use it!” I hope to see you all soon at a Section significant New York event. appellate decisions Best wishes, Michael J. Lesser Chair, Environmental Law Section, 2015-2016 An exclusive member benefit, the CasePrepPlus service summarizes recent and significant New York Message from the Incoming Chair appellate cases and is available for Continued from page 5 free to all NYSBA members. It includes The Section will be hosting a number of webinars weekly emails linked to featured to help members learn how to get the most out of Communities. cases, as well as digital archives of each week’s summaries. Focus on Committees: The committees are the heart of the Section. They are where members become involved in the Section and begin to form professional relationships. To access CasePrepPlus, Our committees enable us to promote our diversity and visit www.nysba.org/caseprepplus. membership goals, mentor young attorneys, and identify future leaders. When new members join the Section, we ask them what areas of environmental law they are interested in and arrange to have the respective committee co-chairs contact the new members We are asking each committee to produce one piece of work product each year, which could include a webinar, participating in a program, publishing an article in TNYEL or preparing a year-in-review paper. Co-chairs will be asked to prepare committee agendas for the year ahead. To help committees achieve these goals, the officers will act as liaisons to various committees and serve as a resource for committees while they plan and implement their agendas. Our goal is to help Section members grow professionally. At the end of the day, we want our members to be able to say that they have become better lawyers because of their involvement in the Section. Larry Schnapf 2016-2017 Chair Environmental Law Section

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 7 Message from the Issue Editor Language Games in Election Season During the election season, who, in turn, then have less money to feed and clothe it seems so easy to fall prey to their children. From this perspective, environmental rhetoric as the candidates employ protection is a difficult choice to make, and in large part a variety of methods to win votes. appears to require unrecoverable and even unreasonable One method establishes a binary costs. choice: us or them, rich or poor, The problem with the argument is that it is seldom, reasonable or irrational. We are if ever, an accurate description of environmental told that if we vote one way, we regulation. The argument seeks ignorant listeners, the vote to secure a better choice for type who would misunderstand or even willingly ignore our futures; otherwise we suffer the reality of environmental quality: there are many ways the consequences. In some cases, Keith Hirokawa to spend money on environmental quality that create the choices present very real wealth and jobs, rather than destroy them. In fact, studies dilemmas; in most, however, the decision we are told on this question commonly conclude that environmental to make is based on a fallacy. Many of these fallacies protection correlates well with economic gain. depend upon us missing the non sequitur, believing in the either/or choices, or finding a causal connection where Why might this be? Surely we cannot deny that one has not been established. businesses subject to environmental regulation have to spend money to comply with regulatory demands, Make no mistake, we use these same rhetorical tools and that absent environmental law, these costs would in our common, everyday communications: we may not interfere with business operation. The problem is allow our children to choose between brown or blue nonetheless three-fold: first, we regulate because the pants, but not whether to wear pants at all; we choose way we used to do business resulted in contamination a better life by buying the right toaster oven or some of the places we live, work and play (which in turn such thing. Rhetoric is not just a tool for persuasive led to illness, suffering, and death), just as we see now communication, it is common mode of communication. in Hoosick Falls where there is PFOA contamination; The difference is that, in our daily lives, we rarely take second, the costs of regulatory compliance are typically the time to analyze the reliability of the argument’s lower than the damages caused by unrestricted pollution; architecture. and third, those injured by environmental contamination At present, my favorite example of the fallacies is are often not the ones causing the contamination. the appearance of competition between environmental In the end, the benefits of environmental regulation quality and jobs. Specifically I am interested in the suggest that the choice is not between two alternatives environment/jobs relationship when posed as a “zero- (environment or jobs) but three (environment or jobs or sum game”. The notion of the zero-sum game comes environment AND jobs). from game theory and describes an “I win, you lose” The third alternative—the one in which everyone (or vice versa) situation in which the amount you lose is wins—is not an exception or an outlier. Rather, the third proportional to my gains in winning. alternative is almost always readily available and has In part, it is worthwhile looking at the become increasingly cost-effective. Recent examples of characterization of a choice as a zero-sum game when the third alternative include green building (which not it accurately depicts the circumstances. As in most only drives innovation and development, but produces game theory, the zero-sum description is useful for healthier, long-lasting structures), renewable energy understanding the outcomes of difficult choices; the development (driving technological developments to game provides insights into how particular resolutions produce cheaper, cleaner energy); and energy- and water- may have been predictable under the circumstances. efficient products (products that demand fewer resources However, it is probably reasonable to say most in design, construction, and operation). constructions of zero sum choices are made with When faced with rhetorical tricks like the misuse of persuasion rather than predictability in mind. zero-sum games, it is important to understand that we Take, for example, the “environment versus jobs” are being asked to make leaps—leaps of logic and leaps argument. According to the argument, every dollar spent of faith. We are asked to accept the zero-sum choice as a on improving the quality of our environment results in a fact, and as such, to ignore sound policy alternatives. We dollar that cannot be used to pay an employee. The more money we spend on minimizing the destruction of the environment, the less money we have to pay our workers Continued on page 9

8 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 Message from the Student Editorial Board

This summer, against a backdrop of social justice law is literally everywhere—a ridiculously obvious playing out over social media, I was reminded of my statement and yet a vital reminder that “environmental” first semester of law school. This foray into law school covers not just where we go to hike or swim. The coincided with my first foray into homeownership, a environment is not just talking to the in-laws about backdrop of seemingly worst-case scenarios from 1L conservation easements on their 14-acre parcel, or Property set against the natural worries that come with scouring residential pesticide regulations in one’s buying a house. Although this was the first time that the neighborhood. The environment is home, whether study of law and the concept of home would intersect, it we choose to define “home” as a planet impacted by would not be the last. climate change, the places that we have lived, or a house impacted by fuel oil. Immediately following my 2L year, I returned briefly to Southeast Alaska for the first time “home” since More importantly, “environmental” is not an leaving that state for law school. On a ferry ride north abstraction. When I tell relatives who ask what type through the Lynn Canal, I was able to snap a couple of of law I “want to go into,” they usually envision pictures of the mining operation behind Coeur Alaska v. saving bunnies rather than the removal of a residential SEACC,1 the Clean Water Act case in which the authority underground storage tank. They might think of the of the U.S. Army Corps of Engineers to issue a permit transportation of Bakken oil through New York’s capital allowing discharge of gold mining wastewater into city, but not look beyond the immediate and economic nearby Lower Slate Lake (a navigable body of water) was impacts of personal energy choices. upheld. The intersections between the concepts of justice and Upon returning to Albany, I attended the NYSBA home may seem conceptual rather than practical, but—as Environmental Law Annual Oil Spill Symposium. This with the rest of daily life—experience generally proves coincided with a part of my summer employment, otherwise. researching New York’s Oil Spill Act. It also coincided David Crossman with annual maintenance on our home’s oil-burning Albany Law School ‘17 boiler, and a more comprehensive rethinking of our current home heating choices. Endnote 1. 557 U.S. 261 (2009). These are not just Things I Did on My Summer Vacation. These were all reminders that environmental

Message from the Issue Editor Continued from page 8 Follow NYSBA on Twitter are asked to believe in the idea that playing the zero-sum visit www.twitter.com/nysba game and voting for one or the other will make a real difference. and click the link to follow us and stay up-to-date on the latest The point of the third alternative—often referred news from the Association to as the “sustainable” alternative—is not to take jobs or private property. The point is not to prioritize nature over livelihoods. Rather, the third alternative takes a flexible approach to new technologies and new development in which proposals are measured by the extent to which they reflect economic, environmental, and social needs. These needs are, of course, our own. So what of the zero-sum game? If we want to, we can continue to believe that environmental quality takes away jobs and forces average folks into poverty. But, if we do, we should be willing to take the blame. Keith Hirokawa Issue Editor

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 9 EPA Update By Mary McHale, Chris Saporita, Joseph Siegel, and Marla E. Wieder

Mary McHale Chris Saporita Joseph A. Siegel Marla E. Wieder

On May 19th, EPA announced a lifetime drinking and more recent calls for EPA to assess PFOA under the water health advisory of 70 parts per trillion (ppt) for newly reformed Toxic Substance Control Act, we will con- human exposure to Perfluorooctanoic Acid (PFOA) and tinue to monitor and encourage a meaningful dialogue on Perfluorooctane Sulfonate (PFOS).1 Health advisories pro- this issue in conjunction with ELS and our other partners. vide information on contaminants that can cause human health effects and are known or anticipated to occur in PRESS on PESTICIDES drinking water. EPA’s health advisories are non-enforce- EPA Working with CDC to Battle Zika Virus in Puerto able and non-regulatory but provide technical informa- Rico tion to states agencies and other public health officials on EPA is working closely with CDC to help Puerto Rico health effects, analytical methodologies, and treatment in its efforts to control mosquitoes that transmit Zika and technologies associated with drinking water contamina- dengue and other diseases. CDC is leading the effort with tion. EPA’s health advisories are based on the best avail- EPA providing technical assistance on integrated pest able peer-reviewed studies of the effects of PFOA and management and pesticide safety. Unfortunately multiple PFOS on laboratory animals (rats and mice) and were also studies have found that Zika is spreading in Puerto Rico informed by epidemiological studies of human popula- and is a major risk to tions that have been exposed to perfluoroalkyl substances pregnant women and (PFASs). These studies indicate that exposure to PFOA their babies. EPA is and PFOS over certain levels may result in adverse health currently providing as- effects, including developmental effects to fetuses during sistance on controlling e.g., pregnancy or to breastfed infants ( low birth weight, mosquitoes throughout e.g., accelerated puberty, skeletal variations), cancer ( tes- their lifecycle and has e.g., ticular, kidney), liver effects ( tissue damage), immune launched a dedicated e.g., effects ( antibody production and immunity), thyroid Mosquito Control Activities in Puerto Rico webpage to e.g., 2 effects and other effects ( cholesterol changes). EPA keep the public informed.3 The latest report from the is particularly concerned about these type of chemicals as Puerto Rico Department of Health (as of 6/23/16) shows they are persistent in the environment, bioaccumulative 2,162 confirmed cases of Zika including: 299 pregnancies, in wildlife and humans, and are toxic to laboratory ani- 42 hospitalizations, 14 Guillain-Barre cases being tracked, mals and wildlife. and one death.4 The CDC has reported locally acquired Considering the growing concerns about PFCs in mosquito-borne cases of Zika in the continental United drinking water systems across the country, the patchwork States, making it even more important for everyone to of recommended exposure levels, the countless lawsuits be aware of the situation and reduce risks of exposure to Zika. For the most current information on Zika and tips to protect yourself and your families, visit the CDC’s Zika Virus website at http://www.cdc.gov/zika/index.html.

Pollinator Protection In June, EPA celebrated Pollinator Protection Week, a week dedicated to highlighting the importance of bees, bats, birds, butterflies and other pollinators. As we all

10 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 know, pollinators are a vital part of America’s economy Second review of the cleanup of the Hudson River and environment. Let’s not forget about our winged EPA initiated its second review of the cleanup of the friends when considering pest management practices in Hudson River PCBs Superfund site. The purpose of the our own yards this summer. See EPA’s website at www. five-year review is to ensure that the cleanup is working epa.gov/pollinator-protection for information on what as intended and will be protective of public health and you can you do to protect our pollinators. the environment. The first five-year review for the Site SUPERFUND NEWS was completed in 2012. Agreement with NYC on Gowanus Canal After six seasons of in-river work, dredging to re- move PCBs from a 40-mile stretch of the upper Hudson On April 14, 2016, the EPA announced a proposed River between Fort Edward and Troy was completed in agreement with the City of New York (City) that estab- the fall of 2015. The cleanup was conducted and paid for lishes the location for two combined sewage and storm by General Electric Company with EPA oversight. water overflow (CSO) retention tanks, included as part of the cleanup for the Site. The EPA held a public meeting The five-year review will include new data, includ- in Brooklyn on April 25, 2016 to explain the complex and ing fish, water and sediment data. EPA will also use all unusual proposed agreement and later extended the pub- available data for the project, including fish, water and lic comment period until the end of May.5 EPA received sediment data collected since the last five-year review. It dozens of substantial comments on the proposed agree- will evaluate whether the stated goals of the project are ment, many critical to potential delays in the cleanup. being met, or are expected to be met, based on the avail- Responses to such comments are contained in EPA’s able data. Several more years’ worth of post-dredging responsiveness summary which was released along with data will be needed to understand the reduction of PCB the final agreement. levels in fish as a result of the project. The review will also include a review of the cleanup plan for the areas of PCB- The final administrative agreement and order, issued contaminated sediment upstream of the areas targeted on June 9th, permits the City to locate an eight million for dredging (the remnant deposits). These areas are now gallon retention tank in the City’s preferred location, capped, maintained, and monitored. known as the “Head-of-Canal” location (Nevins St.), but it also holds the city to a schedule with monetary penal- EPA will hold public workshops with the Hudson ties imposed if it violates the schedule. Also, the EPA can River PCBs Site Community Advisory Group, which are require the City to place the tank in the Thomas Greene open to the public, to discuss the review. Following an Park location (which requires remediation) instead if cer- evaluation of data and discussions with the federal Hud- tain activities do not occur on schedule, including if the son River Natural Resources Trustees, New York State City is not able to acquire the land at the Head-of-Canal and the Community Advisory Group, the EPA expects to location within approximately four years.6 An adjacent issue the second five-year review report in late 2016 or 7 parcel is currently leased to Eastern Effects, a very suc- early 2017 and will make it available for public comment. cessful home-grown film studio. Large segments of the For more on the results of the dredging effort and the re- critically acclaimed FX series “The Americans,” are filmed view process, see EPA’s Hudson River website at http:// there. The studio has vowed that it is not giving up its www.epa.gov/hudson. production facility without a fight. Wappinger Creek Proposed for NPL Listing As discussed in prior articles, EPA issued its final In April, EPA proposed adding the Wappinger Creek cleanup plan for the Site in September 2013. The cleanup in Dutchess County to the NPL. Sediment within the two- includes dredging contaminated sediment from the ca- mile long tidal portion of the creek, which is downstream nal, capping certain areas and the construction of two from an industrial park, is contaminated with mercury, retention tanks. Without the retention tanks CSO dis- polycyclic aromatic hydrocarbons and other pollutants. charges would re-contaminate the canal after its cleanup. Mercury in sediment can build up in the tissue of fish and The plan also includes controls to prevent other land- other wildlife and pose a threat to people who consume based sources of contamination from compromising the them.8 For more than 180 years, an industrial park along cleanup. The canal design work is expected to continue the creek was used for textile dyeing, manufactured gas for another two years, followed by the start of full-scale plant operations, metal plating, ammunition production, cleanup construction at the top of the canal in 2018. The chemical manufacturing and other businesses. These in- EPA and the City have already agreed that one tank, dustrial activities contaminated the creek and surround- with a capacity of four million gallons, will be located at ing communities. There have been several investigations the Department of Sanitation salt storage lot. The final and cleanups within the industrial park; however, con- agreement is available at: https://semspub.epa.gov/ tamination adjacent to and downstream of the industrial src/collection/02/SC34404. EPA’s responsiveness to park still presents a risk. The portion of Wappinger Creek comments are posted at: https://semspub.epa.gov/src/ being proposed includes parts of the village of Wapping- document/02/395898. ers Falls and the towns of Poughkeepsie and Wappinger.

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 11 For Federal Register notices and supporting documents President Obama signed the bipartisan bill which was for these final and proposed sites, visit: http://www.epa. the first update to any environmental statute in at least 20 gov/superfund/sites/npl/current.htm. years.

Passaic River Cleanup TSCA was first passed in 1976 to help keep danger- While we don’t normally cover New Jersey cleanup ous chemicals off the market. At the time, health experts matters, the Passaic cleanup plan is certainly worthy of already knew that certain chemicals could cause serious note. In March of 2016, EPA finalized a plan to remove 3.5 health impacts, but the law itself fell far short of giving million cubic yards of toxic sediment from the lower eight EPA the authority it needed to get the job done. It be- miles of the Passaic River in New Jersey, followed by cap- came clear that without major changes to the law, EPA’s ping that entire stretch of river bottom. The sediment in hands were tied when it came to protecting people from the Passaic River is severely contaminated with dioxin, toxic chemicals—even when the risks were scientifically PCBs, heavy metals, pesticides and other contaminants proven. After many years for work and negotiation, this from more than a century of industrial activity. The lower reform is a major step forward toward protection of pub- eight miles of the Passaic is the most heavily contami- lic health. nated section of the river. Ninety percent of the volume of Here are a few highlights of the new law: contaminated sediments in the river are in the lower eight miles.9 • The new law requires EPA to evaluate existing chemicals, with clear and enforceable deadlines. A few notable points on the cleanup and enforcement is- EPA is now required to systematically prioritize sues: and evaluate chemicals on a specific and enforce- able schedule. Within a few years, EPA’s chemicals • This is one of the largest superfund projects in EPA program will have to assess at least 20 chemicals at history; a time, beginning another chemical review as soon • Over 100 pollutants have been identified; as one is completed. • Approximately 100 companies are potentially re- • Under the new law, EPA will evaluate chemicals sponsible for generating and releasing the pollut- purely on the basis of the health risks they pose and ants; then take steps to eliminate any unreasonable risks it finds. The old law was so burdensome that it • 3.5 million cubic yards of contaminated sediment prevented EPA from taking action to protect public will be removed by dredging the river bottom, health and the environment—even when a chemi- bank-to-bank, from Newark Bay to the Belleville/ cal posed a known health threat. Newark border; • The new law provides a consistent source of fund- • Sediment will be dewatered and transported likely ing for EPA to carry out its new responsibilities. by train for off-site disposal; EPA will now be able to collect up to $25 million a year in user fees from chemical manufacturers and • After dredging, the entire lower eight miles of the processers, supplemented by Congressional bud- river will be capped bank-to-bank; and geting, to pay for these improvements.10 • The cleanup is estimated to cost $1.38 billion. Waste Tracking on Track? Because of the nature and complexity of the Passaic In March, EPA announced the selection of a diverse River contamination, the EPA divided the investigation group of experts to join the Hazardous Waste Electronic and consideration of cleanup options into two studies— Manifest Advisory Board. The Advisory Board will advise one of the 17-mile stretch of the Lower Passaic from its the agency on the development and operation of an elec- mouth to the Dundee Dam and the other focused on just tronic system for the tracking of hazardous waste ship- the lower eight miles. Information gained from the 17- ments throughout the country. The Advisory Board will mile study was integrated into the EPA’s Record of Deci- also propose actions for the electronic manifest (e-Mani- sion for the cleanup of the lower eight miles. A portion fest) system—remember that from 2012?—that will align of Newark Bay is also being studied by one of the PRPs, with EPA’s e-Enterprise strategy. This will help streamline with EPA oversight. The record of decision is available at business processes and systems to reduce reporting bur- https://semspub.epa.gov/src/collection/02/AR63167. den on states and industry while providing EPA, states, 11 TSCA & RCRA UPDATE and the public with easier access to environmental data. The Advisory Board will beginning meeting periodically Toxic Substances Control Act (TSCA) Reform this year. EPA intends to deploy the e-Manifest system in In early June, the Senate passed H.R. 2756, the “Frank the spring of 2018. For more information, see: www.epa. R. Lautenberg Chemical Safety for the 21st Century Act,” gov/hwgenerators/hazardous-waste-electronic-manifest- the long-overdue TSCA reform measure. On June 22nd system-e-manifest.

12 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 AIR QUALITY ceptive and unfair advertising and sale of ‘clean diesel’ vehicles” violated the FTC Act.22 The settlements do not Consent Decree Lodged in Trader Joe’s Case resolve pending claims for civil penalties or any claims Under a proposed settlement agreement with the concerning 3.0 liter diesel vehicles.23 The settlements also United States, lodged in the United States District Court do not address any potential criminal liability.24 for the Northern District of California on June 21, 2016, Trader Joe’s Company, a national chain of specialty gro- The civil complaint filed on January 4, 2016, by the cery stores, agreed to reduce emissions of a potent green- Justice Department on behalf of the EPA, alleges that house gas at 453 of its stores.12 Volkswagen “equipped its 2.0 liter diesel vehicles with illegal software that detects when the car is being tested The United States alleged that Trader Joe’s violated for compliance with EPA the Clean Air Act by failing to promptly repair leaks of or California emissions R-22, a hydrochloroflourocarbon (HCFC) used as a cool- standards and turns on full ant in refrigerators that is an ozone-depleting substance emissions controls only and a potent greenhouse gas; by failing to keep adequate during the testing pro- servicing records of its refrigeration equipment; and by cess.”25 The CAA requires failing to provide information about its compliance re- manufacturers to certify to 13 cord. the EPA that vehicles will As a result of the settlement, Trader Joe’s will pay meet federal emission stan- dards; vehicles with defeat a $500,000 civil penalty and will, over the next three Image from www.inautonews.com years, spend an estimated $2 million to reduce cool- devices cannot be certi- 26 ant leaks from refrigerators and other equipment and fied. Use of defeat devices results in vehicles that emit, improve company-wide compliance.14 Trader Joe’s will during normal on-road driving, nitrogen oxide (NOx) at 27 “implement a corporate refrigerant compliance manage- up to 40 times EPA-compliant levels. ment system to comply with federal stratospheric ozone Under the settlements, Volkswagen “will offer con- regulations and to detect and repair leaks through a new sumers a buyback and lease termination for approxi- 15 quarterly leak monitoring program.” Under the settle- mately 500,000 model year 2009-2015 2.0 liter diesel ment, the company will “achieve and maintain an annual vehicles sold or leased in the United States and spend corporate-wide average leak rate of 12.1 percent through up to $10.03 billion to compensate consumers under this 2019, well below the grocery store sector average of 25 program.”28 The settlement of the CAA violations “also 16 percent.” At all new stores and major remodels, Trader requires Volkswagen to pay $2.7 billion to fund projects Joe’s must use non-ozone depleting refrigerants and at across the country that will reduce emissions of NOx least 15 of these stores must use advanced refrigerants, where the 2.0 liter vehicles were, are or will be oper- such as carbon dioxide, which have significantly less ated.”29 Over a three year period, Volkswagen will place 17 global warming potential than typical refrigerants. the funds into a mitigation trust which will be managed 30 This is the first EPA settlement to include require- by an independent trustee. “Beneficiaries, which may ments to repair leaks of HFCs in order to further reduce include states, Puerto Rico, the District of Columbia, and greenhouse gas emissions.18 In addition, the Trader Joe’s Indian tribes, may obtain funds for designated NOx re- settlement is the third in a series of national grocery store duction projects upon application to the Trustee. Funding refrigerant cases, including cases previously filed against for the designated projects is expected to fully mitigate Costco Wholesale Corporation and Safeway Inc.19 the NOx these 2.0 liter vehicles have and will emit in excess of EPA and California standards.”31 Under the Proposed Partial Settlement in Volkswagen Case CAA settlement, Volkswagen is also required to invest $2 On June 28, 2016, in two related settlements, one with billion, over 10 years, “toward improving infrastructure, the United States and the State of California and one with access and education to support and advance zero emis- 32 the U.S. Federal Trade Commission (FTC), Volkswagen sion vehicles.” AG, Audi AG, Volkswagen Group of America, Inc., and Proposal to Remove Affirmative Defense Provisions Volkswagen Group of America Chattanooga Operations, from Title V Programs and Permits LLC (Volkswagen) “agreed to spend up to $14.7 billion to settle allegations of cheating on emission tests and deceiv- On June 3, 2016, the Agency proposed to remove the ing customers.”20 “emergency” affirmative defense provisions, found at 40 C.F.R. §§ 70.6(g) and 71.6(g), from the CAA title V operat- The settlements partially resolve allegations by the ing permit program regulations.33 The title V emergency EPA, the California Attorney General, and the California provisions in the existing regulations establish an affirma- Air Resources Board (CARB) under the Clean Air Act tive defense that a source can use to avoid liability in a (CAA) and California laws which relate to the vehicles’ civil enforcement proceeding by demonstrating that vio- “use of ‘defeat devices’ to cheat emission tests.”21 The set- lations of certain emission limitations in a title V permit tlements also resolve FTC claims that Volkswagen’s “de- were caused by an “emergency” situation.34

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 13 In 2014 the D.C. Circuit, in NRDC v. EPA, vacated The EPA also took final action to rescind the clean the affirmative defense provisions in a MACT rule, find- data determination issued June 18, 2012, for NY-NJ- ing that it exceeded the Agency’s statutory authority.35 CT area and issued a new SIP call for the 1997 ozone The NRDC decision caused the EPA to evaluate the role NAAQS.48 The states in the NY-NJ-CT area may satisfy of affirmative defense provisions and to determine that the SIP call for the 1997 NAAQS by making timely sub- they are inconsistent with the enforcement structure of mittals to meet the Moderate area SIP requirements that the CAA.36 The Agency has removed affirmative defense now apply to this area for the 2008 ozone NAAQS.49 provisions from a variety of regulations and from SIPs; removal of these provisions from the title V regulations is CLIMATE CHANGE “designed to ensure that the EPA’s title V regulations are The United States Takes Steps on Climate Change consistent with the CAA.”37 Following the Paris Agreement If the rule is finalized as proposed, the EPA expects On Earth Day, April 22, 2016, the United States joined it will be necessary for many state permitting authorities 170 other countries at the United Nations in a signing to revise their title V programs to remove affirmative de- ceremony for the historic agreement reached on climate 50 fense provisions, though states may be able to retain af- change in Paris last December. The United States also firmative defenses as state-only provisions.38 In addition, participated in bilateral and multilateral efforts to further if finalized, the rule will require affirmative defense pro- the goals of the Paris Agreement. For example, the United visions to be removed from individual title V operating States and India announced plans in June 2016 to work permits.39 The Agency expects this will occur during the together to phase down the production and consump- on-going process of permit renewal, revision, or reopen- tion of HFCs, promote access to off-grid solar power, ing.40 strengthen and expand the highly successful U.S.–India Partnership to Advance Clean Energy (PACE), and mo- MATS Cost Consideration bilize investment in clean energy.51 On June 29, 2016, the On April 14, 2016, the EPA finalized its supplemental United States, Canada and Mexico agreed, among other finding confirming that it is appropriate and necessary to things, to strive towards a North American goal of 50% regulate air toxics, including mercury, from power plants clean power by 2025, support cross-border transmission after including a consideration of costs.41 EPA’s action projects for renewable energy, align six energy efficiency responds to Michigan v. EPA, 135 S. Ct. 2699 (2015), where standards or test procedures by the end of 2017, reduce the Court ruled that EPA erred in concluding that costs methane emissions from the oil and gas sector by 40-45% did not need to be included in the “appropriate and nec- by 2025, and support international partners in their miti- 52 essary finding.”42 gation and adaptation efforts.

2008 Ozone Marginal Area Rule EPA Proposes Design Details for the Clean Power Plan’s Clean Energy Incentive Program On April 11, 2016, the Administrator signed a final action determining whether the 36 nonattainment areas On June 16, 2016, EPA proposed design details for originally classified as Marginal for the 2008 ozone stan- the Clean Power Plan’s Clean Energy Incentive Program 53 dards attained or failed to attain by the Clean Air Act es- (“CEIP”). The framework for the CEIP was provided tablished attainment date of July 20, 2015, or qualified for when the final Clean Power Plan (“CPP”) was issued in 54 a one-year attainment date extension.43 2015. The June 16, 2015 proposal provides more details about the Program based on input received after ex- The Jamestown, New York, area was among 17 Mar- tensive engagement with community groups and other ginal areas that the EPA determined attained the 2008 stakeholders.55 The CEIP, which is a voluntary program ozone standards by the July 20, 2015, attainment date.44 rather than a requirement of the CPP, encourages early The New York, N. New Jersey-Long Island, NY-NJ-CT investments in zero-emitting renewable energy genera- (“NY-NJ-CT”) area was one of 11 Marginal areas that the tion and energy efficiency in low-income communities to EPA determined did not attain the 2008 ozone standards help states and tribes meet their goals under the CPP.56 by the July 20, 2015, attainment date, did not qualify for The proposal provides clarifications about project eligi- a one-year attainment date extension, and must be reclas- bility including: “expanding eligibility to solar energy sified as Moderate based on 2012-2014 air quality data.45 projects in low-income communities, providing states The EPA established a due date of January 1, 2017, by with the flexibility to choose one or more existing defini- which states with newly reclassified Moderate areas, such tions of low-income community, and how CEIP incentives as the NY-NJ-CT area, must submit State Implementation should be made available to eligible renewable energy Plan (SIP) revisions to address Moderate nonattainment and energy efficiency project providers.”57 As stated in area requirements for those areas.46 The reclassified areas the proposal, states will be incentivized by a matching must attain the 2008 ozone standards as expeditiously as pool of 300 million EPA allowances for mass-based state practicable, but not later than the Moderate area attain- programs and 375 million emission rate credits for rate- ment date of July 20, 2018.47 based state programs.58

14 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 The CEIP proposal was issued four months follow- methane emissions from existing oil and gas sources. ing the February 2016 Supreme Court stay of the Clean Administrator Gina McCarthy stated that, by issuing the Power Plan.59 EPA has indicated that during the stay and methane rules, “we are underscoring the Administra- associated court review of the CPP, no state is required to tion’s commitment to finding common sense ways to comply with the CPP. However, “many states and tribes cut methane—a potent greenhouse gas fueling climate have indicated that they plan to move forward volun- change—and other harmful pollution from the oil and gas tarily in cutting carbon pollution from power plants and sector.”72 More information on the methane rules can be have asked the agency to continue providing support found at: https://www3.epa.gov/airquality/oilandgas/ and developing tools that may support those efforts, in- index.html. cluding the CEIP.”60 By issuing the CEIP proposal, EPA is responding to the states’ requests, consistent with the EPA Releases Annual Inventory of U.S. Greenhouse stay, and the states will be better positioned to make Gas Emissions timely decision when the stay is lifted.61 Additional in- On April 15, 2016, EPA published its 21st annual In- formation on the proposal is available at: http://www. ventory of U.S. Greenhouse Gas Emissions and Sinks for epa.gov/cleanpowerplan/clean-energy-incentive-pro- calendar year 2014.73 EPA prepares the Inventory each gram. year on behalf of the United States, in cooperation with other federal agencies, to satisfy reporting requirements D.C. Circuit Sets Schedule for Clean Power Plan of the United Nations Framework Convention on Climate Litigation Change. According to the Inventory, U.S. greenhouse gas On May 16, 2016, the D.C. Circuit issued an order emissions dropped nine percent since 2005 and increased rescheduling oral argument on the Clean Power Plan for one percent in 2014 from 2013 levels due to increased 62 September 27, 2016. The oral argument had originally heating-related fuel use and transportation sector emis- been scheduled for June 2, 2016 before a three judge panel sions.74 Power plants were the largest source of emissions, but will now be held before the en banc court. Final briefs representing 30 percent of total U.S. greenhouse gas pol- 63 were due on April 16, 2016. The litigation in the D.C. lution. The transportation sector was the second largest Circuit proceeds while the Supreme Court’s stay of the 64 source of emissions, accounting for 26 percent, followed Clean Power Plan remains in effect. by industry and manufacturing at 21 percent. This year’s EPA Issues Final Methane Rules for the Oil and Gas inventory incorporates significant new emissions data Sector Consistent with the President’s Climate Action from EPA’s Greenhouse Gas Reporting Program and 75 Plan other sources. On May 12, 2016, EPA issued final rules for regulating More on the U.S. Greenhouse Gas Inventory Report methane from the oil and gas sector.65 These rules carry can be found at http://www.epa.gov/climatechange/ out the goals of President Obama’s Climate Action Plan66 ghgemissions/usinventoryreport.html, Inventory data and the White House’s March 2014 Methane Strategy.67 can be viewed and sorted using EPA’s Greenhouse Gas Methane has a global warming potential of more than 25 Inventory Data Explorer, available at http://www.epa. times that of carbon dioxide and is the second most emit- gov/climatechange/ghgemissions/inventoryexplorer/. ted greenhouse gas in the United States.68 The oil and gas sector is the largest source of methane emissions in the New Report on the Public Health Impacts of Climate country,69 and the rules will help achieve the President’s Change Released by EPA and Other Federal Agencies goal of cutting methane emissions from the oil and gas On April 4, 2016, EPA, along with seven other fed- sector by 40 to 45 percent from 2012 levels by 2025. The eral agencies and the White House Office of Science rules will also result in reductions of emissions of volatile and Technology Policy, released a report on the effects organic compounds (VOC) and toxic pollutants form the of climate change on public health.76 The report, “The oil and gas sector.70 Impacts of Climate Change on Human Health in the United States: A Scientific Assessment,” concludes that EPA issued three methane rules simultaneously on “every American is vulnerable to the health impacts as- May 12. One rule will reduce emissions from new, modi- sociated with climate change.”77 Among other findings, fied, and reconstructed sources in the oil and gas sector, the report concludes that, assuming mid-range growth for example, equipment at hydraulically fractured oil of global greenhouse-gas emissions, elevated summer wells.71 The two other rules, which clarify permitting temperatures in the United States “would result in an requirements for the oil and natural gas industry, are the increase of thousands to tens of thousands of premature Source Determination Rule and a final federal implemen- heat-related deaths per year by the end of the century.”78 tation plan for the Minor New Source Review Program in Sensitive populations, such as children, the elderly, Indian Country. In a separate action on the same day, EPA disadvantaged and socially isolated groups, and even requested public comment on an Information Collection people taking some prescription drugs, are particularly Request (ICR) that would require companies to provide vulnerable to extreme heat. the information that will be necessary for EPA to reduce

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 15 According to the report, climate change is also im- Endnotes pacting the seasonality and geographic range of vector- 1. Drinking Water Health Advisories for PFOA and PFOS, EPA’s borne diseases such as Lyme disease and West Nile virus, Ground Water and Drinking Water website, www.epa.gov/ which are carried and transmitted by insects such as ticks ground-water-and-drinking-water/drinking-water-health- advisories-pfoa-and-pfos. and mosquitoes. For example, between 2001 and 2014, the Northeastern United States experienced an increase 2. To learn more about the underlying studies for the health advisories, see EPA’s Health Effects Support Documents for PFOA in both the distribution and number of reported cases and PFOS at www.epa.gov/ground-water-and-drinking-water/ of Lyme disease.79 The report highlights many other im- supporting-documents-drinking-water-health-advisories-pfoa- pacts on human health including, among other things, and-pfos. the growth of harmful bacteria and algae due to warmer 3. This Week @ EPA, U.S. EPA email, July 11, 2016. For information water temperatures, mental health impacts due to in- on Mosquito Control Activities in Puerto Rico, see www.epa.gov/ creases in the number of extreme weather events, and mosquitocontrol/mosquito-control-activities-puerto-rico. increased risk of foodborne illnesses from pathogens like 4. Informe Semanal de Enfermedades Arbovirales (ArboV), Departamento de Salud de Puerto Rico, June 2016, at http:// salmonella and e coli. due to temperature and precipitation www.salud.gov.pr/Estadisticas-Registros-y-Publicaciones/ changes and flooding. This report builds on health-related Informes%20Arbovirales/Reporte%20ArboV%20semana%2023- information provided in the third National Climate As- 2016.pdf. sessment,80 issued in May 2014, and demonstrates a 5. EPA Extends Public Comment Period on Proposed Locations for growing understanding of how climate change is impact- Two Sewage Retention Tanks as Part of Gowanus Canal Cleanup, ing human health. The Report is available at: https:// April 26, 2016, www.epa.gov/newsreleases/epa-extends-public- comment-period-proposed-locations-two-sewage-retention-tanks- health2016.globalchange.gov/. part. EPA Proposes Climate-Friendly Alternatives to High 6. EPA Press Release, EPA Finalizes Agreement with New York City on Combined Sewer Overflow Tank Design and Location as Part Global-Warming-Potential Refrigerants of Gowanus Canal Cleanup, Location of Eight Million Gallon On March 29, 2016, EPA proposed changes to its list Sewage Tank Finalized, June 9, 2016, https://www.epa.gov/ of acceptable alternatives to ozone depleting substances newsreleases/epa-finalizes-agreement-new-york-city-combined- sewer-overflow-tank-design-and-location. pursuant to Section 612 of the Clean Air Act.81 These changes will result in decreased use of hydrofluorocar- 7. EPA Initiates Second Review of Hudson River PCB Cleanup, Public Encouraged to Participate, March 29, 2016, www.epa.gov/ bons (HFC), which are up to 10,000 times more potent newsreleases/epa-initiates-second-review-hudson-river-pcb- than carbon dioxide and are found in refrigeration and cleanup-public-encouraged-participate. 82 air condition equipment. The proposed rule is con- 8. EPA Proposes to Add Dutchess County Creek, N.Y. to the Federal sistent with the President’s Climate Action Plan, which Superfund List, Sediment Contaminated with Mercury, Polycyclic emphasizes the importance of reducing HFC emissions. Aromatic Hydrocarbons, April 6, 2016. The proposal advances EPA’s Significant New Alterna- 9. EPA Finalizes Passaic River Cleanup, One of the Largest tives Policy (SNAP) Program under Title VI of the Clean Superfund Projects in EPA History Will Protect People’s Health and the Environment, March 4, 2016, www.epa.gov/ Air Act by adding newer available climate-friendly alter- newsreleases/epa-finalizes-passaic-river-cleanup-one-largest- natives and determining as unacceptable some existing superfund-projects-epa-history-will. alternatives given their high global warming potential. 10. Gina McCarthy, TSCA Reform: A Bipartisan Milestone to Protect Our Health from Dangerous Chemicals, EPA Connect, June If finalized, the rule would avoid up to 11 million 22, 2016, available at https://blog.epa.gov/blog/2016/06/ metric tons of carbon dioxide equivalent emissions in tsca-reform-a-bipartisan-milestone-to-protect-our-health-from- 2030, which is equal to the energy-related emissions dangerous-chemicals/. from approximately one million homes per year.83 This 11. EPA Appoints Diverse Board of Experts to Help Develop National proposal and prior actions by EPA under SNAP have Electronic System to Track Hazardous Waste Shipments, March been instrumental in meeting the United States’ obliga- 17, 2016, www.epa.gov/newsreleases/epa-appoints-diverse- board-experts-help-develop-national-electronic-system-track. tions under the Montreal Protocol on Substances that 12. Press Release, “United States Settles with Trader Joe’s to Reduce Deplete the Ozone Layer while also reducing greenhouse Ozone-Depleting and Greenhouse Gas Emissions at Stores gas emissions. These actions are related to a broader Nationwide,” U.S. Department of Justice Office of Public Affairs, international effort towards a 2016 amendment to the June 21, 2016, available at https://www.justice.gov/opa/pr/ Montreal Protocol that would reduce the production united-states-settles-trader-joe-s-reduce-ozone-depleting-and- and consumption of HFCs and possibly avoid up to 0.5 greenhouse-gas-emissions-stores. degrees Celsius warming by 2100.84 In addition to the 13. Id. domestic rulemaking and international efforts on HFCs, 14. Id. EPA recently entered into a settlement with Trader Joe’s 15. Id. that will result in reductions of HFCs (see supra, “Consent 16. Id. Decree Lodged in Trader Joe’s Case”). More information 17. Id. about EPA’s SNAP Program and the proposal is available 18. Id. at: https://www.epa.gov/snap/snap-regulations. 19. Id.

16 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 20. “Reference News Release: Volkswagen to Spend Up to $14.7 50. While House E-Mail from President Obama, April 22, 2016, Billion to Settle Allegations of Cheating Emissions Tests and available at https://www.whitehouse.gov/blog/2016/04/22/ Deceiving Customers on 2.0 Liter Diesel Vehicles,” available at email-president-obama-our-responsibility-act. https://www.epa.gov/newsreleases/volkswagen-spend-147- 51. White House Fact Sheet, The United States and India—Moving billion-settle-allegations-cheating-emissions-tests-and-deceiving; Forward Together on Climate Change, Clean Energy, Energy “Volkswagen Clean Air Act Partial Settlement,” available at Security, and the Environment, June 7, 2016, available at https:// https://www.epa.gov/enforcement/volkswagen-clean-air-act- www.whitehouse.gov/the-press-office/2016/06/07/fact-sheet- partial-settlement. united-states-and-india-%E2%80%93-moving-forward-together- 21. “Reference News Release: Volkswagen to Spend Up to $14.7 climate. Billion to Settle Allegations of Cheating Emissions Tests and 52. White House Press Release, North American Climate, Clean Deceiving Customers on 2.0 Liter Diesel Vehicles.” Energy, and Environment Partnership Action Plan, June 29, 22. Id. 2016, available at https://www.whitehouse.gov/the-press- 23. Id. office/2016/06/29/north-american-climate-clean-energy-and- environment-partnership-action. See also White House Press 24. Id. Release, Leaders’ Statement on a North American Climate, Clean 25. Id. Energy, and Environment Partnership, June 29, 2016, available at https://www.whitehouse.gov/the-press-office/2016/06/29/ 26. Id. leaders-statement-north-american-climate-clean-energy-and- 27. Id. environment. 28. Id. 53. 81 FR 42940 (June 30, 2016). 29. Id. 54. 80 FR 64966 (Oct. 23, 2015). 30. Id. 55. EPA Press Release, EPA Proposes Additional Details on the Clean Energy Incentive Program: Voluntary program will benefit 31. Id. communities by providing incentives for renewable energy and 32. Id. energy efficiency, June 16, 2016, available at https://www.epa. 33. 81 Fed. Reg. 38645 (June 14, 2016); EPA Fact Sheet, “Proposed gov/newsreleases/epa-proposes-additional-details-clean-energy- Rule: Removal of Title V Emergency Affirmative Defense incentive-program. Provisions from State Operating Permit Programs and Federal 56. Id. Operating Permit Program,” available at https://www.epa.gov/ 57. Id. sites/production/files/2016-06/documents/fact_sheet_title_v_ emergency_affirmative_defense_proposal.pdf. 58. EPA Fact Sheet, Proposed Rule About Design Details of the Clean Energy Incentive Program under the Clean Power Plan, available 34. Id. at https://www.epa.gov/sites/production/files/2016-06/ 35. NRDC v. EPA, 749 F.3d 1055 (D .C. Cir. 2014). documents/fs-ceip-proposal-061616.pdf. 36. EPA Fact Sheet, “Proposed Rule: Removal of Title V Emergency 59. Chamber of Commerce, et al. v. EPA, et al., U.S. Supreme Court, Affirmative Defense Provisions from State Operating Permit Order in Pending Case (Feb. 9, 2016), available at http://www. Programs and Federal Operating Permit Program.” supremecourt.gov/orders/courtorders/020916zr3_hf5m.pdf. 37. Id. 60. EPA Press Release, EPA Proposes Additional Details on the 38. Id. Clean Energy Incentive Program: Voluntary program will benefit communities by providing incentives for renewable energy and 39. Id. energy efficiency, June 16, 2016, available at https://www.epa. 40. Id. gov/newsreleases/epa-proposes-additional-details-clean-energy- incentive-program. 41. 81 Fed. Reg. 24420 (April 25, 2016); EPA Fact Sheet, “Final Consideration of Cost in the Appropriate and Necessary 61. Id. Finding for the Mercury and Air Toxics Standards for Power 62. State of West Virginia, et al. v. EPA, Order (May 16, 2016), available Plants,” available at https://www.epa.gov/sites/production/ at, https://www.edf.org/sites/default/files/content/2016.05.16_ files/2016-05/documents/20160414_mats_ff_fr_fs.pdf. order_setting_en_banc_september_oral_argument.pdf. 42. Id. 63. http://blogs.edf.org/climate411/files/2016/01/STAY-DENIAL. 43. 81 Fed. Reg. 26697 (May 4, 2016); EPA Fact Sheet, “Final Rule: pdf. Determinations of Attainment by the Attainment Date, Extensions 64. Chamber of Commerce, et al. v. EPA, et al., U.S. Supreme Court, of the Attainment Date, and Reclassification of Several Areas Order in Pending Case (Feb. 9, 2016), available at http://www. for the 2008 Ozone National Ambient Air Quality Standards,” supremecourt.gov/orders/courtorders/020916zr3_hf5m.pdf. available at https://www.epa.gov/sites/production/ files/2016-04/documents/20160411factsheet.pdf. 65. EPA Press Release, EPA Releases First-Ever Standards to Cut Methane Emissions from the Oil and Gas Sector, May 12, 2016, 44. EPA Fact Sheet, “Final Rule: Determinations of Attainment by available at https://www.epa.gov/newsreleases/epa-releases- the Attainment Date, Extensions of the Attainment Date, and first-ever-standards-cut-methane-emissions-oil-and-gas-sector. Reclassification of Several Areas for the 2008 Ozone National Ambient Air Quality Standards.” 66. https://www.whitehouse.gov/sites/default/files/image/ president27sclimateactionplan.pdf. 45. Id. 67. https://www.whitehouse.gov/sites/default/files/strategy_to_ 46. Id. reduce_methane_emissions_2014-03-28_final.pdf. 47. Id. 68. EPA Press Release, EPA Releases First-Ever Standards to Cut 48. Id. Methane Emissions from the Oil and Gas Sector, May 12, 2016, available at https://www.epa.gov/newsreleases/epa-releases- 49. Id. first-ever-standards-cut-methane-emissions-oil-and-gas-sector.

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 17 69. https://www3.epa.gov/airquality/oilandgas/may2016/EPA- OilandGasActions-May2016.pdf. NEW YORK STATE 70. EPA Press Release, EPA Releases First-Ever Standards to Cut Methane Emissions from the Oil and Gas Sector, May 12, 2016, BAR ASSOCIATION available at https://www.epa.gov/newsreleases/epa-releases- first-ever-standards-cut-methane-emissions-oil-and-gas-sector. 71. Id. 72. Id. CONNECT 73. EPA Press Release, EPA Publishes 21st Annual U.S. Greenhouse Gas Inventory, April 15 , 2016, available at https://www.epa. WITH NYSBA gov/newsreleases/epa-publishes-21st-annual-us-greenhouse-gas- inventory. 74. Id. Visit us on the Web: 75. Id. 76. EPA Press Release, EPA Administrator Announces New Report www.nysba.org on Impacts of Climate Change on Public Health, April 4, 2016, available at https://www.epa.gov/newsreleases/epa- administrator-announces-new-report-impacts-climate-change- public-health. Follow us on Twitter: 77. U.S. Global Change Research Program, The Impacts of Climate Change on Human Health in the United States: A Scientific www.twitter.com/nysba Assessment, available at https://health2016.globalchange.gov/. 78. Id. 79. Id. Like us on Facebook: 80. http://nca2014.globalchange.gov/highlights/report-findings/ human-health. www.facebook.com/ 81. 42 U.S.C. §7671k. nysba 82. EPA Press Release, EPA Proposes Use of Climate-Friendly Alternatives to HFCs; Action supports Climate Action Plan by reducing greenhouse gas emissions, March 29, 2016, available at https://www.epa.gov/newsreleases/epa-proposes-use-climate- friendly-alternatives-hfcs-action-supports-climate-action-plan. Join the NYSBA 83. Id. LinkedIn group: 84. EPA Press Release, Statement from EPA Administrator Gina McCarthy on Decision Reached at the 27th Meeting of the www.nysba.org/LinkedIn Parties to the Montreal Protocol/Decision Puts World on Path to 2016 Amendment to Phase Down HFCs (Nov. 5, 2015), available at https://yosemite.epa.gov/opa/admpress.nsf/ bd4379a92ceceeac8525735900400c27/c489a7d31ef941ee85257ef500 49921d!OpenDocument&Highlight=2,dubai.

Marla E. Wieder is an Assistant Regional Counsel with the New York/Caribbean Superfund Program and is a part-time Regional Criminal Enforcement Counsel for the U.S. EPA Region 2; Joe Siegel is an Assistant Regional Counsel with the Air Branch and focuses on Alternative Dispute Resolution; Mary McHale is an As- sistant Regional Counsel with the Air Branch; and Chris Saporita, currently on hiatus, is an Assistant Regional Counsel with the Water and General Law Branch. Any opinions expressed herein are the authors’ own, and do not necessarily reflect the views of the U.S. Environmental Protection Agency. This article covers the period from ap- proximately March 1, 2016 through July 1, 2016, and does not include full coverage of water-related issues.

18 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 DEC Update By Randall C. Young

Pharmacies May Serve as Collectors of Unwanted Michael Murphy has joined DEC’s Office of General Medications Counsel in Albany where he will focus on issues related DEC’s proposed revisions to the state’s solid waste to environmental remediation. He graduated from Long management regulations would allow pharmacies Island University, Southampton Campus, in 1991 with to become collectors of unused, expired and a bachelor of science in marine biology. After college he unwanted medications under the Drug Enforcement worked as an environmental consultant for 15 years, Administration’s Controlled Substances Disposal Rule concentrating on site investigation and remediation. He without becoming permitted solid waste management received his law degree from Touro College, Jacob D. facilities. Until the regulations are finalized, DEC will use Fuchsberg Law Center, in 2006. From 2007 to 2016, he its enforcement discretion to allow pharmacies serving worked for law firms in Buffalo and Pittsburgh where as authorized collectors to set up collection receptacles he focused on site remediation and environmental without obtaining a Part 360 permit and to dispose of the compliance. pharmaceuticals collected at certain combustion facilities. Steven K. Allinger, Jr., has also joined DEC’s Office The enforcement discretion allows pharmacies to of General Counsel in Albany. He majored in history receive an approval from the DEA to become authorized and minored in environmental studies at Hamilton collectors. college, then attended Pace Law School where he served DEC and the DOH are both encouraging pharmacies as President of the Pace Environmental Law Society and to serve as collection points to ensure proper disposal graduated with an Environmental Law Certificate. While of drugs to help reduce the abuse of prescription at Pace he interned with Environmental Advocates of medications and keep them out of the state’s waters. In New York, the Environmental Protection Bureau of the the past, people were told to flush unwanted medications. New York Attorney General’s Office, and the Permanent That has changed because most drugs pass through Mission of Sri Lanka to the United Nations. After wastewater treatment plants and low levels of the graduation, he worked for two years as an Assistant chemicals from these medicines have been detected in the District Attorney at the Albany County District Attorney’s state’s water bodies. Office in the Financial Crimes Bureau. Personnel Changes Tiffany Chiu has joined DEC’s Office of General Counsel in DEC’s Region Two (New York City) where Basil Seggos was unanimously confirmed by the state she will focus on issues related to FOIL and also work on Senate as the fifteenth Commissioner of Environmental enforcement matters. Ms. Chiu graduated from Cornell Conservation. Commissioner Seggos graduated University in 2006 with a Bachelor of Arts in Biological from Pace Law School in 2001, where he received the Sciences and earned a Master of Public Health in environmental law award and alumni achievement Environmental Health Sciences from UCLA in 2011. She award. He served as a law clerk in the White House, was received her law degree from Cornell Law School in 2014 an associate at the Natural Resources Defense Council, with a concentration in Public Law. She has worked as a and Chief Investigator and Attorney at Riverkeeper. Prior legal fellow at NYSDEC Region Two for the last year. to his nomination as Commissioner, he served Governor Cuomo as Assistant Secretary for the Environment and Caryn Bower has joined the DEC’s Office of Deputy Secretary for the Environment. He also serves General Counsel in Albany where she will work in the as a Captain in the U.S. Army Reserve, Judge Advocate Remediation Bureau. Ms. Bower earned a Bachelor of General’s Corps. Science with highest honors in Environmental Policy and Analysis from the University of California, Davis, and a Thomas Berkman has been appointed Deputy J.D. from New York University Law School, where she Commissioner and General Counsel for DEC. Mr. was editor-in-chief of the Environmental Law Journal. Prior Berkman joined the DEC in 2011, and has worked on to joining the Office General Counsel as an attorney, Ms. issues related to nearly all of the programs implemented Bower worked at DEC as an Excelsior Fellow. by the Department. Prior to joining DEC, he spent three years as an Assistant Attorney General in the Criminal Division of the New York Attorney General’s Office Randall C. Young is Regional Attorney for Region and worked for national law firms in New York City Six of the New York State Department of Environmental and Washington, D.C. He also served as an Assistant Conservation. District Attorney in New York City, Queens County. He This column is the work of the author and is not prepared or is a graduate of Tufts University and Boston College Law endorsed by NYSDEC. School.

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 19 Environmental Protection Bureau Update By Andrew Gershon and Rebecca Fromer INTRODUCTION also agreed with DEC that Riverkeeper had failed to raise The New York State Attorney General’s Environmen- any issues warranting adjudication. tal Protection Bureau (EPB) represents the State of New Volkswagen Investigation York, the Department of Environmental Conservation In September 2015, news broke that Volkswagen (DEC), and other state agencies in civil environmental had built defeat devices into many of its diesel cars for litigation. The EPB enforces and defends administrative years. Subsequent investigation confirmed that the defeat orders and decisions, pursues cost recovery claims on devices operated by running those cars’ emissions systems behalf of the State, and undertakes its own investigations properly only during emissions testing, while substan- concerning potential environmental violations or dam- tially or completely disabling them in virtually all on-the- ages. The EPB also addresses other environment-related road conditions. The effect of these defeat devices was legal issues, such as adequacy of corporate disclosures that the vehicles at issue emit between five and thirty-five concerning environmental risk and liability. Over the last times the legal limits of toxic nitrogen oxide pollution year, the EPB’s diverse docket has resulted in a broad ar- when driven on the road. As part of this scheme, Volkswa- ray of decisions and settlements. gen installed substandard emissions systems that would AIR QUALITY otherwise have failed and broken down if subjected to the Riverkeeper, Inc. v. NYSDEC and Danskammer Energy, amount of daily use as represented by Volkswagen. Fed- LLC (Sup. Ct., Albany County, January 22, 2016) eral agencies and state attorneys general offices, including (“Danskammer”)—Challenge to DEC Air and Other the New York State Attorney General’s Office, immedi- Permits ately commenced investigations. In Danskammer, NYS Supreme Court, Albany County, On June 28, 2016, the New York State Attorney Gener- rejected a challenge by Riverkeeper to DEC’s issuance of al’s Office, other state attorneys general, and federal agen- Clean Air Act Title V and State Pollutant Discharge Elimi- cies including EPA and the Federal Trade Commission nation System (SPDES) permits to the Danskammer power announced a partial settlement with Volkswagen AG and plant near Newburgh, New York. During Superstorm its Audi and Porsche affiliates arising from Volkswagen’s Sandy, the power plant flooded, and subsequently ceased violations of emissions standards and state consumer pro- operating. Thereafter, its former owner filed a notice of tection laws through its fitment of defeat devices into over intent with the Public Service Commission to retire the half a million U.S.-market diesel-powered cars and SUVs. plant, while maintaining all DEC permits. That owner eventually sold the plant and transferred the permits As part of the settlements, some of which are still sub- to Danskammer Energy, LLC. In February 2015, having ject to court approval, Volkswagen will be required to offer considered the owner’s permit renewal applications, DEC to pay all owners of 2.0 liter, 4-cylinder engine VW and issued final Title V and SPDES permits (as well as Title IV Audi diesel cars in New York full, pre-scandal fair market Acid Rain and water withdrawal permits, neither of which value for their vehicle, in addition to a cash payment of at were challenged). Riverkeeper challenged the Title V per- least $5,100. Under the deal, car owners will have the op- mit on the grounds that: (1) the permit violated the Clean tion to choose to keep their vehicle and wait to see if VW Air Act due to a lack of certain pollution controls; and (2) and Audi develop acceptable emissions fixes. Car owners DEC should have subjected the permit application to the who exercise this option will also receive a cash payment more rigorous New Source Review and Prevention of Sig- of at least $5,100. nificant Deterioration programs under EPA’s “reactivation The settlements will direct to New York over $115 policy,” asserting that the plant’s shuttering effectively million for environmental projects to remediate New made it a new source. As to the SPDES permit, Riverkeep- York’s air quality, in mitigation of the damage caused by er argued that the permit violated several environmental the vehicles’ illegal pollution, as well as over $30 million laws by allegedly failing to protect Hudson River wildlife in additional monetary recoveries for the state’s general and water quality. Riverkeeper also argued that DEC had fund. That $30 million settles Volkswagen’s violations of failed to comply with SEQRA and had improperly failed New York’s consumer-protection laws. New York State to hold an adjudicatory hearing. did not release in this settlement its claims for environ- The court rejected Riverkeeper’s challenges, declining mental penalties arising from the company’s violation of to substitute its judgment for that of DEC. In particular, New York State environmental laws. the court deferred to DEC’s position that the shutdown On July 19, 2016, the New York State Attorney Gen- was not intended to be permanent. It also found that DEC eral’s Office brought suit against Volkswagen AG, and had taken the requisite “hard look” to fulfill its SEQRA its Audi, Porsche, and U.S. affiliates, in Albany County obligations, and that DEC’s actions were neither arbitrary Supreme Court for environmental penalties arising from and capricious, nor unsupported by evidence. The court the companies’ violation of New York air pollution laws,

20 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 specifically ECL Article 19 and regulations at 6 NYCRR tional Energy Agency (IEA) concerning future world coal Sections 200.9 and 218, through the use of defeat devices. demand. CLIMATE CHANGE In an “Assurance of Discontinuance” (AOD) with Clean Power Plan Litigation the AG’s Office, executed on November 8, 2015, Peabody agreed: (1) to file revised shareholder disclosures with the On August 3, 2015, EPA issued its Clean Power Plan SEC that accurately represent these financial risks to inves- rule (the “Rule”) pursuant to section 111(d) of the federal tors and the public; (2) to ensure that all future statements Clean Air Act. The Rule, published in the Federal Register to shareholders, the public, and the SEC comply with the on October 23, 2015, sets the first-ever nationwide emis- AOD; and (3) to be sure that it does not represent in any sion limits on carbon dioxide from existing fossil-fueled public communication that it cannot reasonably project or power plants, beginning in 2022, with full compliance to predict the range of impacts that any future laws, regula- be achieved by 2030. States are required to prepare plans tions, and policies relating to climate change or coal would that establish emission limits on individual plants that are have on Peabody’s markets, operations, financial condi- consistent with the Rule. tion or cash flow. Peabody must also correctly and in good faith describe IEA’s scenarios for global demand for coal The Rule, a cornerstone of the Obama Administra- in its public communications. Specifically, if Peabody cites tion’s efforts to lead the world in combating climate coal demand projections under the IEA’s Current Policy change, was met with a firestorm of litigation. Attorney Scenario, it must also cite the Agency’s two less favorable General Schneiderman, through the EPB, is leading a co- projections for coal demand. alition of 18 states, the District of Columbia, and six cities intervening on EPA’s side to defend the Rule against 42 CERCLA/HAZARDOUS MATERIALS consolidated petitions for review challenging it. State v. Next Millennium Realty, LLC, 06-CV-1133 After the D.C. Circuit denied motions to stay the Rule (E.D.N.Y.) (“Next Millennium”)—CERCLA in January 2016, in West Virginia v. EPA, No. 15-1363 (D.C. EPB obtained one of the relatively rare decisions on Cir. Jan. 21, 2016), the U.S. Supreme Court, by a 5-4 vote, natural resource damages under CERCLA (State v. Next granted a stay of the Rule in February 2016. On September Millennium Realty, LLC, 06-CV-1133 (E.D.N.Y. Feb. 9, 27, the full D.C. Circuit heard oral argument in the case 2016), and began a trial before settling with the remain- for seven hours. Sixteen different attorneys, including ing defendants. The case involved the State’s claim for Assistant Attorney General Michael Myers of the EPB (on response costs incurred by the DEC while responding to, behalf of state and municipal intervenor-respondents), investigating, and remediating the release of chlorinated presented arguments in five different segments, concern- solvents at, and emanating from, the New Cassel Indus- ing: (1) EPA’s statutory interpretation of the best system trial Area (NCIA) in Nassau County. The State settled of emission reduction for power plant carbon pollution; its claims with many of the responsible parties, before (2) whether EPA can regulate carbon dioxide from power moving for partial summary judgment against the remain- plants under section 111(d) of the Clean Air Act while it ing defendants as to liability under CERCLA, as well as is regulating hazardous air pollutants from those plants a declaratory judgment that they were liable for future under section 112; (3) whether the Clean Power Plan is response costs and natural resource damages (NRDs). The constitutional; (4) whether EPA gave adequate notice of remaining defendants cross-moved to dismiss the State’s the uniform rates for coal and gas plants in the final rule; claim for NRDs, arguing that CERCLA’s three-year statute and (5) whether the Rule is adequately supported by the of limitations applied because DEC had discovered the record. A decision is anticipated in the first quarter of 2017. injury 20 years ago. On reply, defendants abandoned that argument, and contended that the State’s NRD claim was Peabody Settlement Concerning Its Disclosure of not ripe because the amount of damages could not be as- Climate Change Risks sessed until the completion of the remedial action. An investigation by the Attorney General’s office The Court granted the State’s motion and rejected found that Peabody Energy Corporation (Peabody)—the defendants’ arguments. It first held that Section 113(g)(1) largest publicly traded coal company in the world—mis- of CERCLA “revived” the State’s claim for NRDs because led investors regarding financial risks to the company where—as in the instant case—“a facility [is] listed on the relating to climate change, in violation of New York’s National Priorities List,. . .an action for [natural resource] Martin Act and Executive Law prohibiting securities damages under this chapter must be commenced within fraud. The investigation found that Peabody: (1) repeat- 3 years after the completion of the remedial action. . .in edly denied in its filings with the SEC that it was unable to lieu of the” three-year from discovery limitation. The predict the impact to its business of potential regulation of Court also found that the State’s action for a declaratory climate change, even though Peabody and its consultants judgment on liability for NRDs was ripe because of the had actually made projections that such regulation would existence of an “identifiable injury, i.e., contaminants have severe impacts on the company; and (2) provided in groundwater at concentrations exceeding the State’s incomplete and one-sided discussions in its SEC filings drinking water standards.” and other communications of projections by the Interna-

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 21 Finally, the Court rejected defendants’ argument that evidence dating back to 1677, Supreme Court granted there was no injury to natural resources because there was the State of New York summary judgment holding that no identifiable “lost use.” Defendants relied on the Tenth the state owns title to the lands under Long Island Sound Circuit’s decision in New Mexico v. General Electric, one bounded by an imaginary line running east from Rocky of the few reported cases discussing NRDs, which is often Point in Oyster Bay to Whitewood Point on Lloyd’s Neck. used to substantiate NRD settlements. Although the Tenth Circuit had rejected the State of New Mexico’s loss use The case arose after plaintiff Murphy—who was li- theory, the Eastern District limited that holding to New censed by DEC to harvest shellfish in State-owned marine Mexico’s specific claim and theory in that particular case. waters—was cited by the Town of Oyster Bay for illegally The Next Millennium decision opens the door for different harvesting shellfish without a town permit. The plaintiff methods of assessing NRDs in the groundwater context, subsequently commenced this action for a declaratory setting excellent precedent in NRD jurisprudence. Sig- judgment that the water in which he was fishing, some- nificantly, it clarifies that the State does not have to wait where along the boundary between Oyster Bay and Long until the completion of a remedial action—which can take Island Sound, was in fact within the state-owned sound. years—before bringing an NRD claim. The state and the town both moved for summary judg- ment to determine ownership of the underwater lands at The case proceeded to trial on April 10, 2016, on the issue. remaining issue of whether the costs attributable to the remaining defendants were divisible, and defendants The town argued that it has title to the underwater therefore not subject to joint and several liability. After lands of Oyster Bay pursuant to the “Andros Patent,” approximately a day of trial the State reached a settlement issued to the town in 1677 by then Governor Andros on for response costs and natural resource damages with the behalf of the Duke of York. The town asserted that the remaining defendants. In total, the State received over $6 Andros Patent provided the town with a “sovereign million in response costs and NRDs from all of the NCIA interest” in the underwater lands of Oyster Bay because defendants. the town is older than New York State, and had cared for those underwater lands for over 300 years. The court PHMSA Oil Train Petition—Transport of Hazardous rejected this “prescriptive” argument because the town is Materials not a sovereign, and its authority over the disputed area is On December 1, 2015, the Attorney General filed a pe- thus irrelevant to the boundary determination. The court tition for rulemaking with the federal Pipeline and Hazard- acknowledged that, while the state’s constitution had ous Materials Safety Administration (PHMSA), pursuant confirmed all colonial patents, the patents must be strictly to the Administrative Procedure Act, 5 U.S.C. § 553(e), the construed in the sovereign’s favor pursuant to New York federal Hazardous Materials Transportation Act, 49 U.S.C. law. §§ 5101-5128, and 49 C.F.R. Part 106, Subpart B, seeking to Because New York State has a presumption of title to reduce the dangers of crude oil shipped by rail through the submerged lands, the town bore the burden of proof as U.S. The rulemaking would close an existing loophole un- to the boundary between Long Island Sound and Oyster der federal law that allows highly flammable crude oil to Bay, and thus the extent of the lands to which the town be shipped by rail through some of the most densely popu- has title under the Andros Patent. Additionally, because lated communities in New York and across the country. no party could offer proof via documents from the time Despite several recent derailments of trains carrying of the grant as to the extent of the underwater lands that crude oil that have resulted in extraordinary explosions Andros intended to convey, the burden ultimately rested and fires, there is no federal limit on the vapor pressure with the town as to the “nature and situation of the land of crude oil transported by rail, which is a key driver of and circumstances surrounding the Andros patent.” The the oil’s explosiveness and flammability. The rulemaking court held that the town had failed to offer any evidence would close this loophole by requiring that all crude oil to counter the state’s prima facie evidence that the bound- transported by rail in the U.S. achieve a vapor pressure of ary between Oyster Bay and Long Island Sound is the line less than 9.0 pounds per square inch (psi), a level that the connecting Rocky Point to Whitewood Point on Lloyd’s Attorney General argues is both practical and necessary Neck. The court directed judgment in the state’s favor, for minimizing the risks and severity of accidents involv- noting that the legislature is authorized to change the ing railroad tank cars. The petition is pending. court’s adjudicated boundary if it so chooses. PUBLIC LANDS AND WATERS Friends of Thayer Lake—Public Right to Navigation Murphy v. Oyster Bay—Underwater Lands Another case concerning the scope of the public’s right to navigate New York’s streams has paddled its way At issue in Murphy v. Town of Oyster Bay, Index No. to the New York Court of Appeals, which sent it back 00624/12 (Sup. Ct., Nassau County, Sept. 30, 2015), was downstream for further consideration. In Friends of Thayer where the underwater lands granted to the Town in a Lake LLC v. Brown, 2016 N.Y. Slip Op. 03647 (N.Y. 2016), colonial era patent end, and where the state’s underwater the Court of Appeals modified a prior order of the Appel- lands beneath Long Island Sound begin. After reviewing late Division, Third Department. The court remanded the

22 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 case for further fact-finding as to whether the “Mud Pond In affirming, the Appellate Division cited the high lev- Waterway,” a stream located on private land, is navigable- el of deference afforded state agencies and experts when in-fact and thus open to public use under longstanding interpreting their regulations. Here, the Department of common law. The Mud Pond Waterway is a two-mile- State is authorized by New York’s Executive Law to pro- long waterway within a larger network of lakes, ponds, mulgate regulations to further the goal of conserving and streams, and canoe carry trails in the Williams C. Whitney protecting fish and wildlife habitats that DEC has identi- Wilderness Area of Adirondack Park, called the Lila Tra- fied as critical to the maintenance or re-establishment of verse. In 2009, defendant Brown canoed into Mud Pond. fish or wildlife species. DOS accordingly promulgated two Thereafter, plaintiffs commenced this lawsuit against him regulations, which together authorize designation and for trespass. Attorney General Schneiderman joined the modification of significant coastal fish and wildlife habitat. lawsuit in February 2011, to defend the public’s right to The court concluded that the scientists’ affidavits estab- travel on navigable waters in the Adirondack Park. He lished that the agencies had a rational and scientific basis argued that plaintiffs’ efforts to prevent public recreational for their modification. It also agreed with the state that the travel along the waterway between Lilypad Pond and designations, including modification and consolidation of Shingle Shanty Brook were illegal and created a public existing habitat areas, did not constitute a formal rulemak- nuisance, and sought an injunction against the plaintiffs’ ing. Finally, it held that the supreme court’s denial of En- posting of trespass signs. tergy’s discovery request was not an abuse of discretion. In February 2013, Hamilton County Supreme Court FRACKING had ruled in the Attorney General’s favor on cross- Morabito v. Martens—Dismissing Challenge to Ban motions for summary judgment. The Third Department subsequently affirmed the ruling, but the Court of Appeals In Morabito v. DEC, Index No. 3265-15 (Sup. Ct., held that summary adjudication was inappropriate and Albany County, Feb. 10, 2016), the supreme court granted remanded the case to Supreme Court for a trial. DEC’s motion to dismiss an Article 78 petition challeng- ing a purported denial by DEC of a landowner’s request Entergy v. NYS Department of State—Coastal Zone to conduct high volume hydraulic fracturing (HVHF) on Management Act and Significant Habitats his property in Allegany County following DEC’s state- The New York Department of State administers the wide ban on HVHF. DEC responded to the landowner’s New York State Coastal Management Plan (CMP) pursu- inquiry regarding his ability to conduct HVHF by letter, ant to the federal Coastal Zone Management Act, 16 U.S.C. noting that the ban applied to all property-owners. The § 1451, et seq., in and on behalf of New York. In Entergy landowner then sued. In its motion, DEC argued that Nuclear Indian Point 2, LLC v. New York State Department petitioner lacked standing because he had failed to allege of State, 130 A.D.3d 1190 (3d Dep’t, 2015), the Appellate that he was directly and immediately affected by the state- Division affirmed Albany Supreme Court’s dismissal of a wide HVHF ban; that DEC’s denial of his request had not petition/complaint by Entergy, the owner and operator of caused any concrete injury-in-fact distinct from that of the the Indian Point nuclear power facility, which challenged general public; that any injury-in-fact would be economic the Department of State’s July 2012 revisions to designa- in nature and thus fall outside of SEQRA’s scope; that pe- tions of 40 Significant Coastal Fish and Wildlife Habitats titioner had failed to exhaust administrative remedies by (SCFWH) in areas of the Hudson River, which had not failing to actually apply for a permit; and that he had not been updated since 1987. One of them was designation of demonstrated an intent to actually begin HVHF. a stretch of the Hudson near Indian Point. The DOS desig- Petitioner argued that he is distinct from the general nations, a “routine program change” to New York’s CMP, public because 99% of people cannot conduct HVHF; that extended to include nearby River reaches and resulted a permit application would have been futile and thus he in a new habitat known as the “Hudson Highlands” that had not failed to exhaust his administrative remedies; and includes the Indian Point facility. The DOS designations that the HVHF ban constitutes a regulatory taking of the were later approved as part of the New York CMP by the sub-surface minerals on his property. The court rejected all National Oceanic and Atmospheric Administration. of these arguments and dismissed the case based on peti- Entergy’s 2012 petition/complaint sought, among tioner’s lack of standing, citing four independent bases: (1) other things, an annulment of the modification of habitat petitioner had failed to establish that he has any “concrete that created the Hudson Highlands SCFWH. As part of plans” to extract oil and gas from his properties using the state’s answer and return, it submitted scientists’ sup- HVHF and his “someday” plans were too speculative to porting affidavits pertaining to Hudson River biology and support standing; (2) petitioner admitted that he failed to regulatory history, noting that the Hudson Highlands is file a permit to apply for HVHF, a legally required step, home to two endangered species. Entergy moved for leave and also failed to establish a direct harm or injury from to take discovery. In May 2013, the supreme court denied DEC’s response because he could not establish that but for Entergy’s discovery request, and later that year dismissed the HVHF ban, his application would have been granted; the petition. Entergy appealed, arguing that the state had (3) petitioner failed to distinguish himself from the public failed to meet the procedural and substantive require- at large because he admitted that the HVHF ban affects ments for designation. all property owners in New York; and (4) petitioner failed

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 23 to allege how respondents’ determination would cause tinue to prevent them, from undertaking their required him environmental, as opposed to purely economic, harm. work. The court ordered the defendants to fully complete The court also held that petitioner had failed to exhaust the required work, including sampling and contractor pay- administrative remedies, so his action was premature. ments, within court-ordered deadlines, and to pay statu- tory fines for contempt. Defendant Marro was sentenced PROCEDURAL DECISIONS to thirty days in prison, which sentence was stayed condi- In FMC Corp. v. DEC, Index No. 5705-15 (Sup. Ct., tioned on full compliance with the court order’s terms. Albany County, Apr. 1, 2016), Supreme Court dismissed a third Article 78 proceeding brought by FMC Corporation Bennett—Court Quashes Subpoenas to Non-Party DEC (FMC), a major pesticide manufacturer, which challenged in Oil Spill Litigation a letter DEC sent to FMC seeking reimbursement of $2.79 Three related cases arose from a 2011 oil spill at the million in costs that DEC spent to remediate FMC’s con- Long Island home of the Bennetts, which occurred when a taminated pesticide chemical facility located in Middle- lawn care company severed the oil feeder line. Litigation port, Niagara County. over liability eventually ensued among multiple parties, In 1991, EPA and DEC entered into an administrative including the companies involved in causing the spill, con- order on consent with FMC, pursuant to which FMC was sultants involved with its cleanup, and insurance compa- required to investigate the nature and extent of contamina- nies for the various parties. Although not a party, DEC was tion, including numerous pesticides (such as DDT) and drawn into discovery because of its role in supervising heavy metals (such as arsenic) at the facility and in off-site the spill cleanup, and the legal impact of its regulatory de- residential areas. Upon completion of the investigative termination in December 2011 that the remediation of the work in certain operable unit areas, FMC refused to imple- property as of that date was sufficient to meet the agency’s ment the necessary remedial action DEC and EPA had cleanup standards. Based on that determination, the Ben- selected. DEC then proceeded with the cleanup itself. In its netts’ property insurer, State Farm, declined to pay for any petition, FMC challenged a DEC letter seeking reimburse- additional cleanup, because its obligation to provide cov- ment of those cleanup costs. FMC’s petition asserted that erage under the policy was triggered by the pendency of a DEC had failed in the letter to substantiate the expendi- claim seeking to impose liability, and DEC’s determination ture of $2.79 million on the remediation and to provide the removed any pending claim to impose liability. legal basis for using the Superfund to remediate the site. Upon a request by homeowners’ counsel, DEC in- The court dismissed FMC’s petition, finding that DEC’s ternally reconsidered its determination, but declined to letter to FMC seeking reimbursement was not a final agen- change it. Several years later, after litigation and discovery cy action because the state had not actually commenced an began, counsel for the Bennetts took non-party deposi- action to recover its costs. tions of the four DEC personnel who had worked on (or in one case, took a phone call concerning) the spill through State v. East Side—Contempt the day the agency determined that no further action was In State v. East Side, Index No. 13254 (Sup. Ct., Wash- necessary to meet DEC cleanup standards. After the Ben- ington County, Dec. 16, 2015), Supreme Court granted the netts subpoenaed DEC’s Regional Engineer (who had no state’s motion for an order holding East Side Metals and involvement with the spill until the agency’s after-the-fact Recycling Corp. (East Side) in civil and criminal contempt internal review), and also issued a subpoena demanding for violating a consent decree and judgment so ordered by access to the spill unit’s office space for the stated purpose the court in July 2011 (“Consent Order”). For many years, of assessing acoustic conditions there, DEC asked the East Side owned a scrap and automobile dismantling Attorney General’s Office to protect it from further non- and scrap metal operation in Kingsbury, New York. In its party discovery. motion, the state alleged that East Side had violated the Consent Order in multiple ways, including by failing to The Attorney General moved to quash, arguing that perform required remedial work on the site, and failing to the DEC determination, while certainly relevant and monitor and report groundwater monitoring and provide material, was not at issue. DEC was not a party, and no monthly status reports to DEC. pending claim or requested relief could cause the court to revise or affect the agency’s 2011 determination. DEC The court found that the defendants had violated the argued that the Bennetts had already taken ample testi- Consent Order by, among other things: (1) prematurely mony from all DEC witnesses who had seen or worked on ceasing remediation activities; (2) failing to pay contractors; the spill, and at this point plaintiffs’ additional demands (3) failing to propose and adhere to an implementation for discovery from DEC were an abuse of the discovery schedule; and (4) failing to submit monthly monitoring and process. The Court agreed, finding that DEC had met its groundwater reports. The court noted that defendants had burden of demonstrating that the material sought was not not shown themselves to have made any good faith efforts “material and necessary” to the prosecution or defense to complete their required work, nor had they discussed of an action, and that the disclosure sought could be ob- their purported lack of financial resources with DEC before tained from other sources. The court also quashed the ceasing remediation activities. They also did not establish subpoena to physically inspect the DEC offices, for the that their financial circumstances prevented them, or con- same reason. State Farm Fire and Casualty Company a/s/o

24 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 Richard Bennett and Mary Wendell Bennett v. Creative Land- acted outside of its authority. Rather, DEC had acted pur- scaping by Cow Bay, Inc., et al., Index No. 3851/14 (Sup. Ct., suant to its obligations to protect the Hudson River pursu- Nassau County, January 28, 2016). ant to federal and state law.

Protect the Adirondacks! v. DEC—Deliberative Process Village of Woodbury—Rational Review Privilege Supreme Court, Albany County, granted DEC’s In Protect the Adirondacks! Inc. v. DEC, Index No. motion to dismiss related hybrid actions by multiple 2137-13 (Sup. Ct., Albany County, Mar. 18, 2016), plain- petitioners-plaintiffs, including the villages of Woodbury tiff challenged the construction of community connector and Cornwall-on-Hudson and the Town of Cornwall, and snowmobile trails (which are one foot wider than typical several non-profit groups (collectively Petitioners), joined snowmobile trails, and wider on curves and bridges) cre- for determination on one record in the matters of Village ated to enable snowmobile travel between communities of Woodbury v. DEC, Index No. 5580-15 (Sup. Ct., Albany within the Adirondack Park. Plaintiff served a document County, May 19, 2016) and Black Rock Forest Consortium v. demand, and DEC produced certain documents and with- DEC, Index No. 5602-15 (Sup. Ct., Albany County, May 19, held a number of others on privilege grounds, identifying 2016). Petitioners challenged an October 2015 decision by them on a privilege log. Plaintiff moved to compel, and DEC granting a water withdrawal permit to respondent the supreme court denied most of the plaintiff’s motion Village of Kiryas Joel authorizing the Village of Kiryas for disclosure of approximately 150 documents on the Joel to withdraw up to 612,000 gallons of water per day state’s privilege log that were submitted for in camera from the Mountainville Well, which is located on property review. The state asserted various privileges, including owned by Kiryas Joel. The Village of Kiryas Joel is in the attorney work-product, trial preparation, and deliberative process of constructing a connection to the Catskill Aque- process. The court found for the state on all but nine docu- duct. Kiryas Joel, as lead agency, conducted a SEQRA re- ments. Although the CPLR does not have a deliberative view and, upon concluding that the well would not have process discovery privilege, the state successfully argued significant adverse impacts, issued a negative declaration that internal, non-final, deliberative documents—inter and that DEC reviewed before issuing the contested permit. intra agency—should be protected from disclosure, just Petitioners argued that DEC’s determination to grant the as they are pursuant to the Freedom of Information Law permit was arbitrary and capricious through its purported (FOIL). The court agreed. failure to: (1) adequately consider adverse environmental effects of the grant; and (2) hold an adjudicatory hearing. Town of Brunswick v. DEC—Capacity to Sue/Standing DEC put forward numerous arguments in opposition, in- cluding failure to state a claim and lack of standing. In Town of Brunswick v. DEC, Index No. 5667-14 (Sup. Ct., Albany County, Mar. 31, 2016), the Town of Brunswick In dismissing the petition, the court noted that the (Town) commenced an Article 78 proceeding/declara- standard of review of DEC’s action taken pursuant to a tory judgment action, seeking an order that, among other non-adjudicatory hearing is whether it has a rational basis, things, would prohibit DEC from requiring the City of and that evidence submitted by Kiryas Joel and DEC sub- Troy to comply with “best management practice no. 9,” a stantiated that DEC’s permit grant was reasonable. The federally mandated technological control that is a condi- Court held procedurally that a “mere demand for a judi- tion in the City of Troy’s State Pollutant Discharge Elimi- cial determination in a hybrid action that an agency action nation System (SPDES) permit. Best management practice is erroneous does not transform a claim under Article 78 no. 9 and New York State regulations require a SPDES into a separate and actionable claim for declaratory relief.” permittee like the City of Troy to ensure that any new The court also found that although some petitioners had separate sewers extended from older combined sewers changed, the issues comprising the heart of the matter, will not impair the permittee’s ability to comply with its to wit, Kiryas Joel’s SEQRA review, had already largely SPDES permit. The town alleged that DEC was interfering been determined against petitioners in Matter of Town of with its ability to control its own land use by approving Woodbury v. Village of Kiryas Joel, Index No, 2877-2013 (Sup. subdivisions, and that DEC’s SPDES program infringed on Ct., Orange County, Environmental Claims Part, April the town’s ability to approve sewer extensions and thus 7, 2014), and thus both res judicata and collateral estop- develop as it sees fit. pel barred re-litigation. Additionally, the organizational petitioners, including Storm King Art Center, had failed DEC moved to dismiss, alleging that the town lacked to demonstrate that they had standing. The court rejected capacity to sue and lacked standing; and that a writ of pro- petitioners’ claim that the village had deceived the public hibition does not lie against DEC. Supreme Court agreed. about its intent to complete its link to the aqueduct. It ad- The town lacked the capacity to sue DEC because it had ditionally determined that DEC had properly declined to neither an express statutory authorization to sue nor was a conduct an adjudicatory hearing. state statute impinging on its home rule powers. The town lacked standing because it could not identify a concrete injury including any imposition on its ability to approve a Andrew Gershon is the Environmental Protection sub-division within its boundaries, and any alleged inju- Bureau Affirmative Section Chief. Rebecca Fromer is ries were speculative. Finally, a writ of prohibition against a member of the Environmental Protection Bureau Af- DEC did not lie because there was no proof that DEC had firmative Section.

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 25 Section News Member Profiles Long-Time Member: Program. In addition, approvals for the construction of a Virginia C. Robbins gas pipeline and a new 345 kV electric transmission line For this issue we have were obtained from the PSC under Article VII of the Public focused our Long-Time Service Law. Permits were also obtained from the U. S. Member profile on Virginia Army Corps of Engineers, granting approval for project (“Ginny”) Robbins, who is a elements involving wetlands and the Hudson River. Member of Bond, Schoeneck Ginny served as lead project counsel for the Bond and King, PLLC in Syracuse. team representing the Town of Tyre in connection with the Ginny is a former Chair siting of del Lago, a $425 million resort and casino located of the Environmental Law on 84 acres adjacent to the New York State Thruway at Section and has stayed Exit 41. Project opponents brought four lawsuits against active in a number of bar the Town challenging various Town Board actions, activities. She is co-chair of including the environmental impact review under SEQRA the Section’s Global Climate and land use approvals. The litigation ended in June Change Committee and recently participated in the State 2016, and the del Lago project is under construction and Bar Association Leaders Climate Change Summit, the scheduled to open in February 2017. goal of which was to coordinate the efforts of state bar association leaders to address climate change at the state During Ginny’s term as Chair of the Section, vapor level. intrusion was just becoming an issue and the section took an active role in representing the membership by Ginny’s career began as a French teacher. She taught both commenting on draft policies and educating the French for a number of years after graduating college membership on this emerging topic. The brownfield and went to law school as a result of her union activities. program was also developing at the time and the Section’s After law school, she took a position at Bond, Schoeneck Executive Committee also prepared comments to help and King, where she found the environmental practice shape the program and educational programs to make interesting. She has a diverse environmental practice sure the membership understood the program. that has included assisting clients with compliance, remediation, project siting and expansions, SEQRA, Ginny has a variety of interests outside of permitting and defense of enforcement actions. She environmental law. She is a triathlete (and for those has also been a leader in continuing legal education, members who don’t know what that is, it is a competition presenting at many NYSBA programs. In 1996, she that involves swimming, cycling, and running). She enjoys and several local environmental engineers established music and dance and is a member of the board of Syracuse the Central New York Chapter of the Air and Waste Friends of Chamber Music and a board member and past Management Association; Ginny served as the Chapter’s president of the Syracuse City Ballet. Ginny provides pro founding Chair. At Bond in 2008, Ginny founded the bono services to the Syracuse community through the firm’s Women’s Initiative program to support the County Bar’s volunteer lawyers program. professional growth of its women attorneys. In June, Aaron Gershonowitz Ginny was a panel member and spoke on the topic of Best * * * Practices for Recruitment, Retention and Advancement of New Member: Frank Piccininni Women Attorneys, sponsored by NYSBA’s Committee on Women in the Law. In this issue we are pleased to highlight a Ginny has handled many significant environmental fantastic new member, matters. For example, she was a member of the Bond team Frank Piccininni. Many of representing Besicorp-Empire Development Company, you are familiar with Frank LLC (“Besicorp”) in connection with the development from his involvement as of a gas-fired power generating station and a recycled Co-Chair of the Section’s newsprint facility on contaminated property owned by Membership Committee. BASF Corporation in the City of Rensselaer. The work Others may recognize him for Besicorp was unusual in that it involved consolidated from his excellent articles impact review proceedings before two state agencies, the published in The New Department of Environmental Conservation (“DEC”) York Environmental Lawyer and the Public Service Commission (“PSC”). The land for the power facility was accepted into DEC’s Brownfield and other environmental

26 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 Section News journals. If you have not met Frank yet, you should. He With this training, SMPIL’s reach will extend to private is professional, passionate, and quite witty and likable. businesses and governmental agencies in need of mediation efforts for environmental solutions, improved Frank’s passion for environmental law comes from collaboration between identified groups, and increased the marriage of his graduate background in Biology efficacy of goal-driven programs. and his J.D. A native Long Islander, Frank has always been an astute student of nature and ecosystems. As With each new project, Frank is eager to find a a child, he explored the “sump” in Massapequa each synthesis between science and law for the betterment of day while trolling for frogs and turtles. As he grew the environment. Frank told me: older, a persistent question sparked his intellectual Science must be imbued into the curiosity—“Why did the green frogs leave?”—that drove law for true “environmental law” his quest for an intimate understanding of biological to be practiced. Laws that are not systems. In his field research at Marshall University, informed by hard science have a low Frank compared herpetological abundance measures probability of addressing the ecosystem with a multilayered vegetation survey and microhabitat holistically and, therefore, fall short. variables through multivariate and spatial analyses. (I One resounding local example of such a had to look this up, by the way.) He found that each shortcoming has been the maladaption layer of data exposed a critical contribution of each part of water management in the context of the ecosystem, while pointing to law as an untapped of Long Island land use practices. The source of solutions. lack of biological research regarding the Frank’s curiosity led him to leave his Ph.D studies impacts of development and altering of Interdisciplinary Ecology for law school. As the natural hydrology led to the decline Ginsberg Environmental Fellow and President of the of local frog populations and overall Environmental Law Society at Hofstra Law School, he ecosystem function. Fortunately, nature designed his studies and energy toward articulating a is resilient, and good science can inform better approach to policy, jurisprudence, and advocacy. effective land use and conservation policies. At present, Frank serves as an Account Executive and Senior Attorney at SterlingRisk, within the Frank intends to dedicate his career to achieving that Environmental Services Department, where he markets end. and negotiates coverage in environmental, professional, and general liability policies. He provides risk management solutions for a myriad of industries such Member News as manufacturers, real estate owners and managers, redevelopers, and equity firms. Frank’s approach to risk management has resulted in his formulation of a unique, multivariate spatial modeling technique designed Member Moves Practice to elucidate the source and spatial extent of soil and Eileen D. Millett has moved her practice. She groundwater contaminate plumes from commonly is a Partner in the real estate/environmental group available Phase II data. (And yes, competitors, he is in the New York City and Westfield, New Jersey seeking a patent for his technique….) offices of Lindabury, McCormick, Estabrook & Coo- per, P.C. She advises her clients on environmental Although Frank’s risk minimization approach is issues in litigation and administrative proceedings, laudable and progressive, his entrepreneurial drive in federal and state enforcement proceedings, and will define his career. With SMPIL Consulting, Ltd., his in land use matters, mergers and acquisitions, real own consulting firm, Frank has found a platform for estate transactions and financings, environmental maximizing advocacy and science-informed program compliance, Superfund and hazardous waste cases, development. SMPIL offers consultation and program sustainability and climate change issues, remedia- development, grant identification and securing, and tion matters, and brownfields. Eileen is a member court defensible data analytics for advocacy efforts to of the American College of Environmental Lawyers Long Island’s non-profits. SMPIL Consulting is currently (ACOEL). She is also a member of the board of The in a phase of expansion. Frank is currently pursuing Practical Real Estate Lawyer, one of two ALI-CLE training from a team of internationally recognized publications. Evolutionary Biologists and Contextual scientists to bring their PROSOCIAL project to SMPIL Consulting.

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 27 Member News Law School Salutes Professor Sandler as the ABA’s Jefferson B. Fordham Lifetime Achievement Award Recipient Long-time Section member, Ross Sandler, has been selected as this year’s American Bar Association’s recipient of the Jefferson B. Fordham Lifetime Achievement Award. He was recognized for his outstanding contributions in state and local government affairs over the course of his entire career. Below is New York Law School’s tribute to Ross, who has been a professor at NYLS since 1993. The Section congratulates Ross Sandler on his achievement. New York Law School (NYLS) professor Ross Sandler Sandler’s decades of experience as a participant and has been selected by the American Bar Association (ABA) observer of urban affairs have made him an influential figure Section of State and Local Government Law as this year’s in New York City government circles. From 1968 to 1972, Jefferson B. Fordham Lifetime Achievement honoree. This Sandler was an Assistant United States Attorney in Man- award is presented in recognition of outstanding contribu- hattan. He rose to Assistant Chief Appellate Attorney and tions to the practice of state and local government law by an Chief of the Environmental Enforcement Unit, successfully individual over an entire career, or for contributions over a prosecuting Hudson River polluters under federal laws that number of years of service. pre-dated the 1972 Clean Water Act. Later, in the mid-1970s, Sandler has spent over 45 years in various facets of as Senior Staff Attorney at the Natural Resources Defense public service. He joined NYLS in 1993 where he founded Council, he and his NYLS colleague Professor David Schoen- the Center for New York City Law with a plan to utilize brod headed the Urban Environmental Unit, winning pivotal New York City as the perfect backdrop for educating law Clean Air Act cases. students about state and municipal government and law. As In 1981, Mayor Edward I. Koch appointed Sandler as a head of the Center, Sandler created the publications CityLaw, Special Advisor on transportation. Sandler’s environmental CityLand, and CityRegs, which report on different aspects law experience helped revitalize the City’s mass transit sys- of New York City administrative decisions. The Center also tem. In 1986, Mayor Koch made Sandler the Commissioner of maintains CityAdmin, a free research web site which makes the Department of Transportation, where he led a reorganiza- available 125,000 New York City administrative decisions tion of the 8,000-person department and put in place a pro- from 28 New York City agencies. gram of bridge maintenance and repair still followed today. In 1994, Sandler created the Center’s acclaimed CityLaw As a professor of law, he specializes in state and local Breakfasts, widely known for featuring unfiltered discussions government law, torts, and professional responsibility. He with prominent leaders in policy and government in a public authored the book Democracy by Decree (Yale 2003) with forum. There have now been 134 CityLaw Breakfasts. Sandler Professor David Schoenbrod, which addressed the impact of currently hosts six to eight CityLaw Breakfasts each year with federal consent decrees on the efficiency and responsiveness NYLS Dean and President Anthony W. Crowell. of state and local government. He also authored a book for “Professor Sandler embodies the phrase civic -minded,” law students, Jumpstart Torts (Wolters Kluwer 2012). said Dean Crowell. “I have seen firsthand the incredible Honorees of the 19th Jefferson B. Fordham Awards will growth and success that he has achieved as the founder and be acknowledged at the ABA Annual Meeting in San Fran- guiding force of New York Law School’s Center for New cisco, California on Friday, August 5, 2016. York City Law. For the past two decades, his dedication has Elected in 1949, Fordham was the first State and Lo- inspired countless students to practice in the fields of local cal Government Law Section Chair. He was considered an government, public service, and land use. He has made the urban visionary. He pioneered the concepts of home rule and Center an invaluable resource for anyone interested in the the landmark decisions sustaining interdisciplinary studies ways of municipal government. And he has created a space under Bar sponsorship. He taught that the tough problems of that unites public sector lawyers as a community of critical local government did not lend themselves to simplistic solu- thinkers. New York Law School congratulates Ross on this tions. His 1949 case book on Local Government Law revolu- fitting and well-deserved lifetime achievement award and tionized teaching and addressed dynamic legal issues such thanks him for his many contributions to the School and to as planning and finance, housing and blight, transportation New York.” and congestion; in short, the entire range of urban problems “The Section of State and Local Government Law is whose solutions required a larger concept of community. proud and honored to present the Jefferson B. Fordham In 1998, the Section was inspired to establish the Jef- Lifetime Achievement Award to Professor Ross Sandler,” said ferson B. Fordham Awards to honor the accomplishments Donna Frazier, Chair of the ABA Section of State and Local of practitioners and institutions active in the varied areas of Government Law. “He is a pioneer in the legal profession and practice associated with state and local government law. in legal education, and we thank him for being a standard bearer in all aspects of state and local government law.” Reprinted with permission from New York Law School

28 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 Section News

Environmental Law Section Committee Report Committee Report on 2015 Legislative Forum Committee Name: Committee on Legislation provement of water quality, and maintenance of natural resources. Unfortunately, the Senate schedule did not al- Committee Co-chairs : John Parker and Jillian Kasow low participation in this year’s forum by the Chair of the Clean Water NY: What actions are needed Environmental Conservation Committee in the Senate or to ensure sustainable water resources in an appropriate representative. the 21st century? Following Mr. Liss’s presentation was the forum pan- The New York State Bar Association’s Environmental el, representing a cross-section of organizations engaged Law Section presented last year’s Legislative Forum on in the forefront of water infrastructure and management water infrastructure and management. The event oc- issues. The panel explored several questions surround- curred on May 6, 2015, and represented another success- ing the proposed statewide capital investment in water ful annual forum for the Section. infrastructure. The panel presented brief presentations and subsequently opened to a lively question-and-answer 1 Panel Member: Steven Liss period. Counsel to Assemblymember Steven Englebright, Chair, Environmental Conservation Committee, New Panel on Clean Water NY York State Assembly Panelist: Sandra L. Allen,3 Director of Policy and Steven Liss discussed several highlights of the 2014 Planning , Environmental Facilities Corporation legislative session from the perspective of the Assembly Sandra Allen is the Director of Policy and Planning Committee on Environmental Conservation, underscor- for the Environmental Facilities Corporation. The purpose ing several agenda achievements.2 The Assembly passed and mission of this public benefit corporation includes several measures addressing environmental concerns providing “low-cost capital and expert technical assistance for and expanding several existing protections, including environmental projects in New York State. Our purpose is to addition of film plastics within the retailer plastic bag help public and private entities comply with federal and state recycling law, which was signed into law; amendments environmental protection and quality requirements.”4 to the State Environmental Quality Review Act directing the Department of Environmental Conservation to con- Ms. Allen opined on the impact of public behavior sider emerging science in determining the significance of on water policy, noting that opposition to water rate in- a project or action; consideration of the impacts of climate creases is often unwarranted, and stagnant rates are prob- change in certain applications and funding decisions, lematic and do not support long-term asset management which was signed into law; establishment of limitations goals. She advocated for charging fees for impervious on mercury content in lightbulbs; a definitive three-year surfaces to discourage their use, and saw investment in ban on hydrofracking; establishment of procedures by infrastructure as a critical component in avoiding future agencies to conduct environmental justice reviews; ban losses in water quality and quantity. Finally, Ms. Allen on microbeads; ban on sale of elephant ivory, which was emphasized that infrastructure development needs to signed into law; and prohibitions of several chemicals include regionalization, seeing opportunity in the sharing found in everyday products, such as furniture and chil- of resources and collaboration on extending the efficacy dren’s products, including the flame retardant known as of existing resources to more users. TRIS. Panelist: Joseph Coffey, Jr., P.E., Commissioner of Mr. Liss concluded with an outlook for the 2015 leg- Water and Water Supply, City of Albany islative session, anticipating that the Assembly will focus Joseph Coffey brought his private sector experience on environmental advocacy, protection of wetlands, im- to the role of the Commissioner of the City of Albany

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 29 Section News

Department of Water & Water Supply.5 Mr. Coffey has Instead, Mr. Coffey explained that higher risks lie in guided the Department towards a business model incor- the aged infrastructure used to move the water through- porating core values, visioning, new technologies, and out the City, some waterways having been built more practices, as part of an initiative to streamline the Depart- than one hundred years ago. In addition, the City still ment’s delivery of services, implement an asset manage- utilizes a rare combined sewer system, compounding the ment program, upgrade its systems, and focus more at- dangers associated with flooding and presenting a need tention on preventive maintenance and flood mitigation. for significant future capital investment. Mr. Coffey also shed light on an ongoing green infrastructure project to Under his supervision, Mr. Coffey has already led the improve management of the combined sewer system Department in citywide planning of upgrades to its cen- enabled by funding from the Environmental Facilities tury-old infrastructure to prevent large storm events from Corporation. continuing to overwhelm the system. The department has also begun laying the foundation for the wider use of Mr. Coffey discussed an anomaly where several utili- green infrastructure, with continued dedication to revital- ties run parallel under the streets of Albany, seemingly izing the city’s water and sewer services and infrastruc- without any collaboration among the entities responsible ture, while promoting stewardship and sustainability. for maintaining services. He recommended that better collaboration among the utilities could be achieved, and Mr. Coffey presented a risk management approach suggested that the Public Service Commission could to the City’s water assets. He spoke at length on the high enable this model. In addition, Mr. Coffey stressed the quality surface waters that form the Alcove Reservoir, need for greater emphasis on asset management systems, which is the primary source of drinking water for City of which can decrease the probability of failure. He recom- Albany residents and requires little treatment, less so than mended that grant funding be made available to munici- reservoirs serving New York City. Given the quality of the palities to encourage prudent spending on infrastructure, water, coupled with stringent water and land use restric- and to avoid large, unplanned capital costs associated tions in the area surrounding the reservoir, Mr. Coffey with system failures. opined that no changes or further protections are current- ly needed to ensure the City’s ongoing access to water.

Get Credit for Your Articles—NY CLE for Legal Publishing An underutilized opportunity • newly admitted attorneys are • applicants not listed as for New York continuing legal not eligible for publication authors must submit a letter education credits is the MCLE that credits; from a listed author attesting the Office of Court Administration to his/her contribution and offers for published legal articles. • credit may be awarded for describing its nature; In general: speaking at a CLE activity • both the application and its OR for preparation of written • one (1) CLE credit may be attachments must be sent by awarded for each 50 minutes materials for that activity, but regular mail as email submis- of research and writing; NOT for BOTH; sions will not be accepted. • more than 12 CLE publication • joint authors seeking credit For additional information and credits cannot be earned dur- must each file a separate ap- the MCLE credit application form, ing a CLE reporting cycle; plication; consult the online sources below:

NYSBA MCLE Publication Credit Information: https://www.nysba.org/uploadedFiles/NYSBA/Publications/Section_Publications(1)/clecredit.pdf NYS CLE Board Publication Credit Application: https://www.nycourts.gov/attorneys/cle/apppubcredit.pdf General NY Court MCLE Requirements: https://www.nycourts.gov/attorneys/cle/attorney_faqs.shtml .

30 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 Section News

Finally, Mr. Coffey shed light on existing purchase proposing an allotment from the recent $5 billion in settle- water agreements between the City of Albany and sur- ment funds, which were obtained by the Attorney Gener- rounding municipalities, designed to create operational al in settlements with several banks alleged to be engaged efficiencies, resulting in combined use of capital tools. Mr. in deceptive lending practices. He explained that the state Coffey described these regionalization strategies as “sim- budget process and its impact on infrastructure planning ple and elegant” solutions that are critical to maintaining has the effect of law, and advocated for immediate and reliable water service for the City. drastic increase in funding for infrastructure grants. When asked to provide insight into the current state Mr. Janeway also expressed insight into the tremen- of California water policy in comparison to that of New dous burden faced by municipalities not only in manag- York policy, Mr. Coffey discussed the rate-structure in- ing water infrastructure systems, but also in navigating centive typically seen throughout New York State that availability of funding and resources, requiring extensive charges larger users higher rates, as a critical conservation mental capital that many municipalities in rural areas of component that the State of California lacked. He antici- the State, such as the North Country, simply do not have. pates additional changes to current city rates congruent to He suggested that this problem be addressed to ensure new sewer work that is being performed. He also stated that all municipalities have full advantage in navigating that New York is in the unique position of having identi- and applying for several programs available to them. fied the high probability of extreme weather events in the 8 future and has an opportunity to plan against these occur- Panelist: David Kay, Senior Extension Associate with rences; in comparison, the State of California, he opined, the Community & Regional Development Institute simply waited too long to obtain necessary forecasting to (CaRDI), Department of Development Sociology, implement effective solutions. Cornell University Mr. Kay provides leadership for CaRDI programming 6 Panelist: Harriet D. Cornell, Chair of the Rockland in the areas of energy, land use, and community develop- County Task Force on Water Resources Management; ment where he also serves as a collaborator with the New Legislator, Rockland County Legislature York State Water Resources Institute. Harriet Cornell, a Rockland County Legislator, was instrumental in organizing a task force to investigate the Mr. Kay offered a slideshow presentation, framing proposed installation of a desalination plant drawing several issues of water quality and management through from the Hudson River, which was conceived by private the lens of the New York State Public Infrastructure Policy water provider United Water to address a shortage of Act of 2010. The goal of the Act, Mr. Kay explained, is to drinkable water in Rockland County, in the Hudson Val- maximize public benefit from infrastructure by minimiz- ley. She explained that the Public Service Commission ing unnecessary costs of sprawl development. He also ex- played a critical role in partnering with the task force to plained that life cycle analysis of different systems—such investigate the need for the desalination plant. Cornell as energy or food—is necessary for a full understanding is often hallmarked for her leadership role in this effort of the impact of water usage on energy conservation. Wa- and also for the public involvement that she was able to ter demand for energy systems, as another example, can garner from citizens residing in Rockland County. After have a direct impact on quantity and quality. close investigation of the proposal, it was determined that Drawing on much of his research work, Mr. Kay un- water losses through water delivery infrastructure were derscored that water management and policy are largely contributing to the perceived shortage of drinkable water, guided by public perception, and that changing this be- also leading to the realization that upgrades to the infra- havior is very difficult. He suggested that price signals, structure would be a viable solution while costing but a such as those utilized in energy usage, may be the most fraction of the company’s proposal. promising method in effecting changes in behavior, in ad- Finally, Ms. Cornell envisioned a water revolution in dition to education and outreach. He also called upon a conservation and management led by the next genera- stronger state presence in water management to solve on- tions, which provided a bold forecast, given her role in going interjurisdictional issues and to address the short- capturing public involvement while opining how difficult age of long-term capital plans across most municipalities it is to capture public imagination. in the State. Finally, Mr. Kay agreed with Mr. Coffey when asked his opinion on municipal privatization of water Panelist: William C. Janeway,7 Executive Director, resources. They both stated that these transitions should Adirondack Council be evaluated on a case-by-case basis, and that the model Mr. Janeway framed the current state of water infra- is not appropriate nor would it be successful for every structure as a crisis and emphasized the need for capital municipality, and can have a negative impact on the rate- funding to invest in infrastructure upgrades, specifically payer, for example.

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 31 Section News

LUNCHEON KEYNOTE SPEAKER Executive Director at University Heights Association in Albany, and as Director/Section Manager at Earth Tech’s Latham, NY Alexander “Pete” Grannis, First Deputy Comptroller, office. He also spent many years at C.T. Male Associates. Mr. State of New York Coffey earned a Bachelors Degree in Engineering from Boston University and a Master’s Degree in Environmental Engineering Pete Grannis, having formerly served as Commis- from Rensselaer Polytechnic Institute. He is a licensed sioner of the New York State Department of Environ- Professional Engineer in New York State. mental Conservation, emphasized sustainability in the 6. Harriet Cornell has been a Legislator since 1984 and is the first discussion on statewide water policy. During his speech, woman to chair the Rockland County Legislature, a position she he elaborated that New York State currently has no water held from January 2005 to December 2013, the longest consecutive term to date. Her long record of accomplishments led to The plan, which should be as important as the establishment Journal News naming her as one of 25 people who made the of a statewide energy plan. He argued that the deteriora- greatest impact on Rockland County during the 20th Century— tion of infrastructure throughout the state is a critical is- and her continued portfolio of priorities include protection of the sue affecting more than just immediate water supply. The environment, transportation infrastructure, enhanced educational management of these resources is critical to economic resources with a focus on the optimal development of children, and smart land use planning. She initiated and spearheaded development throughout the state because several indus- the development of Rockland County’s Comprehensive Plan, tries rely on high-quality, continuously supplied water, Rockland Tomorrow, which was adopted in 2011 and received as do New York citizens for their quality of life and over- the Comprehensive Plan Award the following year from the New all health. Mr. Grannis suggested that updated reports York State Planning Federation. Ms. Cornell is a graduate of Swarthmore College and received her M.P.A. degree from N.Y.U. on current states of systems, adoption of best practices, Wagner Graduate School of Public Policy. assistance to small communities without the resources 7. William C. (Willie) Janeway returned to the Adirondacks to to properly navigate state resources for infrastructure, become the Executive Director and leader of the Adirondack and improved cooperation and coordination of resources Council in May 2013, after nearly six years as the Regional across municipalities are key components to bringing Director for the State Department of Environmental Conservation Hudson Valley Catskill Region. He brings to the Adirondack successful water infrastructure management into the 21st Council close to thirty years of experience as a professional century for New York State. conservationist, fundraiser, administrator, coalition builder, and advocate for the environment. After graduating from St. Lawrence Endnotes University, where he majored in economics and environmental 1. Steven Liss has over thirty years of experience in legislation and studies, Mr. Janeway lived in the Adirondacks for nine years served as counsel to the previous two Chairs to the Assembly while working for the Adirondack Mountain Club as the first Committee on Environmental Conservation, Assemblymembers Trails Coordinator, and as North County Director. Willie also Robert K. Sweeney and Paul E. Harenberg. Mr. Liss also served as the first Executive Director of the Albany Pine Bush previously served as Trustee at the Long Island Power Authority, Preserve Commission, Executive Director of the Hudson Valley where he participated in the decommissioning of the Shoreham Greenway, and State Director of Government Relations for The nuclear power plant. He is a graduate of Antioch School of Law in Nature Conservancy. Washington, D.C., as well as the State University of New York at 8. David Kay’s work on land use involves research, outreach, and Stony Brook. training efforts that attempt to build community-based decision 2. See Robert K. Sweeney, 2014 Annual Report: Committee on making capacity and to help weave local policy into a regionally Environmental Conservation, available at http://assembly.state. coherent fabric. He has increasingly focused on the community ny.us/comm/EnCon/2014Annual/index.pdf. and economic development implications of energy transitions. His research and outreach work is especially concerned with 3. Sandra Allen was appointed to Director of Policy and Planning building informed decision-making capacity in the context of in November 2009. Prior to joining the Corporation, Ms. Allen community controversy. He has also studied the implementation directed the Clean and Safe Water Infrastructure Funding of the Smart Growth Public Infrastructure Act and co-authored Initiative at the New York State Department of Environmental a publication exploring public opinion on issues related to water Conservation. Ms. Allen commenced working with the and wastewater infrastructure. Mr. Kay serves on the boards of Department in 1993, where she also served as the Director of the several city, town, county, and New York State not-for-profit or Division of Water, the New York City Watershed Coordinator, and government organizations concerned with sustainability and as Water Program Counsel. She holds a Juris Doctor Degree and municipal land use planning. a Master of Studies in Environmental Law from Vermont Law School. 4. See Environmental Facilities Corporation: About us, available at A special thanks is in order to participants and http://www.efc.ny.gov/. guests and to the New York State Bar Association for 5. Joseph Coffey’s background is deeply rooted in the engineering hosting the event at its One Elk Street headquarters, and and environmental consulting industry, where he developed to the New York State Bar Association team that made expertise in water and wastewater treatment, limnology, and the event possible. water resources management. Mr. Coffey previously served as Director at GEL Engineering in Charleston, South Carolina,

32 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 Section News Drinking Water—The Dialogue Continues . . . By Marla E. Wieder

In May 2016, the Environmental Law Section (ELS) held two very informative dialogues on drinking water issues with special emphasis on perflourinated chemicals (PFCs) and lead. The May 18th Legislative Forum in Albany included a panel entitled, To Drink or Not to Drink: Clean Water Litigation Trends in NY, which focused predominantly on the Hoosick Falls perfluorooctanoic acid (PFOA) contami- nation issue.1 On May 23, ELS, in conjunction with the Elisabeth Haub School of Law at Pace University (f/k/a Pace Law School), and the ABA’s Section of Environment, Energy, and Resources held the Troubled Waters drinking water conference in New York City, focusing on both PFCs and lead in our drinking water. Given the overwhelming posi- tive response to our conferences, ELS will endeavor to ad- vance this discourse with an annual water conference. De- pending on the political climate and status of the various PFOA of 100 ppt for drinking water in the Town of Hoo- lawsuits and hearings, we may be able to secure greater sick and the Village of Hoosick Falls. state and federal participation at upcoming conferences. Mr. Bilott’s discussion of the DuPont/C8 litigation A few days before the Troubled Waters conference in and his efforts to publicize the dangers of the PFCs was New York City, as discussed in the EPA Update article, on inspirational. For those of you who have not read The May 19th, EPA announced a lifetime drinking water health New York Times articles regarding his nearly 20-year battle advisory of 70 parts per trillion (ppt) for human exposure against DuPont for its illegal disposal of PFOA, I urge you 4 to PFOA and PFOS.2 Our key note speaker, Robert Bilott to do so. This is the type of story that should make you of the DuPont/C8 litigation, was most generous in char- proud to be an environmental attorney and reaffirm the acterizing the new health advisory level as a “step in the importance of the work we do (and can do) in the envi- right direction,” considering that he has been urging EPA ronmental arena. We were thrilled he took the time out of to take action on PFCs since 2001. In 2009, EPA’s Office of his schedule to join the dialogue, especially considering Water established a provisional health advisory of 400 ppt the second DuPont/C8 bellweather case was starting later for PFOA.3 Later in early 2016, EPA set an action level for in the month. As a side note, in early July the jury in that matter found that DuPont acted with malice and awarded the Plaintiff, David Freeman, a cancer victim, $5.1 million in compensatory damages and $500,000 in punitive dam- ages.5 Two cases down (although the victories are being appealed) and about 3,500 to go. On the PFC panel, Robin Greenwald, head of the En- vironmental Toxic Torts and Consumer Protection Litiga- tion Section at Weitz & Luxenberg, offered the plaintiffs’ perspective on the Hoosick Falls PFOA contamination matter and urged EPA to be more visible and available to the community. She stressed that the community does not understand many of the issues that affect their health and that the agencies need to be more available to the public. Scott Fein, partner at Whiteman, Osterman & Hanna, struck a more conciliatory cord focusing on the need for all stakeholders to work together to resolve the PFOA is- sue. He suggested that we need not vilify any corporations but instead focus on how to remedy the groundwater

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 33 Section News contamination issues in upstate New York. Philip E. Goo- coordination efforts with other agencies, community blood drum, Ph.D., DABT, Senior Managing Scientist for Integral testing events, lessons learned in Flint and how HUD will Consulting Inc., rounded out the PFC panel with an en- be supporting the long term recovery efforts in Flint. lightening overview of PFCs from a technical perspective, highlighting risk issues, recommended exposure levels Professors David Cassuto and Karl Coplan of the across the U.S. and internationally, and some of the chal- Elisabeth Haub School of Law expertly served as modera- lenges we face in regulating PFCs. tors for the panels. Representatives from the New York State Department of Environmental Conservation, New For the lead portion of the conference, Larry Schnapf, York State Department of Health, the USEPA, and the ELS Chair, tackled some of the current gaps in dealing New Jersey Department of Environmental Protection were with lead in drinking water, including issues regarding invited to participate. private landlords’ responsibilities (and lack thereof), as well as how private lending institutions view the prob- As several of our panelists had active litigation on the lem. Prof. Margot Pollans of the Elisabeth Haub School topics at issue, we did not record the proceedings; how- of Law focused on the Flint, Michigan situation, offering ever, the conference materials are available on the NYSBA a fabulous overview of the current litigation, the various Environmental Law Section’s website at www.nysba.org/ causes of action, the criminal prosecution angle and sug- Sections/Environmental/Program_Materials/Environ- gested some possible legislative fixes for the lead problem. mental_Law_Section_Program_Materials.html. Informa- Tom Neltner, Chemical Policy Director, Environmental tion on the conference itself and speaker biographies are Defense Fund, gave an energetic presentation on “Re- posted at http://law.pace.edu/Troubled-Waters. thinking Lead in Drinking Water.” His discussion focused In the wake of the Conference… on strategies to reduce exposure to lead, potential policy interventions, a discussion on similarities/differences in Following the conference there have been a number how lead in paint and pipes are handled, offered recom- of significant developments regarding the PFOA issue. mendations to EPA, and outlined EDF’s approach to ac- Numerous public meetings and hearings have been held celerate lead service-line replacement. Last but not least, in recent months in order to further discussion and public Lindsey S. Reames of the Office of Public Housing, U.S. understanding of the PFOA risk issues. Also, as discussed Department of Housing and Urban Development (HUD) in the current EPA Update column appearing in this issue TNYEL discussed her work in Flint, Michigan and HUD initiatives of , on June 22, 2016, President Obama signed into to address the drinking water problems in public hous- law the Frank R. Lautenberg Chemical Safety for the 21st Century Act which amends the Toxic Substance Control ing. She offered a thorough overview of HUD’s support 6 and coordination efforts in Flint, the proposed Lead-Based Act (TSCA). U.S. Senator Kirsten Gillibrand (D-New Paint Poisoning Prevention Standards, the Fair Housing York) and others have urged EPA to prioritize the regula- Act guidance for lenders in Flint, lead (pipes and paint) tory assessment of PFOA under the newly revamped stat- ute.7 In early July, the House Oversight and Government Reform Committee began taking a closer look at state and federal response to the Hoosick Falls matter. Committee Chairman Jason Chaffetz (R-Utah) and Interior Subcom- mittee Chairwoman Cynthia Lummis (R-Wyo.) requested internal communications regarding the handling of the matter from the Cuomo Administration and EPA Adminis- trator Gina McCarthy.8 Additionally, in mid-July in response to calls to extend the statute of limitations for the filing of personal injury claims in the wake of the water contamination crisis, Gov- ernor Andrew Cuomo signed an amendment to section 214 of the New York State Civil Practice Law and Rules (CPLR). The amendment adds a new 214-f, which allows the filing of an action for “personal injury caused by con- tact with or exposure to any substance or combination of substances found within an area designated as a super- fund site” within three years after the area’s designation as a state or federal Superfund site.9 The legislation passed

34 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 Section News the Assembly on May 24, 2016, by a vote of 132-7 and unanimously passed the Senate on June 16, 2016.10 Endnotes Useful Websites 1. More on the May 18th Legislative Session to follow in the next edition of The New York Environmental Lawyer. For the basics on the on PFCs & Lead in program, see https://www.nysba.org/Sections/Environmental/ Events/2016/2016_Legislative_Forum_Flyer.html. Drinking Water 2. Drinking Water Health Advisories for PFOA and PFOS, www. epa.gov/ground-water-and-drinking-water/drinking-water- THE C8 SCIENCE PANEL & MEDICAL health-advisories-pfoa-and-pfos. In 2009, EPA’s Office of MONITORING INFORMATION: Water established a provisional health advisory of 400 ppt WWW.C8SCIENCEPANEL.ORG for PFOA, https://www.epa.gov/dwstandardsregulations/ provisional-health-advisories-perfluorooctanoic-acid-pfoa-and- WWW.C-8MEDICALMONITORINGPROGRAM.COM perfluorooctane. Later in early 2016, EPA set an action level for PFOA of 100 ppt for drinking water in the Town of Hoosick and NYSDOH LINKS: the Village of Hoosick Falls. HOOSICK FALLS: WWW.HEALTH.NY.GOV/HOOSICK 3. U.S. EPA website, Provisional Health Advisories for WWW.VILLAGEOFHOOSICKFALLS.COM/MEDIA/PDF/NYS- Perfluorooctanoic Acid (PFOA) and Perfluorooctane Sulfonate DOH-PFOA%20FACT%20SHEET-1215.PDF (PFOS), https://www.epa.gov/dwstandardsregulations/ WWW.HEALTH.NY.GOV/ENVIRONMENTAL/WATER/ provisional-health-advisories-perfluorooctanoic-acid-pfoa- DRINKING/ and-perfluorooctane. See also, EPA Likely to Issue Soon PFOA Drinking Water Health Advisory, May 3, 2016, Bergeson & WWW.HEALTH.NY.GOV/ENVIRONMENTAL/ Campbell, P.C. at http://www.jdsupra.com/legalnews/epa-likely- INVESTIGATIONS/HOOSICK/ to-issue-soon-pfoa-drinking-92791/. 4. The Lawyer Who Became DuPont’s Worst Nightmare, NY EPA LINKS: Times Magazine, Jan. 6, 2016, available at www.nytimes. 2016 DRINKING WATER HEALTH ADVISORIES FOR PFOA & com/2016/01/10/magazine/the-lawyer-who-became-duponts- PFOS: worst-nightmare.html?_r=0 and The Story Behind the E.P.A’s WWW.EPA.GOV/GROUND-WATER-AND-DRINKING-WATER/ Contaminated Water Revelation, NY Times, May 27, 2016, available DRINKING-WATER-HEALTH-ADVISORIES-PFOA-AND-PFOS at http://www.nytimes.com/2016/05/27/magazine/the-story- EPA REGION 2—HOOSICK FALLS WATER behind-the-epas-contaminated-water-revelation.html?_r=0. CONTAMINATION: 5. Jury orders DuPont to pay $500K in punitive damages, WWW.EPA.GOV/NY/HOOSICK-FALLS-WATER- Delaware online, The News Journal, July 8, 2016, http://www. CONTAMINATION delawareonline.com/story/news/2016/07/08/jury-orders- dupont-pay-500k-punitive-damages/86862354/. BASIC INFORMATION ABOUT LEAD IN DRINKING WATER WWW.EPA.GOV/YOUR-DRINKING-WATER/BASIC- 6. U.S. EPA website, Assessing and Managing Chemicals under INFORMATION-ABOUT-LEAD-DRINKING-WATER TSCA, The Frank R. Lautenberg Chemical Safety for the 21st Century Act, https://www.epa.gov/assessing-and-managing- EPA—SAFE DRINKING WATER ACT: CONSUMER chemicals-under-tsca/frank-r-lautenberg-chemical-safety-21st- CONFIDENCE REPORTS century-act. WWW.EPA.GOV/CCR 7. Chemical Watch, Global Risk & Regulation News, Senator seeks prioritisation of PFOA under reformed TSCA, Federal review NYSDEC LINKS: sought to understand long-term effects of exposure, June 30, 2016 EMERGENCY ADOPTION: 6 NYCRR SECTION 597.3— at https://chemicalwatch.com/48369/senator-seeks-prioritisation- LIST OF HAZARDOUS SUBSTANCES of-pfoa-under-reformed-tsca. WWW.DEC.NY.GOV/REGULATIONS/104968.HTML 8. Greenwire, Drinking Water: Oversight Republicans probe N.Y. ENVIRONMENTAL DEFENSE FUND—LEAD: contamination response, July 7, 2016. LEAD PIPES: A THREAT TO KIDS ACROSS AMERICA 9. CPLR 214-f. WWW.EDF.ORG/LEAD-PIPES-THREAT-KIDS-ACROSS- AMERICA 10. “Gov. Cuomo urged to sign legislation allowing residents to file personal claims in water contamination crisis,” ABC News LEAD REMAINS A NATIONAL PROBLEM THAT THREATENS Channel 10, Albany, July 20, 2016. THE HEALTH OF ALL AMERICANS HTTP://BLOGS.EDF.ORG/HEALTH/FILES/2016/03/LEAD- POISONING-PREVENTION-EDF-PLAN-3-16-16.PDF?_GA=1. Marla E. Wieder is an Assistant Regional Counsel in 92100253.643724247.1459548139 USEPA Region 2’s New York and Caribbean Superfund Program, and is currently serving as treasurer for the CENTERS FOR DISEASE CONTROL NYSBA Environmental Law Section. & PREVENTION—LEAD: LEAD TIPS: WWW.CDC.GOV/NCEH/LEAD/TIPS/WATER. Any opinions expressed herein are the author’s own, and HTM#RESOURCES do not necessarily reflect the views of the U.S. Environmental SAFE WATER USE IN FLINT: WWW.PHE.GOV/EMERGENCY/ Protection Agency. EVENTS/FLINT/PAGES/WATER.ASPX

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 35 New York Environmental Laws Affecting Commercial Leasing Transactions By Larry Schnapf

New York Inactive Hazardous Waste spills each year in New York. Because of the number of Disposal Site Law sites that are potentially subject to Article 12 of the Navi- 6 Under the State Superfund (SSF),1 the New York State gation Law, the Oil Spill Law may be the most signifi- Department of Environmental Conservation (NYSDEC) cant source of liability to owners and operators of com- is authorized to establish a registry of sites contaminated mercial properties in New York. 2 with hazardous waste. The NYSDEC must notify own- The Oil Spill Law prohibits the unpermitted dis- ers of sites that are proposed to be placed on the registry. charge of petroleum into the waters of the state or onto Owners or operators of sites that are listed on the registry land from which the petroleum might drain into state may petition the NYSDEC to have the site de-listed or to waters.7 Dischargers of petroleum are strictly liable with- have the classification changed. The NYSDEC is required out regard to fault for all cleanup and removal costs, as to convene an adjudicatory hearing within 90 days of re- well as direct and indirect damages.8 The statute does ceiving a de-listing petition and provide at least 30 days’ not define the term “discharger” and the courts have notice of a scheduled hearing. The NYSDEC is required to broadly interpreted the term so that it has been applied issue a ruling within 30 days after the hearing.3 to owners and possessors of land. However, mere own- If the NYSDEC determines that a site poses a “signif- ership of contaminated land is not enough, by itself, to icant threat” to the environment, it may order the owner impose liability on a property owner.9 of the site and/or any other person responsible for the The NYSDEC is authorized to clean up discharges of disposal of the hazardous waste to develop a remedial petroleum and may enter contaminated property with- program acceptable to the NYSDEC and to implement out first obtaining a warrant or other court order.10 Usu- the remedial program.4 However, the NYSDEC cannot ally, the NYSDEC will first offer the alleged discharger issue a cleanup order until after the alleged responsible an opportunity to implement a cleanup by entering into party is provided with a hearing. Moreover, a party who a short-form Stipulation Agreement (STIP); the party has been issued an order after an administrative hearing does not admit liability and will not be assessed any pen- may seek judicial review of that decision.5 If the NYS- alty. If the discharger declines to enter into the STIP, the DEC cannot identify or locate the responsible person, the NYSDEC may commence formal administrative proceed- agency may implement the remedial action. ings to require clean up and collect fines for failure to The categories of potentially responsible parties report or to clean contaminated a site. Frequently, these (PRPs) under the SFF are similar to those under the Com- cases are settled using a traditional consent order but the prehensive Environmental Response, Compensation, and settling party will have to pay fines, which can be signifi- Liability Act (CERCLA) since PRPs include anyone who cant.11 might be liable under a statutory or common law liability For more complex remediation projects, the NYSDEC scheme. The SSF has the same third-party and innocent may require the responsible party to enter into a long- landowner defense, but no bona fide protective purchas- form consent order. The long-form order is drafted to ers (BFPP) or contiguous property owner (CPO) protec- address site-specific issues, and its terms are subject to tions. However, because the NYSDEC does not have negotiation. While the STIP will address only the cleanup authority to seek cost recovery under the SSF, the agency portion of a spill site, the long-form order may address and private parties use CERCLA and common law theo- other aspects of the situation, including possible fines ries of liability to seek reimbursement of their response and/or penalties. costs. Some cases have held liable as dischargers owners If the NYSDEC determines that contamination at a who unwittingly purchased property with abandoned site poses a significant threat and therefore is eligible for underground storage tanks (USTs) that had previously listing, a purchaser/lessor of the site might be able to de- leaked.12 The leading case on liability of lessors under fer the listing by enrolling the site in the state Brownfield the Navigation Law is State v. Green.13 This case involved Cleanup Program (discussed below). However, this must a discharge of oil from a 275-gallon above-ground stor- be done before a final listing decision is made. age tank (AST) owned by a tenant at a mobile home New York Oil Spill Law park. In holding the lessor liable for the cleanup costs, Petroleum-contaminated sites comprise the largest the N.Y. Court of Appeals ruled that a landowner could category of contaminated sites in New York. Indeed, be liable as a discharger where it had both control over there are approximately 15,000 to 20,000 new petroleum activities occurring on the property and reason to believe

36 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 that its tenants would be using petroleum products. NYS Spill Hotline.19 The NYSDEC spill reporting regula- The Court found that the owner of the trailer park had tions also impose reporting obligations on the owner or through its lease the ability to control potential sources of operator of the facility where the spill occurred, as well contamination on its property, including the maintenance as the person who was in actual or constructive control of a 275-gallon AST, and that the owner’s “failure, unin- of the petroleum.20 tentional or otherwise, to take any action in controlling A “faultless landowner” who is liable as a discharger the events that led to the spill or to effect an immediate simply because of its status as the owner of the property cleanup renders it liable as a discharger.” impacted by the discharge may seek contribution.21 In- In State of New York v. Speonk Fuel Inc.,14 the Court nocent parties may also seek reimbursement from the Oil of Appeals reaffirmed that liability may be imposed on Spill Fund. However, lessors or tenants who are consid- property owners not just for active conduct, but also ered dischargers may not obtain reimbursement from the based on their “capacity to take action to prevent an oil spill Oil Spill Fund even if they paid more than their fair share or to clean up contamination resulting from a spill.”15 As a of the cleanup costs. Claims for reimbursement must be result, the court found Speonk liable as a discharger be- made within three years after discovery of the damage cause it knew about the spill, but failed to clean it up. and no later than 10 years after the incident.22 A number of appellate courts have held lessors liable The Navigation Law also authorizes the state to file for tanks operated by their tenants under a “capacity to a lien against the land where the discharge took place control” analysis even in the absence of any evidence when the Oil Spill Fund incurs costs to clean up or re- that the lessor caused or contributed to the discharge.16 move a discharge or makes payment to satisfy claims Other courts have found that lessors may be owners of asserted by injured parties and a landowner fails to make the USTs since they become trade fixtures, usually after payment within 90 days of a demand. The lien is a non- tenants have vacated the premises. Many of these cases priority lien that does not subordinate previously per- tend to involve former gas stations.17 At least one court fected security interests.23 has held lessors liable even when they were not aware of Petroleum Bulk Storage Act the existence of the USTs or failed to remediate the con- 24 tamination after purchasing the property and discover- The Petroleum Bulk Storage Act (PBSA) comple- ing the contamination.18 ments the Oil Spill Law. Like the federal UST program, owners and operators of USTs and ASTs with a combined Dischargers are required to report any unauthorized storage capacity of 1,100 gallons of petroleum are re- spills of petroleum within two hours of discovery to the quired to register their tanks and to comply with certain

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NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 37 design and operational standards and requirements, as are out-of-service for more than one year must undergo well as closure requirements.25 closure. However, unlike the federal UST program, the NYSDEC PBSA program does not require an environ- For purposes of determining if a property is subject to mental assessment to close heating oil tanks. The tank has the PBSA program, heating oil tanks that have capacities to be cleaned out and visually inspected for holes but soil of less than 1,100 gallons are not counted. Thus, a prop- or groundwater samples are not ordinarily required to erty with three 500-gallon heating tanks would not be achieve closure of heating oil tanks unless there is visual subject to the PBSA, even though the total storage capac- evidence of a leak. Thus, it is possible that a heating oil ity of the tanks is 1,500 gallons. tank that was closed in place and obtained regulatory The PBSA imposes reporting obligations on “any per- closure by the NYSDEC may have impacted the property. son with knowledge of a spill, leak or discharge” of petro- Accordingly, it is advisable for purchasers and prospec- leum that exceeds 25 gallons or creates sheen on nearby tive tenants of property with abandoned heating oil tanks surface water.26 While this reporting obligation was tra- to review the closure documentation to see if sampling ditionally viewed as applying only to parties who own was conducted. In the absence of such documentation, or operate facilities that store more than 1,100 gallons of the purchaser should consider conducting its own sam- petroleum, an administrative law decision extended the pling since the purchaser could be strictly liable under reporting obligation to environmental consultants.27 Re- the state Navigation Law if an abandoned tank that was porting obligations for smaller facilities are governed by closed in place has impacted the environment. the Oil Spill Law. Brownfield Cleanup Program If the NYSDEC suspects or believes that a UST is The Brownfield Cleanup Program (BCP) is the state’s leaking, it may order the owner to perform a tightness voluntary cleanup program.29 Applicants may include test. If the owner fails to conduct the test within 10 days, current property owners, prospective purchasers, devel- the NYSDEC may conduct the test and seek reimburse- opers and tenants. There are two types of applicants and ment of its reasonable expenses.28 the applicant category influences the potential scope of the cleanup. USTs that are temporarily out of service (30 days or more) must be drained of product to the lowest draw-off A “volunteer” is an applicant that is not responsible point. Fill lines and gauge openings must be capped or for the contamination. This could include purchasers, plugged, and inspection and registration must continue. new tenants and developers. It could also include exist- Those tanks that are permanently out of service must be ing owners or tenants provided that they did not cause or emptied of liquid, sludge and vapors. The tanks that are contribute to the contamination. Applicants that would permanently out of service must then either be removed be considered “responsible parties” would be accepted as or, if left in place, USTs must be filled with solid, inert ma- “participants.” The key distinction between a “volunteer” terial such as sand or concrete slurry. The NYSDEC must and a “participant” is that the volunteer is required only be notified 30 days prior to filling or removal. to clean up on-site contamination, while participants have to remediate off-site, as well as on-site, contamination. The performance and operating standards for regu- The ability to confine the cleanup to the brownfield site is lated USTs under the PBSA program are considerably an extremely important benefit because it not only limits more extensive than those for ASTs. However, the rules the cleanup costs but also helps eliminate uncertainty for classifying a tank as a UST or AST are quirky. A tank about the ultimate costs of cleanup since parties can located in a building basement or on a below-grade floor develop worst-case scenarios on the volume of soil that that is encased in a vault that does not have any “weep would have to be removed from a site. holes” or a manway, so that the tank cannot be observed, will be considered a UST. Owners and operators of such An important benefit of the BCP is that applicants tanks would be subject to the full panoply of UST require- receive a no further action letter known as a Certificate ments under the PBSA regulatory program, such as pe- of Completion (COC), after they complete a NYSDEC- riodic tightness testing. Thus, it is particularly important approved cleanup. The COC contains a covenant not to to ensure that tanks in commercial buildings are properly sue from the State of New York that runs with the land registered. and will also provide contribution protection. Nassau, Suffolk, Rockland, Westchester and Cortland The tax credits available under the BCP (discussed counties have been authorized by the NYSDEC to admin- below) were scheduled to expire at the end 2015. The ister the program for tanks located in those areas. Because looming sunset meant that existing applicants had to ob- these counties may have more stringent requirements tain a COC by the end of the year to be able to claim the than the state, owners and operators should contact the BCP tax credits. county to learn of specific local requirements. After several unsuccessful efforts, Governor Andrew The NYSDEC PBSA program has some odd rules Cuomo and the Legislature were able to reach an agree- for heating oil tanks as well. Regulated PBSA tanks that ment on sweeping reforms to the BCP as part of the 2015–

38 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 2016 budget agreement.30 The legislation, which took in the BCP to perform an unrestricted residential cleanup effect on July 1, extended the BCP for 10 years, curtailed to support a multi-family development. the tax credits available to applicants and amended the definition of a brownfield site. The changes to the calcula- Sites that are already subject to an enforcement order tion of the tax credits and eligibility for certain tax credits are not eligible for the BCP. This prohibition does not ap- do not apply to applicants that were accepted into the ply to petroleum-contaminated sites with STIPs. Effective BCP prior to the July 1 effective date. July 1, sites that were on the state Registry of Inactive Hazardous Wastes Sites (state Superfund list) or were Under the 2015 amendments, current applicants will under the federal Resource Conservation and Recovery be grandfathered under the existing BCP tax credit frame- Act (RCRA) may be eligible for the BCP where the site is work, provided they comply with one of the following owned, or under contract to be purchased at the time of COC deadlines: Applicants who were accepted into the the application, by a volunteer, and the NYSDEC has not BCP prior to June 23, 2008, must obtain their COCs by De- identified a responsible party with the ability to pay for cember 31, 2017, while applicants accepted after that date the investigation or cleanup of the site. The new RCRA and before the July 1 effective date of the changes will exemption should be particularly useful for abandoned have until December 31, 2019, to receive COCs. RCRA-regulated properties in upstate or western New

“In order to curtail some applicants claiming costs of artwork and furniture for hotels or rental property, the 2015 amendments limit QTPs to tangible property with a useful life of at least 15 years.”

Applicants that receive a notice of acceptance be- York, as well as downsized RCRA-regulated facilities, by tween July 1, 2015 and December 31, 2022, will have until allowing portions of these sites subject to RCRA permits March 31, 2026, to obtain their COCs. Existing applicants to be sold to developers. who fail to obtain COCs by the applicable date for their project will not be terminated but will be treated as Brownfield Tax Credits though they were accepted after July 1 and will be subject In addition to liability protections, the BCP offers the to the new tax credit framework. most generous tax credits in the country. The Brownfield What Is a Brownfield Site? Tax Credits (BCTs) are refundable, so to the extent that the credits exceed the applicant’s tax liability, the credit The newly revised definition of a brownfield site is is treated as a tax overpayment and the state will issue a now any real property with contamination that requires check. Applicants can claim three types of tax credits. remediation. An applicant must demonstrate that a site has contamination in excess of applicable NYSDEC stan- The first tax credit is known as the Site Prepara- dards based on the reasonably anticipated use of the tion Cost (SPC) credit. Applicants accepted into the BCP property. Applicants will have to include at least a Phase prior to July 1, 2015, are entitled to two categories of SPC 2 assessment (e.g., soil or groundwater samples) to estab- credits. The first category includes those costs necessary lish the presence of contamination requiring remediation. to qualify the site for a COC, while the second category It is unclear if the applicant or the NYSDEC will be the includes those costs incurred to prepare the property for final arbiter of what is the reasonably anticipated use. development. Thus, for grandfathered sites, the SPC in- cludes not only cleanup costs but also demolition, soil ex- Sites may be accepted into the BCP when the con- cavation, scaffolding, support of excavation and dewater- tamination is from a source on the property or when ing expenses. Depending on the cleanup track achieved, the groundwater beneath the property or contaminated applicants may claim between 28% and 50% of their SPCs vapors in the soil are migrating from an off-site source. and five years of groundwater remediation costs. However, the applicants of such sites will not be eligible for the tangible property tax credits, though they will be Because of the perception that excess SPCs were be- able to claim the site preparation tax credit (discussed ing claimed for excavation and foundation costs unre- below). lated to contamination (e.g., excavating clean dirt to make room for subgrade parking), the 2015 amendments to the Sites will not be eligible for the tangible property tax BCP program severely curtailed the eligible SPCs to only credit where the property was previously remediated those expenses necessary to implement a site investiga- under a NYSDEC remedial program, and the site could tion or remediation, or to otherwise qualify for a COC. be developed for its then-intended use. It is unclear how These changes apply to applications accepted on or after this provision will be interpreted in circumstances where, July 1. For example, if a site has five feet of contaminated for example, a prior cleanup achieved a commercial level soil but the soil is excavated to a depth of 15 feet to ac- of cleanup and the applicant would like to enroll the site

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 39 commodate the development, it is conceivable that the • the property is “upside-down”—the projected re- state Department of Taxation and Finance (DTF) will take mediation costs are at least 75% of the appraised the position that only the expenses related to excavating value of the property at the time of the application. the first five feet of contaminated soil will be eligible for The appraised value must be based on an “as if” SPC treatment. Furthermore, eligible SPCs will include hypothetical assumption that the property is not only foundation costs required as to construct a cover sys- contaminated. It should be noted that while there tem (e.g., engineering controls).31 are a variety of ways to calculate property value (e.g., income stream, cost to repair and comparison The change in the SPC definition will not only re- sales), the law does not specify which approach is duce the amount of SPC tax credits that an applicant may to be used; and, claim, but it will also serve to reduce the SPC cap for a site since the costs used to calculate the 3x cap will be re- • the property is “underutilized.” duced. The definition of an “affordable housing” project The amendments also clarify that costs for abatement was not defined in the statute. Instead, the NYSDEC was of asbestos-containing building materials, lead-based required to propose a definition, which was published paint or PCBs in existing buildings qualify for the SPC in the June 10 issue of the State Register. Unlike the “un- tax credit. In addition, SPCs can be claimed for up to five derutilized” definition, the NYSDEC was not required to years after issuance of a COC for costs of implementing adopt the “affordable housing” definition by a specific institutional and engineering controls, an approved site date. Although the definition has not been finalized, the management plan, and an environmental easement. NYSDEC did not receive significant adverse comments to its proposed definition. Applicants of affordable housing The second, and arguably the most generous, BTC projects may elect to use the proposed definition if they that is available is the qualified tangible property (QTP) want a determination that they qualify for the “affordable tax credit, which ranges from 10% to 24% of the value housing” gate. of the improvements constructed on the brownfield site, subject to a cap of $35 million or three times the site The term “underutilized” was also not defined in the preparation costs, whichever is less. For sites accepted legislation. Instead, the NYSDEC was required to publish State Register after July 1, applicants will be eligible for an extra 5% for a definition in the by July 1, 2015, after con- sultation with New York City and the business commu- affordable housing projects as defined by the NYSDEC, nity, and the rule had to be adopted by October 1, 2015. sites located in Environmental Zones (En-Zones),32 sites The NYSDEC’s proposed definition was very narrow and located within a Brownfield Opportunity Area (BOA) the agency received numerous negative comments. As a where the development conforms to the plan for a BOA result, the agency is in the process of revising the under- certified by the Department of State, and sites used utilized definition. primarily for manufacturing activities. Applicants (or their transferees) will have up to 120 months after the While the NYSDEC is making eligibility determina- issuance of a COC to place a building into service (i.e., tions for NYC sites, the agency cannot yet make any de- obtain a Certificate of Occupancy) and claim the QTP termination if the project qualifies for the underutilized credit. gate since the definition has not been adopted. In other words, an applicant may be accepted into the BCP but it In order to curtail some applicants’ claiming costs of will not learn if it qualifies for the underutilized gate until artwork and furniture for hotels or rental property, the the NYSDEC finalizes its rule. Since the NYSDEC failed 2015 amendments limit QTPs to tangible property with to adopt the underutilized definition by the October 1 a useful life of at least 15 years. QTP-eligible costs now deadline, it is quite possible that the QTP changes are not expressly include demolition and foundation costs that in effect and that the QTP remains “as of right” for NYC are not included in the SPC component, as well as costs sites. associated with non-portable equipment, machinery and associated fixtures and appurtenances used exclusively The final tax credit available for post-COC ground- on the site, regardless of their depreciable life for federal water monitoring costs is at the same percentage of the income tax purposes. SPC credit. This credit may be claimed annually for the five-year period following the issuance of the COC. The 2015 BCP amendments eliminate the QTP as an “as of right” credit for BCP sites in New York City. After Prior to the 2015 amendments, BCP applicants had July 1, applicants for NYC sites have to satisfy one of the been eligible to receive two additional types of tax credits: following criteria to be eligible for the QTP credit: (1) credits against eligible real property taxes based on the number of jobs at a brownfield site and (2) environmental • at least half of the site is located in an En-Zone; remediation insurance credits. These two credits are no longer available for sites accepted after July 1. However, • the property is an “affordable housing” project; grandfathered applicants can still claim them.

40 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 BCP Eligibility and Commercial Leasing viously, the standard environmental contingency clause The potential for BCP eligibility raises a number of that prohibits the tenant from notifying the NYSDEC of issues in commercial leasing transactions. The challenges the sampling results will be inadequate. For existing leas- are different for a new lease, where the parties contem- es and long-term ground leases that were executed before plate submission of a BCP application, as opposed to an the potential for a BCP application was contemplated, a existing lease, where the tenant may want to take advan- separate access agreement is likely the easiest route for tage of the BCP to help finance building renovations or satisfying this requirement. expansions. There is an important cautionary note about includ- The first question is, Who can claim the tax credits? ing the property owner on the application or the BCA. Remember that only the party that actually incurs eligible If the NYSDEC considers the lessor to be a responsible costs and is named on the COC may claim the BCP tax party, this could expand the scope and complexity of credits. The lessee would be the logical party for submit- the cleanup. The reason is that if an application is jointly ting the application if it is going to be incurring the costs submitted by a “volunteer” applicant (i.e., the tenant) of the project. and a participant (property owner), the application will be treated as one submitted by a participant and the BCA However, as explained below, because the applicant would identify the applicants as participants. As ex- has to obtain the consent and cooperation of the property plained previously, this means that the applicants would owner at several stages in the BCP process, the lessor may have to address any off-site contamination that may be have leverage to seek to participate in the BCP tax cred- emanating from the site. Thus, the lessor status should be its. The lessor can participate in the BCP tax credits; this considered and discussed with the NYSDEC before in- can be accomplished in a number of ways. The parties cluding the lessor in the application or on the BCA. can submit a joint application so that both the lessee and lessor sign the Brownfield Cleanup Agreement (BCA). If Of course, the reverse situation could also occur the lessee has already submitted the BCP application and where there is a purchaser, but also an existing lessee who executed the BCA, the lessor can be added to the BCA would be considered a participant—likewise, if a seller by filing a BCA amendment—but only before the COC wants to participate in a proposed brownfield application is issued. Finally, the application could be submitted by by a purchaser. a joint venture of the lessor and lessee, or by an entity in BCP-EZ Program which the lessor owns or purchases membership interests. The BCP-EZ program is directed toward the swift Since a Phase 2 assessment will have to be included remediation of lightly contaminated sites. The BCP’s in the BCP application, a new tenant considering apply- remediation requirements mandate extensive public par- ing to the BCP will have to negotiate the right to collect ticipation, which often leads to longer project completion soil and groundwater before it takes possession of the times and substantially higher costs. While this can be a premises. If acceptance into the BCP will be a condition to reasonable tradeoff in exchange for generous BTCs, some entering into the lease, this work may have to be sched- may, for various reasons, prefer to instead obtain the li- uled several months before the commencement date of ability protection provided by COCs. Because of this, the lease because of the time it takes for an application to the BCP amendments authorize, but do not require, the be accepted by the NYSDEC. NYSDEC to establish a streamlined cleanup program for parties that are willing to waive tax credits—the BCP-EZ If the cleanup does not achieve an unrestricted resi- program. Cleanups under this program must still satisfy dential standard, the NYSDEC will require the use of set minimum requirements, but the NYSDEC is permitted institutional and engineering controls. These controls will to waive certain public participation requirements and, be memorialized in an environmental easement that must under certain circumstances, allow applicants to petition be executed and recorded by the lessor. The environmen- for more permissive cleanup standards. The NYSDEC tal easement must be recorded before the NYSDEC issues hopes to promulgate rules for the BCP-EZ in 2016. It is its COC. If the lessor refuses to execute or record what anticipated that the Voluntary Cleanup Program (VCP), amounts to use restrictions on its fee, the lessee/BCP ap- administered by the New York City Office of Environ- plicant will have to implement a more costly unrestricted mental Remediation (OER), will serve as the BCP-EZ pro- cleanup to obtain a COC. Thus, the lease should contain gram for NYC sites. The OER VCP will be discussed in a covenant requiring the lessor to cooperate and execute the next installment of this series. any documents required by the NYSDEC in connection with the BCP. Hazardous Waste Program Fee Waiver When the applicant does not own the land, the NYS- Urban fill material often contains metals and other DEC will require that the applicant have access to the site contaminants that are unrelated to any on-site spills but to implement all requirements of the BCP. The tenant can are associated with the source of the fill material (e.g., coal ash). New York State law imposes a program fee on par- demonstrate access by either having the access set forth 33 in the lease or through a separate access agreement. Ob- ties that generate and dispose of hazardous waste, some

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 41 of which can be substantial, running into the hundreds of and occupants. In 2008, the law was amended to require thousands of dollars. The program fee is in addition to the landlords to disclose to existing and prospective tenants costs for disposing of the hazardous fill material. “test results” received from responsible parties indicat- ing levels in excess of NYSDOH or federal Occupational The hazardous waste program fee was intended to Safety and Health Administration (OSHA) guidelines for incentivize manufacturers to reduce the use of hazardous indoor air quality. The disclosure statute does not distin- substances in their operations. However, the NYSDEC guish between residential and commercial property. has applied the fees to parties that have excavated con- taminated urban fill material that qualifies as hazardous Within 15 days of receiving an “air contamination waste. While there was an exemption for cleanups con- report” from the responsible party, the property owner ducted under the SSF program or the BCP, many projects must provide a fact sheet (generic fact sheets are to be excavating fill material had not enrolled in any NYSDEC developed by NYSDOH) identifying the contaminant remedial programs when they learned the soil had to be of concern and a means to obtain more information, as managed as hazardous waste, since they thought the site well as timely notice of any required public meetings to was not contaminated. As a result, they unexpectedly be held to discuss such results. In addition, if a tenant re- found themselves having to pay a significant program quests a copy of the test results and any closure letter, the fee. In addition, sites remediated under the OER VCP or property owner must provide the documents within 15 “e” designation program were not covered by those ex- days of receipt of such request. emptions.34 The 2015 amendments extend the hazardous waste program fee for waste generated in connection with If a property has an “engineering control” in place to cleanups enrolled in OER VCP. However, the waiver does mitigate indoor air contamination, or a monitoring pro- not apply to sites generating hazardous waste as part of gram as part of a continuing remediation program, the cleanups to comply with the “e” designation program. property owner must provide the same notice. The prop- erty owner must do this before a prospective tenant signs Vapor Intrusion Disclosure Law any “binding lease or rental agreement.” Vapor intrusion refers to the vertical or lateral migra- tion of volatile organic compounds (VOCs) from soil or In addition, a property owner subject to the disclo- groundwater into buildings. In extreme cases, these va- sure obligation must include a disclosure notice in rental pors can accumulate at levels that create immediate safety or lease agreements for the location and must include the hazards (such as explosions), illness, or aesthetic prob- following language in 12-point bold face type on the first lems (such as odors). More typically, however, when VOC page of any lease or rental agreement: vapors migrate into buildings, the levels are much lower, NOTIFICATION OF TEST RESULTS The creating the more insidious risk of chronic health prob- property has been tested for contamination lems arising from long-term exposure. The contaminants of indoor air: test results and additional that typically pose a risk of vapor intrusion are chlorinat- information are available upon request. ed solvents, like those used in dry cleaners; benzene from gasoline; naphthalene from heating oil; and mercury. A property owner that violates the disclosure re- quirement could face general criminal or civil penalties Historically, the NYSDEC focused primarily on soil provided by the ECL. If the indoor air contamination is and groundwater contamination and did not regard vapor determined to create an imminent and substantial endan- intrusion as a significant potential risk unless VOC con- germent, the property owner could face injunctive relief tamination occurred directly next to an occupied building as well as fines of up to $2,500 for each violation and $500 or directly below its foundation. Therefore, the NYSDEC per day for each day it continues. If the property owner remediation programs usually focused on reducing soil or becomes a responsible party under the state Superfund groundwater contamination, or at least eliminating path- law, the violations could cost as much as $37,500 per day. ways by which such contamination could reach people. The regulatory landscape changed a few years ago The disclosure law does not require property owners after the NYSDEC discovered significant levels of VOCs in to conduct their own tests or to perform any retesting. In residences near a number of contaminated sites. The NYS- cases where test results did not use actual indoor air sam- DEC subsequently announced that it would re-evaluate up ples but instead were extrapolated using modeling based to 721 sites across the state where cleanups had been con- on soil or groundwater samples, a property owner may sidered complete. In addition, both the NYSDEC and the (but also may not) want to take samples to confirm that air New York State Department of Health (NYSDOH) have is- within the building complies with applicable guidelines. sued guidance on evaluating the vapor intrusion pathway. The vapor intrusion disclosure law does not seem to Title 24 of the ECL35 requires responsible parties re- apply if a property owner unilaterally discovers air con- mediating a site under the state Superfund program or tamination problems such as from public records or trans- another remedial program to give landowners copies of actional due diligence. Of course, the property owner air contamination reports. Originally, this law did not re- might have disclosure obligations under other environ- quire property owners to disclose those reports to tenants mental laws or the common law. Moreover, a violation of

42 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 the new statute might serve as evidence of breach of duty sufficient control. See In re Huntington & Kildare, 932 N.Y.S.2d 558 in a negligence action against the property owner. (3d Dep’t 2011); State of N.Y. v. C.J. Burth Servs, 915 N.Y.S.2d 174 (3d Dep’t 2010); State of N.Y. v. LVF Realty Co., 873 N.Y.S.2d 664 To avoid liability to its own tenants, the property (2d Dep’t 2009); State v. B & P Auto Serv. Ctr., Inc., 814 N.Y.S.2d 367 (3d Dep’t 2006); State of N.Y. v. Dennin, 792 N.Y.S.2d 682 (3d owner might need to take abatement measures to prevent Dep’t 2005); Roosa v. Campbell, 737 N.Y.S.2d 461 (4th Dep’t 2002). vapors from migrating into its building. When the vapors 17. Veltri v. N.Y. State Office of the State Comptroller, 916 N.Y.S.2d 315 (3d are migrating from an off-site source or the current owner Dep’t 2011); Golovach v. Bellmont, 773 N.Y.S.2d 139 (3d Dep’t 2004); is not considered a responsible party, the owner will not 310 S. Broadway Corp. v. McCall, 712 N.Y.S.2d 206 (3d Dep’t 2000). typically be required to remediate the contaminated soil or 18. Sunrise Harbor Realty, LLC v. 35th Sunrise Corp., 927 N.Y.S.2d 145 groundwater but simply to have a vapor venting system (2d Dep’t 2011). installed to capture the fumes and redirect them into the 19. 1-800-457-7362. The reporting requirement does not apply to outside air. These venting systems can be relatively inex- spills that meet all of the following criteria: (i) The quantity is pensive if installed as part of new construction. Retrofit- known to be less than 5 gallons; (ii) the spill is contained and ting an older building can be more challenging and expen- under the control of the spiller; (iii) the spill has not and will not reach the state’s water or any land; and (iv) the spill is cleaned up sive, though. If the responsible party is subject to a federal within two hours of discovery. Navigation Law § 175. Comprehensive Environmental Response, Compensation, 20. N.Y. Comp. Codes R. & Regs. tit. 17, pt. 32.3 (N.Y.C.R.R.). and Liability Act (CERCLA) or SSF order, it will often be required to install the venting system. For voluntary clean- 21. Navigation Law § 181(5). ups, though, the property owner would have to install 22. Navigation Law § 182. the system and then decide if it wants to try to recover the 23. Navigation Law § 181-a. The notice of lien is indexed in the same costs from a responsible party in a CERCLA contribution manner as a lien under Lien Law § 10. An action to vacate an environmental lien is governed by Lien Law § 59, and should not or cost-recovery action, or common law theory. Alterna- be brought as an Article 78 proceeding. Art-Tex Petroleum, Inc. v. tively, the owner could try to treat the costs of the venting N.Y. State Dep’t of Audit & Control, 93 N.Y.2d 830 (1999). system as operating expenses for purposes of operating 24. ECL § 17-0101, “Control of the Bulk Storage of Petroleum.” expense escalations in its leases. Whether tenants will ac- 25. 6 N.Y.C.R.R. pts. 613, 614. cept that may represent another issue entirely. 26. 6 N.Y.C.R.R. pt. 613.8. Endnotes 27. In re Middletown Kontokosta Assocs., Ltd., NYSDEC Case No. R1- 1. N.Y. Environmental Conservation Law (ECL) §§ 27-1301 et seq. 6039. 2. There are five classifications of sites on the SSF list: The sites are 28. ECL § 17-1007(2). to be classified as follows: Class 1 (poses an imminent danger of 29. ECL §§ 27-1401 et seq. causing irreversible or irreparable damage to the public health and the environment. Immediate action is required. The only 30. 2015 N.Y. Laws ch. 56. Class 1 site that was assigned this designation was the infamous 31. Eligible costs include those related to engineering and Love Canal site); Class 2 (poses significant threat to public health environmental consulting costs, legal costs, transportation and or the environment. Action is required. This is equivalent to the disposal of contaminated soil, remediation measures taken to federal NPL); Class 3 (does not present a significant threat to address contaminated soil vapor; cover systems consistent with public health or the environment. Action may be deferred); Class applicable regulations; physical support of excavation; dewatering 4 (site properly closed but continued management is required); and other work to facilitate or enable remediation activities; and Class 5 (site is properly closed and there is no evidence of sheeting, shoring, and other engineering controls required to present or adverse impact so no further action is required). prevent off-site migration of contamination from the qualified 3. ECL § 27-1305(4)(d). site or migrating onto the qualified site; and the costs of fencing, temporary electric wiring, scaffolding, and security facilities until 4. ECL § 27-1313(3)(a). such time as the certificate of completion has been issued. 5. ECL § 27-1313(4). 32. An En-Zone is a census tract with a poverty rate of at least 20% 6. Navigation Law §§ 170–197. and an unemployment rate of at least one and one-quarter times the statewide unemployment rate based on the most recent five- 7. Navigation Law § 173. year American Community Survey (ACS) or areas with poverty 8. Navigation Law § 181. rate of at least two times the poverty rate for the county in which 9. The same third party defense contained in CERCLA and the SSF the areas are located based on the most recent five-year ACS. was added to the Oil Spill Law in 2003. However, state courts 33. ECL § 72-402. have not had an opportunity to address this defense. 34. ECL § 72-0402(1)(d). These will be discussed in the next part of 10. Navigation Law § 176. this series. 11. Indeed, some apartment buildings have paid fines in excess of 35. ECL § 27-2405. $1 million for failing to promptly report and clean up spills from heating oil tanks. Larry Schnapf is the principal of Schnapf LLC and 12. State v. Tartan Oil Corp., 638 N.Y.S.2d 989 (3d Dep’t 1996); White v. an adjunct professor at New York Law School where he Regan, 575 N.Y.S.2d 375 (3d Dep’t 1991); State v. King Serv. Inc., 563 teaches Environmental Issues in Real Estate and Busi- N.Y.S.2d 331 (3d Dep’t 1991). ness Transaction. He is the author of Managing Environ- 13. 96 N.Y.2d 403 (2001). mental Liability in Transactions and Brownfield Rede- 14. 3 N.Y.3d 720 (2004). velopment, published by JurisLaw Publishing, serves as 15. Id. at 724 (emphasis added). co-chair of the NYSBA brownfield task force, and is the 16. Subsequent cases finding lessors liable as dischargers based on current chair of the NYSBA Environmental Law Section.

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 43 The Environmental Lawyer’s Role in an Environmental Crisis By Daniel Riesel and Adam Stolorow

Environmental emergencies such as a large spill of Moreover, the criminalization of environmental regu- petroleum or toxic waste, leaching of substances into a lation has emerged as a major undertaking at all levels public water supply, explosions, or significant injuries re- of government. Recently, the Department of Justice has sulting from exposure to hazardous substances most often added the element of pinning criminal responsibility on require immediate attention in numerous areas. Although individuals in addition to the business organization.3 This a popular professional concept involves the prioritizing added element can handicap the environmental lawyers of responses, in real life this distinction is often negligible attempt to manage the environmental crises. because the institution facing the emergency has to quick- ly evaluate the effects of each response, whether taken at All of this occurs while the client may be under siege, the same time or in a sequential manner. with no time for time-consuming analyses. Indeed, the client must react to varying emergent problems that make There is a tension that permeates an institution’s re- inconsistent demands. sponse to an environmental emergency: the potential con- flict between protecting the environment and protecting Initial Evaluation the institution from untoward liability. The suggestion of Commentators all agree that there must be a com- this writing is that an experienced environmental lawyer mand and control system, ad hoc or otherwise, to manage is well suited to reducing that tension.1 an environmental emergency or crisis; one person has to be in charge.4 Although some environmental lawyers Responses to an Environmental Emergency may be well suited to that role, they are more obviously Responses to such environmental emergencies cut suited to advising the “on-site commander.” However, across disciplines. However, the core issues have signifi- the environmental lawyer is particularly well suited, due cant environmental regulatory compliance components to his day-to-day work, to move beyond a passive advi- and require an understanding of the dangers presented sory role, and should do so where there is a need. Accord- by hazardous materials, which we suggest places the en- ingly, the environmental lawyer regularly representing an vironmental lawyer in a unique position to assist a client institutional client, or one that is called in to deal with the experiencing an environmental emergency. environmental crisis, would be well served to think about implementing the following tasks: Corporate America and the government have reacted to the possibility of environmental emergencies by pro- 1. The need to secure adequate technical assistance to mulgating plans and procedures designed to cope with abate the harm; eventual emergency.2 However, the role of the environ- mental lawyer seems to be “overlooked” in the drafting 2. The competing need to take charge and to struc- of those plans—perhaps because the plans are drafted by ture the remedy in cooperation with the regula- technically inclined persons and consulting firms. In any tors; event, the environmental lawyer, trained as a problem 3. Implementing the client’s spill prevention and re- solver and exposed to the interplay of regulation and sci- medial plans; ence, is well suited to be a participant in such eventuali- ties. 4. Complying with regulatory notification require- ments; Institutional clients usually have established proce- dures to deal with environmental problems but often they 5. Identifying the cause or causes of the immediate are not well suited to deal with a significant environmen- harm; tal emergency, and are ill coordinated at best. Moreover, 6. Determining if there will be long-range harm; triggering events often occur on weekends or at other times when the client’s in-house environmental staff are 7. Controlling the client’s public responses; not on site. 8. Involving the political leaders of the affected com- The client’s responses are often complicated by an munity; uncoordinated response from federal, state and local 9. Providing appropriate assurances to the effected authorities, with the Fourth Estate clamoring for informa- community; tion and often all too eager to publish exaggerations of the potential environmental harm caused by the releases 10. Assuring the surrounding community that they or spill. will be protected, etc.;

44 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 11. Conducting an investigation; local fire department to the U.S. Environmental Protection Agency. The arrival of such outside help is important, 12. Gathering relevant documents; but the environmental lawyer’s task is to make sure that 13. Instituting a “litigation hold” and otherwise pre- the agencies retain confidence in the client’s ability and venting spoliation; willingness to remedy the problem, or to effectively in- tegrate the public support for abatement of the problem. 14. Interviewing relevant personnel; Relatively simple actions such as setting up an accom- 15. Investigating off- site observations or complaints; modating meeting space, arranging for communications amongst the participants, and making sure that all data is 16. Identifying potential “targets” in a criminal inves- available will go a long way to maintaining control.5 tigation and structuring the legal representation so as to avoid recusal; and Interaction with the Public As indicated, environmental emergencies often gen- 17. Informing the client’s insurance carriers. erate basic conflicts. One of them is the tension to assure The parsing of these responses is not in place of the the public that the necessary remedial actions are being primary task of insuring that any threats to public health taken, and on the other hand not to make any critical are minimized or eliminated. admissions that might be revisited by government enforc- ers or private plaintiffs’ tort lawyers. Corporate public- The Critical Elements relations officers are trained to play it safe and will often There are four critical elements in the management of recommend a “no comment” response to the press. This the environmental emergency or crisis: (1) quickly mobi- can be disastrous; people want to be assured that the lizing the right people to analyze the extent of the harm company is doing all that can be done, and want to be in- and effectuate the remedy; (2) getting the facts straight in formed as to the precautions that may be necessary. Here the beginning; (3) prompt implementation of the mitiga- the environmental lawyer may be well qualified to make tion; and (4) controlling the institution’s interaction with an appropriate response that might reflect the client’s ef- the public and government agencies. forts, or an evaluation of the danger or lack thereof. Securing the right technical people is often a sensi- The point here is that the public and their elected lo- tive endeavor because the client may have in-house or cal representatives will resent being kept in the dark on long-standing outside technical personnel. They possess issues that may affect their health and safety. Some com- extensive knowledge of the facility and its operations, but mentators posit that an appropriate information meet- they also can have been the cause of the harm. The envi- ing be held within the first 24 hours of the beginning of ronmental lawyer is uniquely qualified to assist the client the emergency.6 The practical point is that information in assembling the response team due to her experience in should be disseminated as soon as useful information can selecting experts and evaluating scientific data. be evaluated.7 Public safety and relieving the public’s concern are Dissemination of information to the local officials is primary undertakings. A certain amount of emergency an important distinction between press releases and press work will get under way because of the existence of vari- conferences. Local officials do not want to appear to be ous spill-prevention and similar plans. However, the “blindsided” and ineffectual; therefore, they should be home team may not be technically adequate and or may given the special attention that their positions warrant. not be deemed to be adequate by the regulators. In either Just as important as the initial disclosure is the ability instance, it is often prudent to assemble a team of outside of the public to be updated on an ongoing basis. consultants. Here, the problem goes beyond coordination between in-house and outside personnel. Quick analysis In all instances, there should be one well-prepared of available facts will allow the environmental lawyer to spokesperson. tailor the outside help and to assist in making sure that the outside consultants do not run amuck. Reporting Requirements Releases and spills often require prompt reporting Once the technical abatement team is in place, the even where the governmental authority is aware of the lawyer’s role would appear to be a secondary one. How- release or spill. ever, coordination, dissemination, insuring technical data is translated into readily understandable language, and Federal, state, and local environmental laws contain resolving jurisdictional disputes may well benefit from reporting requirements that should be built into incident the efforts of the environmental lawyer. response plans. For example, the Comprehensive Envi- ronmental Response, Compensation, and Liability Act Interaction with the Civil Regulatory Agencies (CERCLA) designates a list of hazardous substances that Spills, releases, and severe accidents involving haz- require notification when released above certain thresh- ardous materials will attract regulators ranging from the old reporting quantities (RQs).8 The Emergency Planning

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 45 and Community Right-to-Know Act (EPCRA) likewise also contain planning requirements, some more compre- designates 360 extremely hazardous substances (EHS), the hensive than domestic planning requirements.19 release of which triggers the requirement to notify state and local authorities.9 The RQs for the extremely hazard- Diligent attorneys will ensure that incident response ous substances are based on the substance’s acute lethal plans are updated, readily available, and trained on, toxicity.10 Releases of reportable quantities of hazardous and will arrange for auditing of plans and training if substances on the CERCLA Section 103 list also trigger necessary. This is particularly important when changes the reporting requirements of EPCRA.11 If a chemical re- in key personnel take place. The chances of achieving lease does occur and exceeds the applicable RQ, the facil- successful response and recovery phase operations drop ity must notify its Local Emergency Planning Committee if incident response plans are inaccessible or out of date (LEPC), State Emergency Response Commission (SERC) (for example, if internal/external points of contact have and the National Response Center (NRC) for any area changed), or if key personnel have not been trained in 20 likely to be affected by the release.12 The facility must pro- their roles.

“At some point after the environmental problem has emerged, the environmental lawyer may have to face the need to investigate the cause and responsibility for the environmental event.” vide a detailed written follow-up as soon as practicable, Coping with the Consequences of the Incident and information about accidental chemical releases must At some point after the environmental problem has be made available to the public.13 Both CERCLA and emerged, the environmental lawyer may have to face EPCRA provide for civil and criminal penalties (includ- the need to investigate the cause and responsibility for ing fines of up to $117,500 per day and imprisonment for the environmental event. A conflict between the public up to 5 years).14 Other federal laws such as the Resource and institutional need may become very apparent at this Conservation and Recovery Act (RCRA), the Clean Water point. Where the cause of the harm is not yet known or Act (CWA), Toxic Substances Control Act (TSCA), and where there is an ongoing threat of harm, the insights of Occupational Safety and Health Act contain their own a formal investigation may have to be subordinated to reporting requirements, so planners need to be aware of the need to quickly ascertain the basic facts. However, the many overlapping reporting requirements. States and environmental lawyer will be aware of the possibility that localities often have their own reporting requirements in the physical abatement issues will be followed by govern- addition to those required under federal law.15 ment inquiry and private tort actions. Accordingly, an in- In some instances, advanced spill prevention plan- vestigation must be promptly initiated to gain the neces- ning for a facility or activity may be required by law. sary strategic position. The elements of the investigation Such plans may be contained within or may stand apart will include such basic steps as instituting a “litigation from an overall incident response plan, but should be hold” on relevant documents, guarding against spoliation consistent with and support the incident response plan. by the improper handling of samples, avoidance of attor- For instance, the Clean Water Act requires facilities that ney recusal, and, perhaps most importantly, avoidance of store any kind of oil over particular volumes to prepare secondary liability from the making of misleading state- and implement Spill Prevention, Control, and Counter- ments to government investigators or obstructing justice measure (SPCC) Plans to prevent the discharge of oil into by an improper interaction with employees. navigable waters or adjoining shorelines.16 SPCC Plans Moreover, environmental emergencies, other than require mitigation measures including adequate second- those caused by natural causes, frequently give rise to ary containment (such as trays, berms, or dikes) around criminal proceedings. This occurrence, or even the prob- oil tanks to prevent a release to the environment in the ability of it occurring also sets up a conflict—the conflict event of a spill. EPCRA requires facilities that maintain of getting the basic facts regardless of the niceties of confi- Extremely Hazardous Substances (EHS) on-site in quan- dentiality etc., and protecting the client and its employees tities greater than corresponding threshold planning from prosecution. quantities to identify the person who will act as facility emergency coordinator and to cooperate in the prepara- That conflict is reflected in the need to immediately tion of local emergency plans.17 State permits (both gen- determine the cause and extent of the environmental eral and individual permits) such as stormwater permits harm, and the most effective method of mediation, re- or construction permits may also require spill prevention gardless of individual or corporate liability. This effort plans.18 Environmental laws outside of the United States will conflict with the traditional compliance counsel’s

46 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 careful attention to explanations against self-incrimina- Conclusion tion, and parsing of potential liability. The environmental The environmental lawyer is in a unique position to lawyer is indispensable in this fast-moving scenario be- help guide her clients through the critical elements in the cause, at a minimum, she should be able to quantify the management of the environmental emergency or crisis. risk of liability arising under federal, state, and local envi- By properly managing the crisis, the lawyer will be able ronmental law. to help effectuate prompt abatement of the emergency Speed, preservation and confidentiality should be the and restoration of the client’s image, while avoiding un- hallmarks of the corporate response to a criminal environ- necessary punishment and perhaps above all, preventing mental investigation. A fair degree of speed is required to the same or similar event from reoccurring. stay ahead of the government’s inquiry. “Preservation” Endnotes is necessary to protect against charges of spoliation of 1. The New York Times Sunday Magazine for January 10, 2016, evidence or obstruction of justice. “Confidentiality” is described an environmental lawyer’s prior training that necessary to shield the conclusions of the investigations it believed well qualified him to successfully handle an from the grand jury process. The knowledge of a possible environmental disaster: “[He] was asked to determine which companies contributed which toxins and hazardous wastes in criminal investigation should trigger the prompt deploy- what quantities to which sites. He took depositions from plant ment of counsel. Moreover, the corporation must make employees, perused public records and organized huge amounts its employees aware that the investigating counsel is to of historical data…became an expert on the Environmental receive their full cooperation. The job of the investigating Protection Agency’s regulatory framework, the [Safe Drinking Water Act, Clean Air Act, and Toxic Substances Control Act]… counsel is both to find out what caused the harm and also mastered the chemistry of the pollutants, despite the fact that who participated in the events that has led to the investi- chemistry had been his worst subject in high school.” Nathaniel gation.21 Rich, The Lawyer Who Became DuPont’s Worst Nightmare, N.Y. Times, Jan. 10, 2016 (Magazine), at 39-40. The need for control as soon as the investigation has 2. See, e.g., Federal Emergency Management Agency (FEMA), commenced can be quickly grasped once the potential National Incident Management System, (2008), available at target understands the minefield of felonies that can be https://www.fema.gov/pdf/emergency/nims/NIMS_core.pdf. exploded by a clumsy response. This minefield is laid 3. See, e.g., Memorandum of U.S Deputy Attorney General not just by the criminal provisions of the federal environ- Yates, Sep. 9, 2015, available at http://www.justice.gov/dag/ file/769036/download. mental laws, but also by numerous statutes that crimi- 4. See, e.g., Clifford J. Villa, Law and Lawyers in the Incident Command nalize interference with government investigations and System, 36 Seattle U. L. Rev. 1855, 1865-66 (2013); see also FEMA, spoliation of evidence. A brief summary of such statutes National Incident management System, supra, at 9-10. follows. Initially, making knowingly false statements to 5. Of course, there will be instances when the client and the government officials on matters within their jurisdiction environmental lawyer will decide that other entities should be the is a felony pursuant to Title 18, Section 1001 of the United lead. States Code. These “1001” violations encompass know- 6. Debra Sabatini Hennelly et al., Responding to an Environmental ingly false or misleading oral statements made to enforce- Disaster, The First 48 Hours, 21 No. 7 ACCA Docket 21, 25-26 (2003). ment personnel. 7. The institution should be able to disseminate “useful” Similarly, causing or counseling witnesses to mis- information under almost any circumstances. For example, the South California Gas Company, faced with an ongoing release of lead federal investigators is a felony, punishable by fines gas that was adversely affecting a Los Angeles suburb, informed and incarceration. The willful destruction of or failure to CNN that “it’s working as quickly and safely as it can to stop the produce evidence subject to a lawful process is a federal leak and that in the meantime it relocated over 2,290 households crime under Section 1001. Similarly, altering, destroy- and would continue to work with affected homeowners.” (CNN, January 7, 2016). ing, or concealing records, documents, or other tangible evidence that reasonably may be subject to a criminal in- 8. 42 U.S.C. § 9602 requires the EPA Administrator to publish a list of hazardous substances and their RQs; 40 C.F.R. § 302.4 provides vestigation, or persuading another person to do so, even the list. The specific requirements for notification to the National in the absence of the service of process, is a federal crime. Response Center are set forth in 42 U.S.C. § 9603(a), which states: It is also a federal crime to retaliate against a person who Any person in charge of a vessel or an offshore or has provided evidence in the government. an onshore facility shall, as soon as he has knowl- edge of any release (other than a federally permit- Careful attention should be paid to what is said to ted release) of a hazardous substance from such employees. Many prosecutors quickly assert that a sug- vessel or facility in quantities equal to or greater than those determined pursuant to section 102 of gestion to non-clients that they have a right “not to coop- this title, immediately notify the National Response erate” is tantamount to obstruction of justice. The crime Center established under the Clean Water Act [33 of obstruction is based on influence through “corrupt” USCS §§ 1251 et seq.] of such release. The National means. Nevertheless, target employees are entitled to Response Center shall convey the notification expe- ditiously to all appropriate Government agencies, counsel, and often need counsel to avoid unreasonable including the Governor of any affected State. burdens imposed by onerous grand jury subpoenas and 9. 42 U.S.C. § 11002(a) requires the EPA Administrator to publish a similar prosecutorial tactics.22

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 47 list of EHS; 40 C.F.R. § 355, App. A provides the list. The specific 19. See, e.g., New South Wales Protection of the Environment requirements for notification to local and state emergency Legislation Amendment Act 2011 (POELA Act) which requires planning bodies are set forth in 42 U.S.C. § 11004. the preparation and implementation of pollution incident * * * response management plans. Guidelines further set out specific requirements regarding the preparing, keeping, testing (b) Notification. and implementation of these plans. See New South Wales Environmental Protection Authority, Environmental Guidelines: (1) Recipients of notice. Notice required under sub- Preparation of Pollution Incident Response Management Plans section (a) shall be given immediately after the re- (2012), available at http://www.environment.nsw.gov.au/ lease by the owner or operator of a facility (by such resources/legislation/201200227egpreppirmp.pdf. means as telephone, radio, or in person) to the com- 20. Thus, coping with the emergency reflects the efforts that the munity emergency coordinator for the local emer- institution may have undertaken prior to emergency. Lawyers gency planning committees, if established pursuant can also assist in hazard mitigation through arranging for to section 11001(c) of this title, for any area likely to environmental hazard auditing. Such audits help identify gaps be affected by the release and to the State emergency in preparedness and identify measures that may be taken to planning commission of any State likely to be af- prevent the release of hazardous materials. The implementation fected by the release. With respect to transportation of pollution-prevention measures such as secondary containment of a substance subject to the requirements of this for the storage of hazardous materials may also be part of the section, or storage incident to such transportation, planning required by environmental permits. the notice requirements of this section with respect to a release shall be satisfied by dialing 911 or, in the 21. Perhaps one of the earliest decisions that the corporation has to absence of a 911 emergency telephone number, call- make is whether in-house counsel should conduct the internal ing the operator. investigation. House counsel usually have the advantage of knowing the corporation, while outside counsel have to master * * * a “learning curve” before starting their crucial investigation which the corporation will have to pay for in fees and delay. 10. EPA, CERCLA and EPCRA Continuous Release Reporting, Nevertheless, in situations where the triggering incident or http://www.epa.gov/epcra/cercla-and-epcra-continuous-release- the investigation is substantial, outside counsel have several reporting. advantages over inside or house counsel. Initially, the right 11. 42 U.S.C. § 11004(a)(3). outside counsel will have the specialized knowledge to deal with 12. 42 U.S.C. § 11004(b)(1); 42 U.S.C. § 9603(a). the investigation, and should be free of any conflicts arising from intra-company relationships, or prior advice. In-house counsel will 13. 42 U.S.C. § 11004(c). play a critical role in directing and facilitating outside counsel’s 14. 42 U.S.C. § 9609 and 42 U.S.C. § 11045 provide penalties of up to work. However, the presence of outside counsel sends a clear $75,000 for every day that a repeat violation continues. EPA has message that the corporation is taking the triggering incident increased these penalties to $117,500 per day, 40 CFR § 19.4. seriously. 15. See, e.g., New York State reporting requirements for releases of 22. Careful attention should also be paid to advice on the Fifth hazardous materials, 6 NYCRR § 597.4. Amendment. A lawyer’s good-faith advice that a client assert the Fifth Amendment privilege, of course, is proper. Maness v. Meyers, 16. 40 CFR § 112.1. 419 U.S. 449, 465-66 (1974). However, one who advises another to 17. 42 U.S.C. § 11002, 11003(d). invoke the privilege, even if its assertion is absolutely valid, may 18. See, e.g., North Carolina Stormwater General Permit No. commit a Section 1503 violation if the motivation is corruptly to NCG170000, at 6-9 (requiring preparation of Stormwater Pollution prevent the witness from disclosing information damaging to the Prevention Plan with Spill Prevention and Response Procedures); adviser or another. New York State General Construction Permit, No. GP-0-15-002, at 18-28 (requiring Preparation of Stormwater Pollution Prevention Daniel Riesel and Adam Stolorow, Sive, Paget & Plan documenting all controls put in place on site). Riesel, P.C., New York City.

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48 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 The Evolving “Nature” of Environmental Risk: A Responsible Approach for Residential and Commercial Real Estate By Frank Piccininni

Environmental losses suffered by commercial and A. Environmental Risks residential real estate owners are becoming more fre- The late 1960s and early 1970s gave rise to the U.S. quent and severe due to evolving regulatory regimes environmental movement, which was marked by the and the changing global climate. This article reviews the passage of fundamental environmental statutes such as nature of environmental risk, specifically within the con- the Comprehensive Environmental Response, Compensa- text of a changing climate, and proposes the large-scale tion, and Liability Act (CERCLA)11 and the Clean Water installation of green infrastructure as both a business op- Act (CWA).12 Increased regulation has created both the portunity for insurers and a responsible approach. beginnings of protecting our natural resources and the potential for major financial liabilities from environmen- I. INTRODUCTION tal contamination. These liabilities are routinely excluded Owners of commercial and residential real estate from commercial general liability insurance policies.13 face myriad hard-to-predict environmental risks such as To fill the coverage gap related to pollution exclusions, bodily injury due to asbestos exposure,1 mold contami- the insurance industry has manuscripted environmental nation,2 fuel spills,3 on- and off-site hazardous waste insurance policies, such as GREEN, to manage these risks disposal,4 and indoor air quality issues.5 These risks have for residential and commercial real estate owners. the potential to cause catastrophic financial losses and public relations disasters. Environmental losses are generally classified as ei- ther first-party or third-party losses.14 First-party losses To help mitigate exposures of commercial and resi- are those suffered by the insured, whereas third-party dential real estate owners, insurers have begun to de- losses include legal action arising out of bodily injury or velop comprehensive environmental coverage such as property damage to a third-party for which the insured the General Real Estate Environmental Enterprises Net is allegedly responsible.15 The two common policy forms (“GREEN”) Program.6 Despite the effectiveness of these available to cover environmental losses are cost cap and programs, insuring against environmental losses is likely pollution liability insurance.16 Cost cap policies insure to become increasingly complex due to the imminent im- against cost overruns associated with known liabilities pacts of climate change.7 such as implementing a remedial action plan.17 Pollution liability insurance insures against new environmental A recent report by the United Nations Intergovern- conditions such as newly discovered contamination.18 mental Panel on Climate Change presented multiple Environmental claims are relatively infrequent, but, when lines of empirical support for climate change, largely they occur, severe and catastrophic losses can result.19 due to anthropogenic activities.8 This evidence included warming ocean temperatures, rising sea levels, changing One environmental risk commonly faced by commer- ocean salinity, acidifying oceans, increasing frequency of cial and residential real estate owners is CERCLA liability. warm days, lessening frost days, decreasing snow cover CERCLA is a necessary way to manage and remediate in most regions, degrading permafrost, increasing heavy hazardous contamination and real public threat. Liability precipitation events, and retreating sea ice and glaciers.9 under CERCLA is strict, joint, and several20 and attaches The impact of climate change, coupled with increasingly to: 1) the current owner of the property contaminated stringent regulatory policy, will increase the frequency with hazardous waste; 2) the owner at the time of the re- and intensity of loss events. lease of hazardous waste; 3) any person who disposes of, or arranges for, the disposal of hazardous wastes; and 4) Furthermore, spatial and temporal variability of loss- any person who accepts hazardous substances for dispos- es, non-linear loss functions and single events with mul- al.21 The term hazardous substance is defined extremely tiple correlated consequences will increasingly occur.10 broadly under CERCLA,22 and includes many substances This article 1) reviews the emergence and role of environ- commonly used by residential or commercial real estate mental insurance; 2) explores the changing nature of risk owners. management for commercial and residential real estate owners in the face of the changing global climate, and The original defenses to liability under CERCLA, 3) suggests that insurers, as proactive risk managers, are which must be proven through a preponderance of the well-suited to lead by promoting adaptation to and miti- evidence, included claiming that the release was an act of gation of climate change by encouraging the installation God, an act of war, or an act or omission of a third party of green infrastructure. not the agent or employee of the potentially responsible

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 49 party.23 Subsequent amendments to CERCLA have al- sulting from exposure to lead paint36 and asbestos,37 as lowed purchasers of property to potentially qualify for well as losses incurred in connection with removal and the innocent landowner, bona fide potential purchaser, disposal of these materials. Furthermore, prior industrial or contiguous property owner defenses to liability if the use of the site or migrating irritants can leave buildings’ party conducts “all appropriate inquiries” before acquir- interiors at risk of vapor intrusion and indoor contamina- ing the property.24 Due, in part, to the deleterious conse- tion with hazardous wastes.38 Finally, biological agents, quences of hazardous waste on human and environmen- such as mold, can lead to catastrophic losses associated tal health, the defenses to CERCLA liability are difficult to with remediation and bodily injury.39 successfully prevail upon.25 Thus, many unknowing real estate owners are found to be potentially responsible par- GREEN coverage is a comprehensive environmen- ties, resulting in substantial and unforeseen financial loss. tal insurance policy offered on a “claims made” basis. For example, in New York v. Shore Realty Corp.,26 the court The coverage is designed to insure new environmental imposed liability on Shore Realty, despite the fact that the conditions that result in first- and third-party pollution past owners of the property actually caused the release of claims such as clean-up costs, associated property dam- hazardous waste. age, claims for bodily injury associated with pollution, and legal defense costs.40 In addition, coverage extends Access to clean water is critical to the survival of all to indoor contaminates such as mold and bodily injury life. Accordingly, the CWA highlights further potential claims related to installed and applied materials such as for residential and commercial real estate owners to fall lead paint and asbestos. GREEN also insures third-party subject to environmental risk.27 For example, Section 303 claims resulting from off-site disposal of hazardous mate- of the Act regulates the discharge of pollutants, including rials. Although GREEN is an innovative insurance cover- sediment, nitrogen, and phosphorus, into regulated water age that mitigates environmental exposure to residential bodies.28 These contaminants can impair local ecosystem and commercial real estate owners, climate change is structure and function, jeopardizing the health of lo- likely to impede the insurability of many environmental cal inhabitants. The Environmental Protection Agency risks.41 Fortunately, because of insurers’ financial capacity promulgates, or reviews state-promulgated, numerical or and ability to influence private individuals and corpora- narrative water quality standards that “tak[e] into con- tions more effectively than the public sector, they are in sideration their use and value for public water supplies, the position to act as proactive risk managers by endors- propagation of fish and wildlife, recreational purposes, ing or requiring sustainable practices and loss-prevention and also tak[e] into consideration their use and value for measures.42 Development of such measures requires navigation.”29 Accordingly, the federal or state adminis- an understanding of the risks correlated with climate trators require municipalities and industrial point source change.43 discharges to adopt best pollution control technologies and obtain a discharge permit through the National Pollu- B. Environmental Risks in a Changing Climate tion Discharge Elimination System to meet and maintain The changing climate has already begun to reveal water quality standards.30 To comply with federal or state vulnerability in natural and human systems, albeit with standards, municipalities often enact local ordinances, high amounts of spatial and temporal variability.44 Fur- such as stormwater management laws, that may result ther warming portends pervasive and irreversible effects in enforcement actions if compliance is not achieved.31 including more frequent and intense rainfall events such Although federal, state, and local anti-degradation juris- as hurricanes, associated flooding, drought, sea-level rise, prudence continues to evolve32 and enforcement is highly and heat waves. Climate risks to commercial and resi- site-specific, regulation of water pollution is a notable dential real estate owners extend well beyond the initial environmental risk facing commercial and residential real impact of these disasters; there are potential long-term estate owners. environmental liabilities resulting from the recovery, the reconstruction, and the resumption of habitation of Prior to the enactment of U.S. environmental law, pri- storm- and flood-impacted areas. vate citizens relied on common law causes of action such as private nuisance to combat pollution from neighboring Although not explicitly linked to climate change, Su- landowners.33 Liability in private nuisance suits is found perstorm Sandy is thought to be indicative of the frequent when the defendant intentionally causes a substantial and and extreme weather expected as our climate changes.45 unreasonable interference with the use and enjoyment The storm pummeled the New York metropolitan area of another’s land in a continuous or recurring manner.34 with wind gusts up to 90-100 mph, 14 feet of storm surge These causes of action remain today and represent a risk during high tide, and a deluge of rainfall exceeding 5 to residential and commercial real estate owners. inches in many places.46 The destructive force of the storm was apparent immediately—the storm damaged Significant costs and claims against real estate owners more than 375,000 housing units and caused an estimated can also result from installed and applied building ma- 47 35 $50 billion worth of damage. The true breadth of the terials, indoor air quality, and biological contaminates. damage, however, only began to emerge as the floodwa- Common examples of losses include bodily injury re- ters receded. Hazardous materials, swept from destroyed

50 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 homes and businesses, were deposited throughout the nuisance claims due to pollution from climate change im- environment; raw sewage from overwhelmed water treat- pacts. Although climate change effects on any given local- ment facilities stood in flooded homes; and mold began to ity are exceedingly hard to predict, it would be prudent proliferate within floodwater-affected structures.48 for both insurers and the insured to reduce exposures and increase resilience.59 As disasters such as Superstorm Sandy become more common, U.S. environmental regulatory policy and juris- C. Insurers as Proactive Risk Managers prudence will likely responsibly evolve to protect health Insurers have a long history of addressing root and safety. This, in turn, however, will create a number of causes of risk through proactive risk management—noted new environmental risks to commercial and residential examples include fostering the development of fire de- 49 real estate owners. For example, the way in which feder- partments, building codes, and auto safety testing pro- al and state governments remedy the release of hazardous tocols.60 Climate change presents the insurance industry wastes may become more stringent, reflecting the greater the opportunity to lead adaptation and mitigation efforts 50 risk of disturbance to contaminated sites. Under the cur- by promoting it to commercial and residential real estate rent regulatory regime, regulators often allow contamina- owners.61 Insurers can reward such efforts by reducing tion to be remediated through monitored natural recovery self-insured retentions, decreasing premiums, or increas-

“One climate loss prevention strategy that can be employed by residential and commercial real estate owners is the installation of green infrastructure.” or in-situ capping.51 Monitored natural recovery involves ing aggregate limits. This responsible approach represents utilizing natural processes to reduce the bioavailability of a business opportunity for insurance companies; insurers sediments; in-situ capping refers to the placement of clean and brokers can provide risk management advisory ser- material over contaminated sediments to prevent expo- vices and develop innovative loss mitigation products.62 sure and stabilize contaminates.52 Climate change is likely One climate loss prevention strategy that can be em- to decrease the efficacy of such measures, as erosion, ployed by residential and commercial real estate owners flooding, and high winds are more likely to affect those is the installation of green infrastructure.63 The definition sites.53 Accordingly, regulators are more increasingly of green infrastructure is somewhat amorphous. It has likely to require more elaborate remedies that ultimately been described broadly as an interconnected network create greater financial liability for the responsible parties. of green spaces that conserves ecosystem structure and Similarly, regulation under the CWA is likely to be- function amongst human land use.64 Green infrastructure come more stringent in order to deal with the impacts of includes blue roofs,65 green roofs,66 rain gardens or plant- climate change. Climate change is expected to contribute er boxes,67 bioswales,68 and permeable pavement.69 The to the degradation of waters by increasing stormwater large-scale development of networks of green infrastruc- runoff and altering temperatures and rainfall patterns.54 ture will boost the resilience of the built environment—a In addition, climate change is expected to alter the com- critical first step in preparing for the imminent threat of position, diversity, and stability of aquatic biological com- climate change (Table 1).70 munities.55 These effects of climate change will exacerbate In addition to engineered green infrastructure, resi- other anthropogenic impacts on waters such as Combined dential and commercial real estate owners can restore Sewer Overflows56 and nonpoint pollution.57 Currently, native ecosystems on portions of their parcels where Section 208 of the CWA provides financial incentives for possible.71 Restoration will enable habitats to respond polluters to adopt best management practices that reduce to change by increasing ecological resistance and resil- stormwater runoff and nonpoint pollution, but does ience.72 Native forests help to buffer storm waters; lower not penalize those that decline to do so.58 In the future, the water table, which decreases the likelihood of flood- regulation of point sources will likely be insufficient for ing; and act as a mechanical filter to trap pollutants and maintaining quality standards, and command and con- particulate matter.73 As our climate continues to warm, trol regulation of nonpoint sources will likely be enacted. the energy demand for indoor cooling is projected to in- Commercial and residential real estate owners will, there- crease.74 Native forests can help to reduce this demand, fore, be subject to an ever- increasing degree of liability and ultimately energy consumption, by moderating the associated with the CWA. maximum surface temperatures and the urban heat island In addition to evolving regulatory regimes, com- effect (Table 1).75 Finally, planting trees, shrubs and herba- mercial and residential real estate owners may face envi- ceous flora would provide the invaluable ecosystem ser- ronmental liability from private and public common law vice of carbon sequestration to mitigate climate change.76

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 51 Intensive Human Land Moderately Developed Complex Networks Use with Little Green Networks of Green of Green Infrastructure Infrastructure Infrastructure

Community Energetics

Energy Demand for Cooling High Medium-High Low

Vulnerability of Energy In- High Medium-High Low frastructure

Urban Heat Island Effect High Medium Low

Community Structure and Function

Air Quality Low Medium High

Water Pollution, Storm High Medium-Low Low water Runoff, Erosion Resistance and Resilience Low Medium-High High to Flooding

Aquifer Recharge Low Medium High

Electric and Magnetic Field Low Medium-Low High Shielding

Noise reduction Low Medium High

Overall Homeostasis

Stability (resistance to Low Medium-High High external perturbations) Human Health and Low Medium High Well-being Environmental Awareness Low High High and Prosocial Behavior Table 1. A hypothesized tabular model of the succession of anthropogenic ecosystem factors varying along a spatiotemporal gradient of green infrastructure network complexity. This tabular model is based on Eugene Odum’s famous tabular model of ecological succession. See Eugene P. Odum, The Strategy of Ecosystem Development, 164 Sci. 262, 265 (1969). The steepness of each gradient is likely to increase as the Earth’s climate continues to warm. Note that natural or human disturbances are likely to reset the successional processes.

Green infrastructure provides redundancy and modu- D. Conclusion larization of ecosystem services, which helps to defuse U.S. environmental law is critical for the maintenance 77 risk throughout the built environment. In this way, real and protection of innocent life, including our own. Yet it estate owners have to rely less on centralized infrastruc- also creates significant liability for residential and com- ture (e.g., wastewater treatment facilities), which are mercial real estate owners, which is likely to be exacer- 78 relatively vulnerable to failure. Moreover, the benefits bated by the impacts of climate change. Fortunately, the of green infrastructure (Table 1) are likely to reduce en- insurance industry is poised to provide leadership in vironmental losses associated with regulatory liabilities promoting adaptation to and mitigation of climate risk.80 and common law lawsuits. Finally, and perhaps most It is, therefore, incumbent upon insurers to rise to the importantly, the installation of complex networks of green challenge of developing novel and innovative products infrastructure will increase environmental awareness, designed to cope with the evolving “nature” of environ- thereby promoting a responsible stewardship approach to mental risk. real estate.79

52 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 Endnotes 21. 42 U.S.C. § 9607(a). 1. See, e.g., Kosich v. Metro. Prop. & Cas. Ins. Co., 626 N.Y.S.2d 618, 22. 42 U.S.C. § 9601(14). 618 (4th Dep’t 1995) (affirming the finding that “plaintiffs’ losses 23. 42 U.S.C. § 9607(b). were caused by asbestos contamination, coverage for which [wa]s specifically excluded under the insurance policy issued 24. 42 U.S.C. § 9601(35) (innocent landowner defense); Id. at by defendant.”). § 9601(40) (bonafide potential purchaser); Id. at § 9607(q) (contiguous property owner). The guidelines for conducting all 2. See, e.g., American Western Home Ins. Co. v. Utopia Acquisition appropriate inquires are governed by regulation and require, inter L.P., 2009 WL 792483 (W.D. Mo. 2009) (finding that mold alia, interviews with current and past owners, a record search for contamination in an apartment building was not covered by a cleanup liens, and searches of government databases. 40 C.F.R. § commercial general liability policy). 312. 3. Watson v. Travelers Indem, Co., 2005 WL 839504 (Mich. Ct. App. 25. See Jeffrey M. Moss, Impact of CERCLA on Real Estate Transactions: 2005) (holding that diesel fuel, accidentally spilled during What Every Owner, Operator, Buyer, Lender,…Should Know, 6 a roofing project, was a pollutant that was excluded from a B.Y.U. J. of Public L. 365, 375 (1992) (noting that courts typically commercial general liability insurance policy). construe the provisions of CERCLA liberally). 4. See, e.g., Vermont Mut. Ins. Co. v. Parsons Hill P’Ship, 1 A.3d 26. 759 F.2d 1032, 1043–44 (2d Cir. 1985). 1016 (Vt. 2010) (unsafe levels of Perchloroethylene (PCE) in an apartment complex’s water system was outside the scope of a 27. 33 U.S.C. §§1251 et seq. comprehensive liability insurance policy). 28. 33 U.S.C. § 1313. 5. See, e.g., Clipper Mill Fed., LLC v. Cincinnati Ins. Co., 2010 U.S. Dist. 29. 33 U.S.C. § 1313 (c)(2); see also Pronsolino v. Nastri, 291 F.3d 1123 LEXIS 112172 (D. Md. 2010) (ruling that the “plain terms” of the (9th Cir. 2002) (upholding the Environmental Protection Agency’s pollution exclusion would be enforced in connection with the authority to force states to set water quality standards sufficient indoor airborne contaminants that resulted from a faulty HVAC to protect the designated use even if pollution originated entirely system). from non-point pollution). 6. See, e.g., Environmental Services, SterlingRisk Insurance, available 30. 33 U.S.C. § 1342. States that assume the authority to administer at http://www.sterlingrisk.com/business-insurance/specialties- the CWA enact similar state level permitting regimes. See, e.g, N.Y. by-industry/environmental-services/green/ (last visited Aug. 26, Envtl. Conserv. Law § 17-0808. 2016). 31. See, e.g., Roslyn, N.Y., Code §400 (setting forth stormwater 7. See Sean B. Hecht, Insurance, in The Law Of Adaptation To management and erosion control measures). Climate Change, U.S. And International Aspects 514–15 32. See Sandi Zellmer & Robert L. Glicksman, Improving Water Quality (Michael B Gerrard & Katrina F. Kuh, eds., 2012) (describing the Antidegradation Policies, 4 J. of Energy and ENVTL. Law 1, 1 challenges that climate change poses for predicting risks and (2013) (recommending various reforms to antidegradation policy setting appropriate premiums). in order to “. . . provid[e] a margin of safety, protect[] high-value 8. Int’l Governmental Panel on Climate Change, Climate natural resources, prevent[] the development of pollution havens, Change 2013: The Physical Science Basis, http://www. and balance[e] environmental goals and economic growth climatechange2013.org/images/report/WG1AR5_ALL_FINAL. opportunities”). pdf. 33. See, e.g., Madison v. Ducktown Sulphur, Copper & Iron Co., 83 S.W. 9. Id. 658, 664 (1904) (finding that damages are properly granted against 10. Evan Mills, Insurance in a Climate of Change, 309 Sci. 1040, 1040 a copper smelting plant where injury is proven). (2005). 34. Berenger v. 261 W. LLC, 93 A.D.3d 175, 182 (1st Dep’t 2012). 11. 42 U.S.C. §§ 9601 et seq. 35. Catherine E. Bostock, Environmental Liabilities of Property Owners: 12. 33 U.S.C §§ 1251 et seq.; see also Jonathan H. Alder, Fables of the Examples of Common Risks and Strategies to Anticipate and Avoid Cuyahoga: Reconstructing a History of Environmental Protection,14 Them, 26 Envtl. Claims J. 27, 32–35 (2014). Fordham Environmental L.J. 89 (describing joint state and 36. See Chrstine L. Hansen, Lead Astray and Back Again: Alternative federal efforts to respond to a “clean water crisis”). Solutions to the Lead Paint Poisoning Problem in Wisconsin’s Rental 13. T. McRoy Shelly, III, Insurance Coverage for Environmental Claims: Housing, 2000 Wis. L. Rev. 1073, 1073 (2000) (noting the prevalence Current Litigation Issues in the United States, 26 Envtl. Claims J. 4, of lead paint poisoning and its severe effects on young victims). 4–5 (2014). 37. See James A. Henderson Jr. & Aaron Twerski, Asbestos Litigation 14. Rodney J. Taylor & Howard M. Tollin, Insurance Market for Global Gone Mad: Exposure-Based Recover for Increased Risk, Mental Distress Warming Heats up: Old Products and New Policies Respond to Climate and Medical Monitoring, 58 South Carolina L. Rev. 816 (2002) Change Risks, 21 Envtl. Claims J. 247, 249–50 (2009). (calling asbestos litigation “a blight on the American judicial system”). 15. Id. 38. See Chuck Wah Francis Yu & Jeong Tai Kim, Building Pathology, 16. Howard M. Tollin, Environmental Insurance for a New Wave of Investigation of Sick Buildings—VOC Emissions, 19 Indoor Built Claims, 16 Envtl. Claims J. 203, 210–11 (2004). Env’t 40 (2010) (reviewing some of the causes of indoor air 17. Id. quality issues). 18. Id. 39. Thelma Jarman-Felstiner, Mold Is Gold: But Will It Be the Next Asbestos? 30 Pepp. L. Rev. (2002). 19. Howard M. Tollin & Boris F. Strogach, Defining “Pollutant”: What You Don’t Know Can Hurt You, 21 Envtl. Claims J. 156, 157 (2009). 40. GREEN does not automatically cover underground storage tanks, or the abatement of lead or asbestos. Underground storage tanks 20. Notably, the terms “strict, joint, and several” are not referenced that are not too old can, however, be added to the policy, although in CERCLA, but have been routinely applied by the judiciary the premium will be adjusted to reflect the increased risk. in CERCLA litigation. See, e.g., Burlington Northern & Santa Fe Railway Co. v. United States 129 S. Ct. 1870, 1882–83 (2009) (“… 41. Cf. Evan Mills, Synergisms Between Climate Change Mitigation conclud[ing] that the facts contained in the record reasonably and Adaptation: An Insurance Perspective, 12 Mitigation and supported the apportionment of liability.”). Adaptation Strategies for Global Change 809–10 (2007).

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 53 42. Id. and intensity of such overflow events. See Annette Semadeni- et al. The Impacts of Climate Change and Urbanisation on 43. See Mills, supra note 10, at 1043 (“Insurance is a form of adaptive Davies , Drainage in Helsingborg, Sweden: Combined Sewer System J. of capacity for the impacts of climate change, although the sector , 350 Hydrology 100, 100 (2008). itself must adapt in order to remain viable. It is incumbent on insurers, their regulators, and the policy community to develop a 57. J.S. Baron et al., The Interactive Effects of Excess Reactive Nitrogen better grasp of the physical and business risks.”). and Climate Change on Aquatic Ecosystems and Water Resources of the United States Biogeochemistry 7 44. See Int’l Governmental Panel on Climate Change, supra note 8, , 114 1 (2013). at 7. 58. Natural Resources Defense Council v. USEPA, 915 F.2d 1314, 1317 45. See Kim Knowlton et al., Post-Sandy Preparedness Policies Lag (9th Circ. 1990). as Sea Levels Rise, 121 Envtl. Health Prospectives 208 (2013) 59. Cf. Mark E. Keim, Building Human Resilience: The Role of Public (finding that lessons learned from the impacts of Sandy should be Health Preparedness and Response as an Adaptation to Climate Change, translated into adaptive policies). 35 American J. of Preventive Medicine 508, 508 (2008). 46. Jeffry B. Halverson & Thomas Rabenhorst, Hurricane Sandy: The 60. Mills, supra note 10, at 1043. Science and Impacts of a Superstorm Weatherwise , 66 14 (2013). 61. See id. (noting that public-private partnerships for adaptation and 47. John Manuel, The Long Road to Recovery: Environmental Health mitigation are essential for spreading risk and developing loss Impacts of Sandy,121 Envtl. Health Prospectives 152 (2013). mitigation strategies). 48. Id. 62. Id. 49. See, e.g., Keneth T. Kristl, Diminishing the Divine: Climate Change 63. See S.E. Gill et al., Adapting Cities for Climate Change: The Role of the and the Act of God Defense, 15 Widener L. Rev. 325 (2010) (finding Green Infrastructure, 33 Built Env’t 115 (2007). that the Act of God defense in tort, admiralty, and environmental 64. Mark A. Benedict and Edward T. McMahon, Green Infrastructure: law will lose significance as the risk of climate change-related Smart Conservation for the 21st Century, 20 Renewable Resources J. weather becomes more foreseeable). 12, 12 (2002). Climate Change and CERCLA Remedies: Adaptation 50. Katrina F. Kuh, 65. Non-vegetated roofing materials that retains and gradually Strategies for Contaminated Sediment Sites Seattle J. of Envtl. L. , 2 releases runoff. As a co-benefit, blue roofs provide the sustainable 61 (2012). benefit of reducing heating costs. See Blue Roof and Green Roof, 51. Envtl. Prot. Agency, Contaminated Sediment Remediation NYC Department of Environmental Protection, http://www.nyc. Guidance for Hazardous Waste Sites (Dec. 2005). gov/html/dep/html/stormwater/green_pilot_project_ps118. 52. Id. at iii-iv. shtml http://water.epa.gov/infrastructure/greeninfrastructure/ gi_what.cfm (last visited, Aug. 25, 2014). 53. Katrina F. Kuh, supra note 50, at 71-75. 66. Roofs covered with growing media and vegetation designed to 54. Margaret A. Palmer et al., Climate Change and River Ecosystems: retain runoff. Green roofs also provide myriad co-benefits such as Protection and Adaptation Options, 44 Envtl. Mgmt. 1053 (2009). reducing noise pollution and cooling cost, increasing air quality, 55. Id. and providing wildlife habitat. Id. 56. Combined Sewers collect stormwater, industrial wastewater, 67. Shallow, vegetated basins designed to collect water from rooftops. and residential wastewater in one pipe and typically direct What is Green Infrastructure, U.S. Environmental Protection water to a wastewater treatment facility for treatment and Agency, available at http://water.epa.gov/infrastructure/ eventual discharge. During major storm events, however, runoff greeninfrastructure/gi_what.cfm. Id. overwhelms the capacity of the system, causing the discharge of 68. A vegetated channel designed to move water while promoting untreated wastewater directly into a water body. See Maria R.C. bioretention of runoff, nutrients, and other types of pollution. Id. De Sousa et al., Using Life Cycle Assessment to Evaluate Green and Grey Combined Sewer Overflow Control Strategies, 16 J. of Industrial 69. Porous pavement allows for infiltration of water, thereby Id. Ecology 901, 901 (2012) (describing combined sewer overflows reducing overland flow and runoff. as a “public health and environmental liability”). Researchers 70. See S.E. Gill, supra note 63; see also The Executive Office of the anticipate that climate change is likely to increase the frequency President, The President’s Climate Action Plan, 13 available

Update on Hazardous Waste and Site Remediation 10 a.m. to 3:15 p.m. November 15, 2016 The lunch speaker, Christopher Goeken, the Director of Public Policy State Bar Center & Government Relations for the New York League of Conservation Albany, New York 12207 Voters, will discuss the impact of the 2016 elections on federal and (Registration begins at 9:15 a.m.) state environmental agendas. This program will provide comprehensive updates on a wide variety The afternoon panel discussion will inlclude attorneys and experi- of hazardous waste and site remediation issues, on both the federal enced technical professionals, exploring the emerging issue of PFOA and state level. The morning panels will focus on key issues in fed- in drinking water. The program will close with a session on the chal- eral Superfund jurisprudence (including arranger liability, divisibility, lenging issue of conflicts of interest at Superfund sites. statutes of limitation, 106 vs. 107 actions and US EPA vs. state settlements); and under state hazardous waste statutes (including The program will provide 3.5 continuing legal education credit Title 13 revisions, soil vapor and the revisions to the brownfields hours, consistinng of 3.0 credit hours in professional practice and .5 program). credit hours in ethics. Topics include: CLA Update | NYS DEC Update | PFOA in Municipal and Individual Water Supplies | Ethics

54 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 at http://www.whitehouse.gov/sites/default/files/image/ 76. See Kathryn R. Kirby & Catherine Potvin, Variation in Carbon president27sclimateactionplan.pdf (outlining the importance Storage Among Tree Species: Implications for the Management of a of building “stronger and safer communities” to deal with the Small-Scale Carbon Sink Project, 246 Forest Ecology and Mgmt. exigencies of climate change). 208, 214 (2007). 71. See Constance I. Millar et al., Climate Change and Forests of the 77. Jack Ahern, From Fail-Safe to Safe-to-Fail: Sustainability and Future: Managing in the Face of Uncertainty, 17 Ecological Resilience in the New Urban World, 100 Landscape & Urban Applications 2145, 2147–2149 (2007) (discussing a need for Planning 341, 342–43 (2011). A New adaptive forest management); James P. Collins et al., 78. Id. Urban Ecology: Modeling Human Communities as Integral Parts of Ecosystems Poses Special Problems for the Development and Testing 79. Cf. R. Edward Grumbine, What is Ecosystem Management?, 8 of Ecological Theory, 88 American Scientist 416, 424 (2000) Conservation Biology 27 (1994) (“Ecosystem management is (discussing how standard ecological theory such as successional not just about science nor is it simply an extension of traditional dynamics can be applied to human dominated ecosystems); Mark resource management; it offers a fundamental reframing J. McDonnell and Steward T.A. Pickett, Ecosystem Structure and of how humans may work with nature.”); David S. Wilson, Function Along Urban-Rural Gradient: An Unexploited Opportunity Human Prosociality from an Evolutionary Perspective: Variation and for Ecology, 71 Ecology 1232 (1990) (“Urbanization is a massive, Correlations at a City-Wide Scale, 30 Evolution & Human Behavior unplanned experiment that already affects large acreages and is 190 (using field observations of prosocial behavior, multivariate spreading in many areas of the United States.”). analysis, and spatial interpolation to demonstrate that prosocial behavior is correlated with neighborhood social support). 72. Constance I. Millar et al., Climate Change and Forests of the Future: Managing in the Face of Uncertainty, 17 Ecological Applications 80. Sean B. Hecht, Climate Change and the Transformation of Risk: 2145, 2147–49 (2007). Insurance Matters, 55 UCLA L. Rev. 1559, 1618 (2008). 73. See Frank Piccininni, Adaptation to Climate Change and the Everglades Ecosystem. 26 Envtl. Claims J. 63, 80–82 (2014) Frank Piccininni is an Account Executive and Senior (discussing the stabilizing affect of native vegetation in a dynamic Attorney at SterlingRisk Insurance as well as a Partner ecosystem). and co-founder of SMPIL Consulting, Ltd. He co-chairs 74. Danny H.W. Li et al., Impact of Climate Change on Energy Use in the the Environmental Law Section’s Membership Commit- Built Environment in Different Climate Zones—A review, 42 Energy 103, 103 (2012). tee. Address correspondence to Frank Piccininni, Ster- 75. See S.E. Gill, supra note 63, at 11–24 (modeling the effects of ‘green lingRisk, 135 Crossways Park Dr., Suite 300, P.O. Box cover’ on surface temperatures under projected climate change 9017, 11797. E-mail: [email protected]. scenarios).

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NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 55 Fractured: Cracks in the Hydraulic Fracturing Regulatory Structure By Ahmed Javaid

The acquisition of energy resources is a necessity This article will examine the progression of fracking to power the nation, fuel its economy, and support its in the United States within the last decade. Part I will people. The introduction of hydraulic fracturing has cre- discuss the actual process of hydraulic fracturing. This ated an energy boom in North America, revolutionizing section will provide background information on how oil the supply and demand of energy for the country. This and natural gas are extracted from shale. In Part II, the article explores the fundamentals of the hydraulic fractur- economic impact and significance of this energy boom ing process, the economic benefits, and the corresponding will be analyzed. In particular, the influence on American environmental impact of the practice. Furthermore, the energy independence, growth, and security will be con- article discusses the regulation of fracking on a local and sidered. On the other hand, environmental issues associ- federal level and offers a practical, balanced approach ated with fracking will be explored in Part III. Part IV will to limit the adverse environmental impacts of hydraulic discuss how current fracking regulations operate on the fracturing while retaining its economic advantages. federal and the state or local level. Trends in federal frack- ing regulations will be examined as well as efforts across Introduction states where fracking has become a major issue. Finally, Today, the United States produces more natural the last section will offer guidance on how the burgeon- gas than any other nation in the world.1 The process re- ing industry can be effectively regulated. It will provide a sponsible for this transformation is known as hydraulic rationale for creating a comprehensive federal regulatory fracturing or “fracking.” Fracking is a technique through system for hydraulic fracturing rather than having state which oil and natural gas can be extracted from shale by and local authorities struggle with the enormous task. It horizontal drilling, the injection of water, and chemicals.2 appears that fracking is here to stay for the foreseeable fu- Shale can be found throughout the country ranging from ture. Therefore, it is important for industry, environmen- California, to the Marcellus formation in Pennsylvania talists, and everyone in between to not only understand and New York, the Bakken shale in North Dakota, and the this heavily debated practice, but proceed with the most Barnett shale in Texas.3 reasonable means of policing it. The analysis that follows is not intended to advocate for the prohibition of fracking, Hydraulic fracturing was lightly used during the but rather aims to understand the current legal challenges 1940s but fracking in its current large-scale form really with regulation and to propose a more balanced regula- started in 2006 and has not looked back since.4 There tory strategy. has been an incredible revolution in American oil and gas production. Natural gas production is projected to I. “Fracking” increase from about 20 trillion cubic feet to over 30 tril- lion cubic feet in the next couple of decades.5 Our current Before the advent of horizontal drilling, companies used to drill straight down into the ground to extract way of life depends on the consumption of fossil fuels. 9 Yet, there is a price to pay for this lifestyle because of the fossil fuels beneath the well. Using this method, once the oil or natural gas in the limited space was tapped, environmental impacts of these energy sources. Our need 10 continues to increase with fossil fuel demands expected to the operation would have to move on to the next well. grow at approximately five percent through 2035.6 With the use of horizontal drilling, companies had access to a much larger extraction range.11 The greater access The regulation of the industry, however, is still in de- is achieved through a single vertical well connected to velopment. Fracking has many adversaries vehemently many horizontal channels.12 Fracking has become the opposed to the practice. These groups are concerned phenomenon it is today because of the natural gas de- about the environmental harms associated with fracking posits available in shale. Shales are sedimentary rocks and its potential detraction from the growth of renewable containing petroleum and natural gas.13 Hydraulic energy sources. Hydraulic fracturing has led to serious fracturing is useful for drilling in shale because the rock debates about harmful chemicals, air emissions, and toxic consists of tight formations.14 Tight formations make it waste. For the most part, regulation has taken place on a difficult for oil or gas to flow through vertical wells, but state and local level.7 The federal government has chosen horizontal wells are more functional.15 Once a vertical not to implement a comprehensive national regulatory hole is created, steel pipes are installed into the ground.16 scheme covering all major aspects of hydraulic fractur- Cement is pumped between the pipes and the well. The ing. Instead, there have been gradual, but incomplete, steel pipes are surrounded with cement so that natural developments towards understanding and regulating the gas and other materials are trapped.17 A perforating gun practice on a federal level.8 is used to create tiny holes to allow fracking fluid to enter the shale rock formation and allow natural gas to enter

56 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 the pipeline.18 Water, sand, and chemical additives are sources will be critical for the foreseeable future. Projec- pumped into the pipes.19 Sand is added to the water to tions indicate that oil and gas dependence will actually make sure the cracks in the rock stay open for the natural rise in the coming years as the population continues to gas.20 Chemical additives are added, acids are used to grow.40 remove debris, and biocides are used to combat bacteria.21 The chemicals tend to vary from innocuous substances The oil and natural gas extracted from hydraulic to benzene, methanol, and diesel fuel.22 Using extremely fracturing methods not only provides the energy needed high pressure, the mixture is forced into the ground.23 to power the nation, but it also avoids reliance on vola- tile external sources. Reliance on domestic resources has Once cracks appear, fluid rushes back to the opening of 41 the well.24 This fluid, called flowback, has to be removed vastly diminished dependence on imports. Moreover, before the natural gas can be extracted from the well.25 approximately a fifth of the oil that is still being imported is coming from Canada’s oil sands.42 Canada has become Companies may recycle the fluid by storing it in open pits 43 or removing it into injection wells.26 the leading oil exporter to the United States. Our neigh- bors to the north have undergone their own hydraulic Hydraulic fracturing has spread throughout the fracturing revolution in Alberta, utilizing the same frack- nation. More than a million wells have been hydrauli- ing techniques. Compared to the other foreign sources, cally fractured in America.27 At the start of the twenty Canada is a preferable energy partner. The other top for- first century, natural gas from shale accounted for about eign oil and natural gas exporters are Saudi Arabia, Rus- two percent of domestic natural gas.28 Now, natural gas sia, Iran, the United Arab Emirates, Iraq, and Nigeria.44 from shale represents more than a quarter of our domes- Many of these governments are opposed to American tic natural gas.29 Pennsylvania has the second biggest foreign policy and interests. The connection between ter- natural gas deposits on the planet.30 North America is rorism funding and certain OPEC (Organization of the estimated to contain about one thousand trillion cubic Petroleum Exporting Countries) countries has been well feet of natural gas within shale.31 President Obama in established.45 Unlike Saudi Arabia and the other OPEC a State of the Union Address announced that hydraulic nations, Canada is a stable and democratic nation. With fracturing could produce a century’s worth of natural Canadian sources and the incredible amount of domestic gas.32 Aside from natural gas, oil has been found in shale production, America has been able to create a greater rock as well.33 The amount of oil extracted from shale has level of energy independence and stability that was un- increased twenty times just within the last decade.34 In imaginable a few years ago. 2008, North Dakota essentially produced almost no oil, but now with the Bakken Shale it ranks second behind A domestic supply of energy has also helped produce 35 economic growth. The fuels obtained from fracking will only Texas in oil production. Hydraulic fracturing has 46 spread rapidly and transformed the American energy sec- generate over five trillion dollars by 2035. By 2012, the tor completely. fracking industry was responsible for over two million jobs and over three million are estimated by 2020.47 In the II. Feeding the Beast Bakken shale in North Dakota, the energy explosion has led to the smallest unemployment rate in the country.48 It is important to put any analysis of fracking in the Pennsylvania has seen a stark increase in jobs in areas context of modern day energy use and requirements. where there are fracking wells, as opposed to declines in There needs to be a balancing of these important factors others.49 The economic benefits go beyond just the states with any type of energy source. America is highly reli- where the drilling takes place. Supply chains lead to jobs ant on fossil fuel consumption. As a nation, we use fossil and economic growth throughout the country.50 fuels for about 85% of our entire energy demand.36 Ad- ditionally, fossil fuels provide almost all the energy for These benefits also have a tangible impact on con- transportation and account for approximately two-thirds sumers. With the increase in the natural gas supply, the of our electricity production.37 price of the fuel has rapidly decreased by half.51 Natural gas is up to eight times more expensive in Europe.52 Gas The history of fossil fuels provides some valuable bills have decreased by thirteen billion dollars a year from insight into understanding why fracking has been so in- 2007 to 2013 because of fracking.53 U.S. consumers save fluential. American oil and gas were expected to peak and up to a thousand dollars per year because of the lower then begin a decline in the 1970s, as predicted in “Hub- prices for heating and electricity.54 The impact on trans- bert’s Peak” by geologist M. King Hubbert.38 That is why portation is substantial as the sector represents a third of fracking has been classified as an energy revolution. It has our energy use.55 More cities and towns are purchasing stimulated what was long thought to be a region tapped natural gas buses and trucks.56 There have been more out of oil and gas. Renewables continue to make progress electric cars introduced in the marketplace, which can be and have increased their role in energy production. Yet, charged with electricity produced by cheaper natural gas. solar, and wind power is just not practical in many parts of the United States. Even in places where it does make On a much broader scale, the 2012 deficit was ap- sense, the transfer to renewables demands large-scale proximately $695 billion, almost half of which was due changes that are not currently achievable.39 Fossil fuel to imported oil.57 Studies show fracking will help reduce

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 57 the deficit by a third within the next few years.58 The the actual drilling operations. Sometimes the water has to domestic oil and natural gas supply will contribute more be transported in from other parts of the state because the than four hundred billion dollars to the gross domestic communities have allocated most of their supply, forcing product by the end of this decade.59 Tax revenue gained companies to tap into even more resources. has been substantial with over one hundred billion dol- lars expected by 2020. Consequently, the transformation Beyond water usage, there are environmental con- of American energy policy is remarkable. It is likely that cerns regarding the contamination of water resources. the United States will be almost completely energy in- Fracking fluids can leak into the groundwater near the dependent in 2035, with essentially all of its needs met wells and harm the communities dependent on the sup- through domestic production.60 The economic advantages ply. The chemicals can also contaminate water supplies if of energy independence due to hydraulic fracturing pro- a spill occurs near the wells. A prominent study conducted vide America with freedom, autonomy, and strength as by Duke University examined fracking wells in Pennsyl- vania. The study found methane leaked from hydraulic it moves forward in the 21st century. These benefits have 67 to be seriously considered in any reasonable assessment fracking operations into the municipal drinking water. The levels of methane were almost twenty times greater of the regulatory structure and environmental issues con- 68 cerning the industry. compared to drinking water not linked to fracking wells.

“The EPA has estimated the water used in about thirty thousand fracking wells is equal to the amount used by five million people in a year.”

III. Environmental Issues The House Committee on Energy and Commerce has examined the types of chemicals used in the fracking pro- Fracking has certainly painted a terrific economic cess. The data compiled included chemicals considered picture, which has led to many supporters and advocates. carcinogens, harmful substances according to the Safe Yet, the environmental issues concerning the practice Drinking Water Act, and air pollutants as defined by the have sparked heated debates. There are legitimate con- Clean Air Act.69 Some of the most common toxic chemi- cerns about fracking wells and their impact on surround- cals used in fracking are methanol, ethylene glycol, diesel ing communities. The process itself is technically complex fuel, and naphthalene.70 The House Committee on Energy and raises many questions about short-term and long- and Commerce also found millions of gallons of diesel terms effects. Hydraulic fracturing is only possible with fuel were used by companies.71 According to the EPA, massive amounts of water. For most fracking operations, diesel fuel poses a major risk of water contamination.72 up to eight million gallons of water can be used to extract Diesel is dangerous because it is composed of carcinogens oil or natural gas.61 The EPA has estimated the water used such as BTEX compounds.73 To prevent such contamina- in about thirty thousand fracking wells is equal to the tion, drillers install steel casings enclosed with cement.74 amount used by five million people in a year.62 Almost Yet, the cement layer can develop defects allowing chemi- all of the water supplies used for drilling are composed cals to seep out.75 of groundwater.63 Therefore, there are serious issues con- cerning the heavy use of water resources in areas where Storage problems can also cause contamination is- fracking has become prevalent. Many of the regions con- sues. The fracking fluids that return to the surface are taining shale oil and gas do not have the type of water known as flowback. These fluids tend to be stored near resources demanded by the fracking industry. They tend the wells so they may be used again later.76 Companies to be rural and not accustomed to the industrial manner dig pits near the fracking wells to hold these fluids while in which water is used for drilling purposes. These areas the project is ongoing. The pits do not always have the may also lack the infrastructure to handle the consump- proper lining, which provides another way for chemicals tion of water at this scale. The environmental issues are to leak into the groundwater.77 Storing fracking fluids more severe in places where water is already a severely in nearby pits also increases the risk for evaporation of constrained resource.64 In many of the western states, volatile organic compounds (VOCs). The VOCs can have water supplies are confined by a limited supply, little pre- a harmful impact on air quality, cause cancer, asthma, and cipitation, drought, and existing outsized demands. These nausea.78 Air pollution stemming from fracking includes problems exist in states like Colorado, where regions are not just VOCs but also methane. Researchers at Cornell extremely dry and water resources are overused by agri- University found that methane released from fracking cultural lands and urban centers.65 In fact, about 97% of fluids was so damaging it could be worse than other Colorado fracking wells are located in places where the forms of fossil fuel extraction.79 Even when the fluids ground and surface water are severely limited.66 There are are removed from the area, they are transported away also issues with the availability of water in proximity to through many rural and residential communities. Spills

58 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 or disasters in these areas can be devastating with many IV. Regulating the Revolution irreversible effects. Companies may transport the water A. Federal Regulation and fluids to water treatment centers but these locations are not always capable of handling the chemicals used in The federal government has not introduced a com- fracking.80 plete program to regulate the fracking process. Existing laws have many exceptions and loopholes for hydraulic Radiation problems can also be caused by hydraulic fracturing activities. Additionally, the few federal regula- fracturing activity. Hydraulic fracturing involves drill- tions concerning certain aspects of fracking do not ad- ing into naturally occurring radioactive materials called equately address the major issues. Hydraulic fracturing is NORMs. Fracking can force these radioactive materials currently excluded from regulation under the Safe Drink- up into the atmosphere.81 Pennsylvania fracking wells ing Water Act (SDWA). The SDWA was enacted in 1974 to have been linked to radioactive material found in nearby protect public drinking water sources.93 According to Sec- drinking water.82 Companies in the area transported tion C of the Act, the EPA has to administer regulations fracking fluid to sewage treatment plants.83 The plants through State Underground Injection Control (UIC) pro- could not adequately process the fluids to remove the grams.94 Section 1421 of the SDWA defines underground radioactive material.84 The radioactive material moved injection as the subsurface placement of fluids by well into the surface water and ended up in the drinking water injection.95 Wells are classified into different categories supply.85 Contamination from radiation presents a grave under the SDWA. Oil and gas extraction is usually clas- danger to surrounding communities and can cause dev- sified under Class II injection wells, which are regulated astating long term damages. Contamination is an issue under the Act.96 However, the EPA has not classified wells because of the chemical disclosure laws applicable to the used for hydraulic fracturing as Class II underground fracking industry. Companies are not always obligated injection wells, which has exempted them from regula- to disclose which chemicals they are using in their wells. tion under the statute. Instead, the EPA has claimed the This lack of transparency arises because the chemicals main purpose of these fracking wells is not underground may be categorized as trade secrets.86 The problem can injection so they do not fall into this category. The EPA be exacerbated because of the complex supply chains in- has pointed to the endangerment clause in section 1421(b) volved with the chemicals used in hydraulic fracturing. It (2), which requires that regulations must be promulgated is not easy to decipher the exact content of the chemicals if they are essential to assure underground sources will in the wells. Another problem is that many states will not be endangered by injection. According to the agency, identify chemicals before the drilling operations take fracking does not endanger underground water supplies place. The pre-fracking disclosures are not always help- so it does not need to be regulated through the SDWA.97 ful when there problems such as spills or contamination issues. The precise composition of fracturing fluids tends There has been some controversy over this exception to be altered as the well is being used so the information for fracking operations. In Legal Environmental Assistance obtained beforehand is not always completely accurate.87 Foundation, Inc. (LEAF) v. U.S. Environmental Protection Additionally, the level of trade secret protection differs by Agency, LEAF contested Alabama’s Class II Underground state, which creates a broad spectrum that companies can Injection Control (UIC) Program because it did not regu- exploit to disclose limited information.88 late methane released from hydraulic fracturing tech- niques.98 The EPA countered that hydraulic fracturing Another major concern from fracking is the pos- techniques were not regulated under the SDWA because sibility of earthquakes related to the drilling operations. underground injection was not the main purpose of the Studies show pressurized water and fluids used in frack- activity.99 Instead, the EPA determined the wells were ing lead to disruptions in underground structures, which predominately used for the production of natural gas, can potentially cause earthquakes.89 Microearthquakes, but not for fluid injection.100 The court ruled in favor of which are smaller in scale, have been linked to hydraulic LEAF finding the hydraulic fracturing processes were un- fracturing as well.90 Studies conducted by Columbia Uni- derground injections and should be regulated under the versity examined earthquake activity near fracking wells. SDWA.101 The EPA was ordered to withdraw its approval The researchers determined fracking fluids travel into of Alabama’s Class II UIC program. natural faults, which can set off the earthquakes.91 The study concluded there was a strong relationship between The case did not result in the regulation of fracking the high pressure injections of fracking fluids and the under the state’s UIC program. Prior to a writ of manda- corresponding earthquakes.63 Additionally, it is expected mus, Alabama submitted a revised UIC program to get 102 that with more wells and more fluids, earthquakes linked around the court’s ruling. This time the state sought to hydraulic fracturing could increase in number and approval of the UIC program under a different part of the 103 magnitude.92 All of these environmental problems have SDWA. In § 1425, hydraulic fracturing is not explicitly alarmed communities throughout the country. These con- listed as one of the activities which may be approved 104 cerns have prompted the groundswell for more precise under the provision. Yet, the EPA still approved Ala- and effective regulation, which has not been well received bama’s revised UIC program under this part of the stat- by the industry and its backers. ute. The EPA decided to categorize hydraulic fracturing

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 59 as a Class II type well but not actually as a Class II well.105 the Chief Executive Officer for Halliburton, the corpora- By framing the fracking activities in this manner, the EPA tion responsible for originally developing the hydraulic and Alabama were skirting the court’s ruling in the previ- fracturing process.123 The task force strongly endorsed the ous case. SDWA exemption for hydraulic fracturing.124 The Legal Environmental Assistance Foundation The exemption for hydraulic fracturing under the decided to challenge the agency’s approval in this man- SDWA parallels how the process is treated under the ner. LEAF argued the EPA’s decision was inconsistent Clean Water Act (CWA). The CWA regulates surface wa- with the plain meaning of the statute.106 Additionally, ter by limiting pollutants from entering water sources LEAF argued the UIC program could not be approved without a permit.125 Companies must seek such a permit unless hydraulic fracturing was correctly classified and if they are dumping pollutants into the water under the regulated under the law.107 Under a Chevron analysis, the National Pollutant Discharge Elimination System (NP- court ruled the EPA’s decision regarding § 1425 and the DES) program.126 The CWA requires the agency granting UIC program was a permissible construction but with a the permit to assess the equipment used to restrict pol- major caveat.108 The court stated the agency’s decision not lutants and consider if discarding such pollutants meets to categorize hydraulic fracturing wells as Class II under- minimum water quality standards.127 The states are given ground injection wells was problematic.109 More informa- the authority to implement their own programs under tion was needed to fully resolve the issue. As a result, the the CWA but these must be approved by the EPA.128 The case was remanded to the EPA to review if underground aforementioned Energy Policy Act of 2005 amended the injection used in hydraulic fracturing actually required CWA so that runoff from hydraulic fracturing is not con- regulation under the SDWA.110 In order to resolve this is- sidered a pollutant.129 As a result, this CWA exemption sue, the EPA decided to perform a study.111 The study was allows companies to continue fracking without permits completed in 2004 and found the injection and extraction under the National Pollutant Discharge Elimination Sys- of materials in fracking did not create a significant dan- tem. Therefore, drilling sites, fracking fluid pits, access ger to underground drinking water supplies.112 The EPA roads, on-site treatment plants, and transportation equip- study only examined coalbed methane wells.113 It has ment are not covered by the Clean Water Act. been heavily criticized for its narrow scope.114 It lacked sufficient scientific data as most of the review consisted Fracking has only grown since these decisions were of preexisting literature and interviews.115 The study was made regarding the SDWA and the CWA. There has been also solely focused on the injection portion of fracking a movement to reconsider how fracking should be regu- and did not analyze the storage and transportation of lated on a national level. In 2012, the EPA finally put forth fracking fluids.116 guidance regarding the issuing of UIC permits when die- sel fuel is used in fracking wells.130 Also in 2012, the EPA After the second LEAF case, the EPA still did not announced federal air emissions standards for fracking regulate fracking wells as Class II wells. Instead, the EPA wells, effective in 2015. The new standards will be imple- forged an agreement with most of the oil and gas indus- mented under the Clean Air Act through the New Source try by requiring that diesel fuel be excluded from the Performance Standards (NSPS) and National Emission fluids used in fracking wells. A 2003 Memorandum of Standards for Hazardous Pollutants (NESHAP).131 Ac- Agreement created a voluntary arrangement between the cording to these rules, air pollution standards are put EPA and major companies such as Halliburton.117 These into place for fractured and re-fractured wells.132 Oil and corporations were provided thirty days to cease using gas companies involved with hydraulic fracturing are re- diesel fuel as an injection fluid in their hydraulic fractur- quired to use reduced emissions completions (RECs) and ing operations.118 Yet, the agreement was completely a completion combustion device, which burns off gas to voluntary and even allowed the companies involved to prevent it from escaping.133 A REC separates gas and liq- stop compliance if they provided notice.119 Following the uid hydrocarbons from the fracking fluids.134 These RECs results of the 2003 agreement and the 2004 study, the En- are mandated to lessen the amount of volatile organic ergy Policy Act of 2005 was enacted.120 This law created a compounds (VOC) released into the air. formal SDWA exemption and companies would not have to disclose which chemicals were used in their fracking To address water pollution, the EPA has commenced wells.121 Under the Act, underground injection explicitly a comprehensive study to assess how fracking affects excludes the underground injection of fluids for hydraulic drinking water resources. Considering the 2004 study fracturing activities, except when diesel fuels are used.122 was heavily criticized, the agency has taken a more care- This lack of regulation for hydraulic fracturing opera- ful approach with the current investigation. The EPA is in tions has been labeled the Halliburton Loophole because the midst of a six year study concerning the impact of hy- of the company’s substantial involvement with the 2003 draulic fracturing on drinking water. The agency is look- voluntary agreement and the Energy Policy Act of 2005. ing at the effect of hydraulic fracturing fluids on water resources, the impact of injection, the intensive fracturing In 2001, President Bush established an Energy Policy 135 Task Force run by Vice President Dick Cheney in order to process, and the treatment of fracking fluids. design a national energy policy. Cheney was previously

60 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 EPA finally released its long-awaited study on the ef- zoning and land use powers to prevent adverse effects fects of hydraulic fracturing on drinking water resources. from fracking. The Court agreed with the towns and According to the report, although there were some iso- found the supersession clause in the Oil, Gas and Solu- lated instances of contamination, hydraulic fracturing as tion Mining Law did not preempt local zoning laws.145 a whole did not lead to systemic contamination issues of The Court conceded the ordinances had an impact on water resources. Rather, the number of identified cases hydraulic fracturing but that was not the main purpose was very small compared to the number of hydraulically of the local laws. Instead, the Court reasoned the towns fractured wells.136 enacted the ordinances as part of their zoning and land use schemes to preserve their communities.146 The mu- B. State and Local Regulation nicipalities were trying to avoid harmful impacts to their Beyond the federal regulatory scheme, state and local towns. Therefore, the local bans did not constitute a regulation of the fracking industry has also been fairly direct regulation of oil and gas operations and were not controversial. In fact, the local laws concerning hydraulic preempted by the statute. fracturing have made much more noise. Few states have completely banned fracking altogether while others are The Court determined there was a huge difference in the middle of ongoing debates concerning the level of between regulations involving technical aspects of hy- regulation required. Regulation has mostly taken place draulic fracturing and local zoning laws. The state was in through local zoning and land use laws, which have been charge of regulating the methods used in the processes challenged by the industry. The fracking companies have but it could not deprive localities from exercising their argued these local regulations are preempted by state oil zoning powers. Furthermore, the Court also ruled that and gas laws, which tend to be very permissive towards complete bans were still considered to be zoning laws hydraulic fracturing activities. and did not encroach on the state Oil, Gas and Solution

“The long and tumultuous path of fracking regulation in New York reveals the challenges faced by local governments in trying to rein in the industry.”

The state of New York was home to a lengthy, pro- Mining Law.147 Reasonable exercise of police powers to longed, and highly publicized debate concerning frack- avoid harm was preserved for the zoning boards. Fur- ing. The New York Oil, Gas and Solution Mining Law thermore, the moratorium on fracking continued after the contains a provision superseding local laws regulating rulings. The decision had a tremendous ripple effect on oil and natural gas production.137 In 2008, the state of statewide policy. In December 2014, Governor Andrew New York suspended hydraulic fracturing, which led to M. Cuomo officially banned hydraulic fracturing in all of a moratorium on fracking.138 The New York State Depart- New York State.148 The administration cited health risks ment of Health (DOH) commenced a study on fracking in after the state Health Department study was finally com- 2012.139 Local governments started to draft their own or- pleted. According to the state health commissioner, Dr. dinances to prohibit and restrict hydraulic fracturing. The Howard A. Zucker, there were significant public health most significant battles took place in the towns of Dryden risks from fracking.149 The administration cited stud- and Middlefield. In Dryden, the zoning board amended ies from many different states involving issues such as its zoning and land use laws to exclude all hydraulic frac- methane emissions, methane leakage into water, seismic turing activities. The town implemented the ban by allud- activity, soil contamination, and noise pollution.150 The ing to concerns about road use, noise limits, and protect- moratorium lasted six years and resulted in a complete ing critical environmental areas.140 Similarly, Middlefield prohibition on hydraulic fracturing activities. The long altered its zoning laws and the towns were subsequently and tumultuous path of fracking regulation in New sued by the oil and gas industry.141 York reveals the challenges faced by local governments in trying to rein in the industry. Although opponents of The New York state constitution contains a home fracking in the state may finally have been successful, the rule provision which allows municipalities to design zon- 142 ability to use home rule to limit the activity to any extent ing and land use laws to govern their communities. In is becoming a serious challenge in states where fracking the lower courts, the towns claimed they had the power continues to occur. to enact such ordinances because land use issues were at stake. The towns were successful but the cases were ap- In Pennsylvania, the abundance of natural gas in the pealed.143 In December 2013, the New York Court of Ap- Marcellus shale has led to a great deal of controversy. The peals analyzed the arguments set forth in Wallach v. Town state enacted the Oil and Gas Act of Pennsylvania known of Dryden.144 Both towns wanted to make use of their as Act 13 in 2012.151 Under Act 13, local zoning and land

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 61 use laws were supposed to be preempted by state laws. in favor of the industry and determined the town’s ban Act 13 was enacted to amend the preexisting Oil and Gas was not considered a valid exercise of home rule, police Act. The law would remove limits on when and where powers, and land use authority.163 The decision also cited fracking could take place, making it possible at any time, the state’s interest in oil and gas production, which out- any day, despite the location.152 It essentially forced mu- weighed the city’s desire to prohibit hydraulic fractur- nicipalities to permit fracking operations regardless of ing.164 The decision was based on a previous case from the character of the surrounding communities. Therefore, 1992, Voss v. Lundvall Bros, which also limited local zon- many towns decided to contest the validity of Act 13.153 In ing laws restricting oil and gas extraction.165 In Voss, the Robinson Twp., Washington Cnty. v. Com, the seven Penn- city of Greeley enacted land use laws to prohibit oil and sylvania towns that challenged the law did not want to gas drilling operations.166 The Colorado Supreme Court relinquish control over the land use policies governing ruled the Oil and Gas Conservation Act preempted the their own neighborhoods.154 The Pennsylvania Supreme local laws.167 The Longmont case was appealed by the Court analyzed the state constitution and then decided municipality. The lower court decision was affirmed and certain provisions of Act 13 were unconstitutional.155 The the court ruled that Longmont’s ban on fracking was in court determined Act 13 would improperly take away conflict with state law and, therefore, unenforceable.168 zoning powers from the towns.156 Local governments could not be prevented from using home rule to enact Although the battle is ongoing, Colorado towns may zoning ordinances concerning hydraulic fracturing. The not be able to rely upon home rule to effectively exert court found the law contravened the Environmental control over hydraulic fracturing in their vicinity. In an- Town of Frederick v. North American Rights Amendment in the Pennsylvania Constitution.157 other Colorado case, Res. Co, The state constitution provides that individuals have a the court determined laws concerning setbacks, noise, and visual impacts applicable to fracking are im- right to clean air, pure water, and the preservation of the 169 environment.158 Relying on this provision, portions of Act permissible if they are stricter than state regulations. 13 were struck down because the unfettered development Therefore, even if Colorado cities enact ordinances other of the oil and gas industry would have an indelible im- than a complete ban on fracking, the state does not permit pact on the environment within the towns. The court also local laws more stringent than the Colorado Oil and Gas added that any similar state laws would be nullified un- Conservation Act. This lack of control for local govern- less they provided local police powers to ensure sustain- ments seriously impedes the ability of Colorado residents able development to protect the environment.159 Penn- to exert any influence on fracking activities in their neigh- sylvania continues to permit fracking operations as there borhoods. Instead, the industry is controlled by the Oil has not been an outright ban like New York. The Penn- and Gas Conservation Commission, without any recogni- sylvania towns have preserved the ability to exert control tion of local interests. over where, when, and how fracking activities take place The situation in Colorado demonstrates the void cre- around them. Yet, they continue to face challenges from ated by the lack of federal regulations for fracking. Cities the oil and gas industry. Since there are no federal regu- and towns are forced to contend with statewide laws, lations in place, local governments take on the risk of which may not adequately protect local interests such as litigation when they choose to enact zoning laws to limit community character. The state laws may also not ad- fracking in their jurisdiction. Additionally, portions of Act dress substantial environmental concerns. One of the 13 are still applicable and have been problematic. Part of most important issues concerning fracking is the impact Act 13 requires physicians treating patients harmed by of the chemicals used in fracking fluids. Trade secret laws fracking chemicals to comply with a confidentiality agree- present a major hurdle in chemical disclosure. In Colora- ment.160 This creates a serious problem for the health of do, there is no mechanism in place to compel companies Pennsylvania residents. It forces health care providers to to disclose chemical additives if the information is with- abide by industry confidentiality agreements, which can held.170 So far, the situation in Colorado diverges from the conflict with their duty to ensure patients and the public paths taken in New York and Pennsylvania. Even though are healthy. If physicians disclose the information to pro- the Colorado state constitution provides home rule cities tect individuals, they can face liability for breach of con- like Longmont with zoning authority to decide how de- tract under the confidentiality agreements. velopment occurs, courts have placed a greater emphasis In the state of Colorado, the battle for local fracking on the status of the oil and gas industry throughout the regulations has been ineffective so far. The city of Long- state. Courts have not considered that some towns or cit- mont amended its city charter to prohibit fracking.161 ies might have distinct characteristics making them more The local law was quickly challenged by the oil and gas vulnerable to the impacts of fracking. companies in the region. The industry claimed the local The state of Ohio is also facing the same struggle as law should be preempted by the state law. The Colorado Colorado over hydraulic fracturing operations. The case Oil and Gas Conservation Act allows hydraulic fractur- of State ex rel. Morrison v. Beck Energy Corp. arose after ing and gives the Oil and Gas Conservation Commission Beck Energy began drilling operations in Munroe Falls.171 the power to regulate such activities.162 The court ruled The company had been issued a state drilling permit but

62 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 the city enforced a stop work order because it had enacted fracturing activities. The Railroad Commission controls laws restricting fracking wells.172 A lawsuit was filed by all oil and gas wells in Texas and has the power to adopt the municipality to enforce its zoning ordinances. Munroe rules for regulating oil and gas activities.183 Towns in Falls claimed the zoning law should not be preempted Texas have reasons to be concerned as the Texas Railroad by the state law for oil and gas activities.173 The city Commission has not been effective in regulating frack- wanted to preserve its community character, health, and ing operations in the state. In one year, the Commission quality of life for its residents. Therefore, Munroe Falls received almost twenty thousand water violations from claimed that zoning and land use power over industrial fracking wells, but enforced less than one percent of the operations like fracking were constitutional. Beck Energy violations.184 Moreover, the Texas legislature has already countered, arguing the Ohio Department of Natural Re- responded to the Denton zoning ordinances. Senate Bill sources controls the regulation of oil and gas activities 1165 and House Bill 40 have been advanced by state law- and local zoning can not contravene their state permit.174 makers to clarify that local governments may not curb oil The court decided to invalidate the ordinances enacted by and gas production from fracking.185 The legislation seeks the city.175 The zoning laws required drillers to apply for to severely limit any zoning or land use laws aimed at zoning certificates, created a waiting period, and required hydraulic fracturing operations, unless they are deemed a public hearing prior to drilling.176 The ruling stated to be commercially reasonable for the industry.186 The these zoning requirements were in conflict with Ohio’s abovementioned states, New York, Pennsylvania, Colora- oil and gas drilling license law administered by the Ohio do, Ohio, and Texas, have all dealt with strong opposition Department of Natural Resources.177 The opinion made it to fracking regulations. There are some variations in the clear that zoning laws would not be able to exert control outcomes and other cases are still pending. Regardless, over actual fracking wells or sites. The news in Ohio is there is a void created by the lack of uniform standards especially troubling considering the state has been home because the process cannot be adequately regulated with- to significant earthquake activity linked to fracking. Stud- in the individual states. ies conducted by Miami University in Ohio found over 77 earthquakes were connected to hydraulic fracturing with- V. The Future of Fracking in the state.178 Although relatively small in magnitude Fracking has been a polarizing issue for towns and so far, the progression of the earthquakes indicates the cities across America. For many, the economic advantages potential for more severe threats in the future. Cities and have been welcomed with open arms. After the finan- towns throughout Ohio will face a daunting task ahead of cial crisis and the recession, the shale oil and natural gas them if they choose to try to enforce restrictions on frack- boom provided some much needed relief. Domestic oil ing in their neighborhoods. and natural gas not only replace a substantial amount of foreign imports, but strengthen the economy at the same Texas, too, is in the midst of the fracking regulation time. There have been some groups calling for a federal debate with challenges still awaiting review. The oil and ban on hydraulic fracturing altogether. At this point, it is gas industry has played a huge role in the state of Texas unreasonable to think that hydraulic fracturing will be for a long time. Texas sits above the Barnett shale, which prohibited on a large scale. Even considering the environ- is rich in oil and natural gas. Like other states, cities with- mental issues, an absolute ban would be irrational. The in Texas have decided to take a stand against the fracking country would have a very difficult time going back to an industry. The city of Denton chose to enact a zoning ordi- extreme reliance on foreign fossil fuel resources. Further- nance to ban fracking within the city limits.179 Texas rec- more, there are much better alternatives, which are more ognizes home rule authority for municipalities and Den- sensible considering the economic, environmental, and ton exercised its zoning and land use powers to enact the national interest concerns. ban. Following the enactment of the zoning law, the Texas Oil and Gas Association and the Texas General Land Of- The current approach at the state and local level has fice filed lawsuits against the City of Denton to challenge been deficient. It has been fairly common for industry in- the local law.180 Similar to other challenges across the terests to exploit lax statewide rules. In addition, the state country, the industry argued the zoning ordinance should and local regulation approach has burdened local govern- be preempted by the state law. The Texas Oil and Gas ments disproportionately. By enacting their own local Association claimed the Denton zoning ordinance was laws under home rule authority, cities and towns have unconstitutional and denied property rights to land own- had to participate in enormous legal battles. Additionally, ers with current or potential fracking operations.181 On the home rule provisions are not always available to all the other hand, the City of Denton argued the ordinance cities and towns looking to enact regulations. Municipali- is designed to limit the harmful impacts of fracking such ties are not well situated to handle the powerful oil and as noise and toxic fumes from wells.182 The case has not gas industry. For instance, the aforementioned city of been decided yet but the outcome will surely have a sig- Longmont has already spent $136,000 trying to enforce its nificant impact on the future of fracking in Texas. If the zoning laws concerning fracking.187 For a city of less than courts rule as they did in Colorado and Ohio, cities across 100,000 residents, that has not been an easy task and the Texas would be stripped of local authority over hydraulic legal challenges are far from over.188 The difficulties may

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 63 prove to be too arduous for others. Another Colorado and how they can be limited as necessary. The FRAC Act town, Lafayette, lost in court after being sued over its would also resolve the issue concerning chemical disclo- zoning restrictions for hydraulic fracturing operations.189 sure and health care providers. Currently, Act 13 in Penn- Given the significant resources required to continue, the sylvania is one state where physicians are prevented from town decided to give up the fight. disclosing chemicals used in fracking fluids.196 Allowing chemical disclosure in the health care setting will avoid Even in cases where they are successful as in New 190 this dangerous problem. Physicians should not be put York, the process took seven years to be finalized. More in the unethical position of deciding between industry importantly, it resulted in a complete ban which is not agreements and their duty to assist patients. necessarily the goal for all types of regulation. Instead, there should be a form of federal regulation establishing However, the federal regulatory scheme should go standards applicable to all major aspects of hydraulic beyond just the proposed FRAC Act. Since fracking was fracturing. At the same time, local government should also exempted from the Clean Water Act (CWA), the stat- have the option of enforcing zoning and land use laws ute should be made applicable to fracking as well. The more restrictive than these uniform standards. Under this runoff and sediments from fracking sites contain many type of approach, cities will not have to start from scratch pollutants which are harmful to the public. Therefore, to design their own regulations. They will have the op- both the SDWA and the CWA should cover fracking op- tion to enact more stringent laws if residents deem them erations. The current patchwork of fracking regulations necessary. On the other hand, towns may also choose to on a federal level, including the EPA’s rules for limiting support hydraulic fracturing activity but at least there VOC emissions and regulating diesel fuel, does not ad- will be certain standardized regulations in place to ensure dress the chief environmental concerns. These changes by their health and safety. A federal fracking law with room the federal government would help establish a regulatory for local laws is a reasonable and balanced approach in an floor upon which local or state governments may choose otherwise antagonistic debate. to build upon as they see fit. One such federal solution was proposed through the More recently, there have been some efforts to es- Fracturing Responsibility and Awareness of Chemicals tablish federal regulations. The first comprehensive fed- Act (FRAC Act). The bill was brought up in both houses eral fracking regulations aimed at different facets of the of congress in 2009, 2011 and 2013.191 However, it did not hydraulic fracturing process were announced in March receive much traction and was never close to being en- 2015.197 The regulations were promulgated by the Interior acted. Lobbying from the oil and gas industry made the Department and apply to Bureau of Land Management FRAC Act extremely unpopular and has contributed to (BLM) lands, which account for approximately one hun- the current regulatory void.192 The FRAC Act proposed dred thousand fracking wells.198 These new laws will pro- repealing the Safe Drinking Water Act (SDWA) exception vide for the inspection of concrete surrounding the steel for hydraulic fracturing.193 As discussed previously, this pipes installed in wells.199 The measures are intended to exception was litigated multiple times and the EPA has ensure the linings are sealed to prevent leakage of harm- failed to regulate fracking wells under the statute. The ful chemicals found in fracking fluids. Chemical disclo- agency conducted a flawed study on the impact of frack- sure is also required under these federal regulations.200 ing on water resources and deemed SDWA regulations Storage of fracking fluids near wells on BLM lands will be were not required. A great deal of credible research has regulated to prevent leaks or spills.201 The BLM fracking been done since the 2004 study and demonstrates that regulations are a sign of advancement on a federal level. there are real threats to water supplies.194 Additionally, The major problem with the new regulations is that they the EPA has decided to perform a more complete review are extremely narrow in scope. By only including public because of the concerns and the new study is slated to lands managed by the BLM, there still remains a huge be completed next year. The Energy Policy Act of 2005, gap in federal fracking law. There are four times as many which formalized the fracking exception through the Hal- fracking wells situated on private or state-owned land.202 liburton Loophole, was the result of heavy industry influ- Yet, the federal government chose to implement regula- ence. Removing the exception would resolve major envi- tions solely on BLM lands. There are many more residen- ronmental concerns and make use of an existing federal tial areas surrounding private lands where fracking regu- regulatory scheme under the SDWA to ensure fracking is lation is desperately needed. Much of the land managed done safely. The FRAC Act further proposed that compa- by the BLM is located near low population densities. This nies disclose chemicals used in fracking wells.195 As men- does not make the regulations unnecessary, but it shows tioned in Section III, the varying chemical disclosure laws there are other critical areas much more vulnerable. across states prevent the public and governments from understanding how to best regulate hydraulic fracturing. The federal government should be more active in its Mandating chemical disclosure on a federal level would oversight of the hydraulic fracturing industry. Consider- avoid the trade secret protections provided by certain ing the sheer size of fracking operations throughout the state laws. It would also aid regulatory bodies because country, the federal government is best situated to handle they would be aware of the kinds of chemicals present the regulatory task. It is also sensible to have a federal

64 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 program in place because there are national implications 7. Id. from fracking including energy policy, the economy, na- 8. David Spence, Fracking Regulations: Is Federal Hydraulic Fracturing tional security, public health, and the environment. These Regulation Around the Corner? 3 (2010), https://www.mccombs. types of issues are usually handled by federal agencies. utexas.edu/~/media/Files/MSB/Centers/EMIC/EMIC%20 Misc/Fracking-Regulations-Is-Federal-Hydraulic-Fracturing- Currently, there are many discrepancies among various Regulation-Around-Corner.PDF. states about the role of fracking regulation. By establish- 9. How Does Directional Drilling Work?, Rigzone, http://www. ing a baseline for all states, a federal law applicable to rigzone.com/training/insight.asp?insight_id=295. fracking on federal, state, and private lands would help 10. Id. ease the ongoing disputes. Federal standards would not 11. See id. only placate environmental interests, they would also 12. Id. be beneficial for the industry. Many of the legal battles concerning fracking have taken place because there is a 13. U.S. Energy Info. Admin., What Is Shale Gas and Why Is It Important?, http://www.eia.gov/energy_in_brief/article/about_ regulatory vacuum. Federal guidelines will alleviate the shale_gas.cfm. responsibility felt by local governments to take action. In 14. A Historic Perspective, Fracfocus, http://www.fracfocus.org/ his Climate Action Plan, President Obama characterized hydraulic-fracturing-how-it-works/history-hydraulic-fracturing. hydraulically fractured natural gas as a transition fuel to 15. Id. a cleaner, renewable energy future.203 That is certainly a 16. Well Construction & Groundwater Protection, Fracfocus, http:// balanced strategy and a commendable goal. In order to fracfocus.org/hydraulic-fracturing-how-it-works/casing. ensure such a smooth transition, the nation must take 17. Id. adequate measures to regulate the fracking industry as 18. Karen Moreau, How Fracking Works, N.Y. Post, Sept. 28, 2011, whole, not in its current piecemeal fashion. http://www.nypost.com/p/news/opinion/opedcolumnists/ how_fracking_ works_cKSUVaVvWedFdqfvNQ2q7H. Conclusion 19. Hydraulic Fracturing: The Process, Fracfocus, http://www.fracfocus. Few resources have had the type of impact on org/hydraulic-fracturing-how-it-works/hydraulic-fracturing- modern life like fossil fuels. Energy derived from these process. sources supplies our towns, cities, and the nation. Almost 20. Id. everything we rely upon is directly linked to the use of 21. See id. these vital resources. With the hydraulic fracturing boom, 22. Minority Staff of H. Comm. On Energy and Com., 112th Cong., America has been given a tremendous opportunity. Yet, Chemicals Used in Hydraulic Fracturing 1 (Comm. Print 2011). the prosperity comes with great responsibility. Using an 23. See id. at 2. abundance of domestic oil and natural gas, the country 24. Fracturing Fluid Management, Fracfocus, http://fracfocus.org/ can develop and thrive in the 21st century. To ensure the hydraulic-fracturing-how-it-works/drilling-risks-safeguards. newfound energy is used reasonably, proper steps should 25. Id. be taken to regulate the industry before there are irrepara- 26. Id. ble harms. By introducing comprehensive federal regula- tions, fracking can continue to power the nation, but also 27. Daniel Yergin, The Quest: Energy, Security, and the Remaking of the Modern World 330 (2011). provide the much needed safeguards to protect what may 28. IHS Global Insight, The Economic and Employment Contributions of be our greatest resources, the environment and the iconic Shale Gas in the United States 9, http://www.ihs.com/info/ecc/a/ American landscape. shale-gas-jobs-report.aspx. Endnotes 29. Yergin, supra note 27, at 329. Vanity Fair 1. BP, Statistical Review of World Energy, June 2013, http:// 30. Christopher Bateman, A Colossal Fracking Mess, , June www.bp.com/content/dam/bp-country/fr_fr/Documents/ 2010, http://www.vanityfair.com/business/features/2010/06/ Rapportsetpublications/statistical_review_of_world_energy_2013. fracking-in-pennsylvania-201006. pdf. 31. Amy Myers Jaffe, How Shale Gas Is Going to Rock the World, Wall St. J. 2. Armando Benincasa, The Current and Future State of Shale Gas and , May 10, 2010, at R1. Hydraulic Fracturing Regulation, ABA Trends, Jan. 2011, 8. 32. President Barack Obama, 2012 State of the Union Address, Jan. 3. U.S. Energy Info. Admin., What Is Shale Gas and Why Is It 24, 2012, http://articles.washingtonpost.com/2012-01-24/ Important?, http://www.eia.gov/energy_in_brief/article/about_ politics/35440939_1_fair-share-hard-work-world-war-ii. shale_gas.cfm. 33. Int’l Energy Agency, World Energy Outlook 2012 23, 128, http://iea. 4. U.S. Energy Info. Admin., Analysis and Projections: Review of org/publications/freepublications/publication/English.pdf. Emerging Resources, http://www.eia.gov/analysis/studies/ 34. Id. at 5, 17. usshalegas/. 35. Russell Gold, Oil and Gas Bubble Up All Over, Wall St. J., Jan. 3, 5. U.S. Energy Info. Admin., What Is Shale Gas and Why Is It 2012, at A7. Important?, http://www.eia.gov/energy_in_brief/article/about_ 36. OFA Consulting Servs., Non-Renewable Sources, OFACS, http:// shale_gas.cfm. www.ofaconsultingservices.com/energy-sources/non-renewable- 6. Jacquelyn Pless, Nat’l Conference of State Legislatures, Natural sources. Gas Development and Hydraulic Fracturing: A Policymaker’s 37. DOE, Fossil Fuels, Energy.Gov, http://www.energy.gov/ Guide 1 (2012), http://www.ncsl.org/documents/energy/ energysources/fossilfuels.htm. frackingguide_060512.pdf.

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 65 38. Andrew C. Mergen, The Mining of the North: A Review of Andrew on Drinking Water Resources 22, http://water.epa.gov/type/ Nikiforuk’s Tar Sands: Dirty Oil and the Future of a Continent, 21 Vill. groundwater/uic/class2/hydraulicfracturing/upload/hf_study_ Envtl. L.J. 219, 219 (2010). plan_110211_final_508.pdf. 39. Alberta Chamber of Res., Oil Sands Technology Roadmap: Unlocking 63. Brian J. Smith, Fracing the Environment?: An Examination of the the Potential 7, http://www.acr-alberta.com/OSTR_report.pdf. Effects and Regulation of Hydraulic Fracturing, 18 Tex. Wesleyan L. 40. OFA Consulting Servs., Non-Renewable Sources, OFACS, http:// Rev. 129, 132 (2011). www.ofaconsultingservices.com/energy-sources/non-renewable- 64. CERES, Hydraulic Fracturing & Water Stress: Water Demand by the sources. Numbers, http://www.ceres.org/resources/reports/hydraulic- 41. Michael A. Levi, The Canadian Oil Sands: Energy Security vs. Climate fracturing-water-stress-water-demand-by-the-numbers/view. Change 15, http://www.cfr.org/canada/canadian-oil-sands/ 65. Monika Freyman & Ryan Salmon, Hydraulic Fracturing & Water p19345. Stress: Growing Competitive Pressures for Water 3 (2013), https:// 42. Andrew Nikiforuk, Tar Sands: Dirty Oil and the Future of a Continent www.ceres.org/resources/reports/hydraulic-fracturing-water- 2 (2008). stress-growing-competitive-pressures-for-water. 43. Ezra Levant, Ethical Oil: The Case for Canada’s Oil Sands 9 (2010). 66. CERES, Hydraulic Fracturing & Water Stress: Water Demand by the Numbers 6, http://www.ceres.org/resources/reports/hydraulic- 44. Cent. Intelligence Agency, The World Factbook, https://www.cia. fracturing-water-stress-water-demand-by-the-numbers/view. gov/library/publications/the-world-factbook/. 67. Stephen G. Osborna, et al., Methane Contamination of Drinking 45. Kevin J. Fandl, Terrorism, Development & Trade: Winning the War on Water Accompanying Gas-Well Drilling and Hydraulic Fracturing, 108 Terror Without the War, 19 Am. U. Int’l L. Rev. 587, 614 (2003). Nat’l Acad. of Sci. Proc. No. 20 8172-76, available at http:// www. 46. Int’l Energy Agency, World Energy Outlook 2012 23, 138, http://iea. pnas.org/content/early/2011/05/02/1100682108.full.pdf?with- org/publications/freepublications/publication/English.pdf. ds=yes. 47. IHS CERA, Fueling the Future with Natural Gas: Bringing It Home, 68. Id. available at https://www.fuelingthefuture.org/assets/content/ 69. Minority Staff of H. Comm. On Energy and Com., 112th Cong., AGF-Fueling-the-Future-Study.pdf. Chemicals Used in Hydraulic Fracturing 1 (Comm. Print 2011). 48. North Dakota Unemployment, Department of Numbers, available 70. See id. at 8. at http:// www.deptofnumbers.com/unemployment/north- dakota/. 71. Id. at 10. 49. Diana Furchtgott-Roth & Andrew Gray, Empire Ctr. for N.Y. 72. Id. 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Jay Kimball, Congress Releases Report on Toxic Chemicals Used org/publications/freepublications/publication/English.pdf. In Fracking, 8020 Vision, Apr. 17, 2011, http://8020vision. com/2011/04/17/congress-releases-report-on-toxic-chemicals- 53. Fred Dews, The economic benefits of fracking,Brookings , March used-in-fracking; Theo Colborn et al., Natural Gas Operations From 23, 2015, http://www.brookings.edu/blogs/brookings-now/ a Public Health Perspective, 17 Hum. & Ecological Risk Assessment: posts/2015/03/economic-benefits-of-fracking. Int’l J. 1039, 1045 (2011). 54. IHS Global Insight, The Economic and Employment Contributions of 79. Adam Orford, Hydaulic Fracturing: Legislative and Regulatory Trends, Shale Gas in the United States 26, http://www.ihs.com/info/ecc/a/ 279 Env. Couns. NL. 2, 4 (2011). shale-gas-jobs-report.aspx. 80. Jay Kimball, Congress Releases Report on Toxic Chemicals Used 55. Ernest J. Moniz, Henry D. Jacoby & Anthony J.M. Meggs, MIT In Fracking, 8020 Vision, Apr. 17, 2011, http://8020vision. Study on the Future of Natural Gas 99, http://mitei.mit.edu/ com/2011/04/17/congress-releases-report-on-toxic-chemicals- system/files/NaturalGas_Report.pdf. used-in-fracking. 56. Michael Rubinkam, Natural Gas Drillers Target US Truck, Yahoo 81. Craig Slatin & Charles Levenstein, An Energy Policy that Provides Finance, Nov. 25, 2012, http://finance.yahoo.com/news/natural- Clean and Green Policy, 23 New Solutions 1, 16 (2013). gas-drillers-target-us-truck-bus-market-182633169-finance.html. 82. Ian Urbina, Regulation Lax as Gas Wells’ Tainted Water Hits Rivers, 57. Int’l Energy Agency, World Energy Outlook 2012 5, http://iea.org/ N.Y. Times, Feb. 27, 2011, at A1. publications/freepublications/publication/English.pdf. 83. See id. 58. IHS CERA, Fueling the Future with Natural Gas: Bringing It Home, https://www.fuelingthefuture.org/assets/content/AGF-Fueling- 84. Id. the-Future-Study.pdf. 85. Id. 59. Int’l Energy Agency, World Energy Outlook 2012 8, http://iea.org/ 86. Minority Staff of H. Comm. On Energy and Com., 112th Cong., publications/freepublications/publication/English.pdf. Chemicals Used in Hydraulic Fracturing 11 (Comm. Print 2011). 60. Id. at 75. 87. Elizabeth A. Howard & Derek F. Knerr, United States: Fracking 61. Hydraulic Fracturing FAQs, GaslandTheMovie.com, http:// www. Trade Secret Rules: A Tug of War Without Winners, October 29 gaslandthemovie.com/whats-fracking. 2013, http://www.mondaq.com/unitedstates/x/271796/ Oil+Gas+Electricity/Fracking+Trade+Secret+Rules+A+Tug+of+W 62. EPA, Plan to Study the Potential Impacts of Hydraulic Fracturing ar+Without+Winners.

66 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 88. Id. 119. Id. 89. Vitaly V. Adushkin, et al., Seismicity in the Oilfield, available at 120. Terry W. Roberson, Feature: The State of Texas Versus the EPA http://www.slb.com/~/media/Files/resources/oilfield_ review/ Regulation of Hydraulic Fracturing, 48 Houston Lawyer 24, 25 ors00/sum00/p2_17.ashx. (2011). 90. Ying-Ping Li, Microearthquake Analysis for Hydraulic Fracture Process, 121. 42 U.S.C. § 300h. Acta Seismologica Sinica 9 , 377, 377-87 (1996). 122. 42 U.S.C. § 300h(d)(1)(B)(i)-(ii). How fracking might have led to an Ohio earthquake 91. Pete Spotts, , 123. Id. Christian Sci. Monitor, http://www.csmonitor.com/ Science/2012/0102/How-fracking-might-have-led-to-an-Ohio- 124. Michael Abramowitz & Steven Mufson, Papers Detail earthquake. Industry’s Role in Cheney’s Energy Report, Wash. Post, July 18, 2007, http://www.washingtonpost.com/wp-dyn/content/ See id. 92. article/2007/07/17/AR2007071701987.html. Fracturing Misconceptions: A History of Effective State 93. Wes Deweese, 125. 40 C.F.R. § 122.2. Regulation, Ground-Water Protection, and the Ill-Conceived FRAC Act, 6 Okla. J. L. & Tech. 49, 9 (2010). 126. 33 U.S.C. § 1342(a). 94. EPA, Underground Injection Control Program Federal UIC Regulations, 127. Id. at § 1311. available at http://water.epa.gov/type/groundwater/uic/index. 128. 63 C.F.R. § 51164. cfm. 129. Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat. 594. 95. 42 U.S.C. § 300h(d)(1) (2006). 130. EPA, Permitting Guidance for Oil and Gas Hydraulic Fracturing 96. Legal Envtl. Assistance Found., Inc. v. EPA (LEAF I), 118 F.3d 1467, Activities Using Diesel Fuels - Draft: Underground Injection 1470 (11th Cir. 1997). Control Program Guidance #84 (2012), http://water.epa.gov/ 97. Adam Vann et al., Hydraulic Fracturing: Selected Legal Issues, US type/groundwater/uic/class2/hydraulicfracturing/upload/ Library of Congress, Congressional Research Service, 26 Sept. hfdieselfuelsguidance.pdf. 2014., p.1-2. 131. 40 C.F.R. 60. 98. Legal Envtl. Assistance Found., Inc. v. EPA (LEAF I), 118 F.3d 1467, 132. Id. 1470 (11th Cir. 1997). 133. EPA, Information for States on Attainment Planning, Permitting and 99. LEAF I, 118 F.3d at 1471. Compliance, (2012), http://www.epa.gov/airquality/oilandgas/ 100. Id. pdfs/20120419infoStates.pdf. 101. Id. at 1477. 134. EPA, Reduced Emissions Completions for Hydraulically Fractured Natural Gas Wells, (2011), http://www.epa.gov/gasstar/ 102. Legal Envt’l Assist. Found., Inc. v. United States Envt’l Protection documents/reduced_emissions&uscore;completions.pdf. Agency (LEAF II), 276 F.3d 1254, 1257 (11th Cir. 2001). 135. EPA, Draft Plan to Study the Potential Impacts of Hydraulic Fracturing LEAF II 103. , 276 F.3d at 1257. on Drinking Water Resources (2011), available at http://www2. 104. Angela C. Cupas, The Not-So-Safe Drinking Water Act: Why We Must epa.gov/hfstudy/draft-plan-study-potential-impacts-hydraulic- Regulate Hydraulic Fracturing at the Federal Level, 33 Wm. & Mary fracturing-drinking-waterresourcesfebruary-7. Envtl. L. Pol’y Rev . 605, 619 (2009). 136. EPA, Assessment of the Potential Impacts of Hydraulic Fracturing 105. LEAF II, 276 F.3d 1254, 1257 (11th Cir. 2001). for Oil and Gas on Drinking Water Resources (2015), available at 106. Id. at 1256. https://cfpub.epa.gov/ncea/hfstudy/recorddisplay.cfm?deid= 244651. 107. LEAF II, 276 F.3d 1253, 1263 (11th Cir. 2001). 137. N.Y. Envtl. Conserv. Law § 23-0303. 108. Id. at 1260. 138. Thomas Kaplan, Citing Health Risks, Cuomo Bans Fracking in 109. Id.at 1264. New York State, N.Y. Times, Dec 17, 2014, http://www.nytimes. 110. See id. at 1265. com/2014/12/18/nyregion/cuomo-to-ban-fracking-in-new-york- state-citing-health-risks.html. 111. Angela C. Cupas, The Not-So-Safe Drinking Water Act: Why We Must Regulate Hydraulic Fracturing at the Federal Level, 33 Wm. & Mary 139. Id. Envtl. L. Pol’y Rev. 605, 621 (2009). 140. Wallach v. Town of Dryden, 23 N.Y.3d 728 (2014). 112. Id. 141. See id. 113. Mary Tiemann & Adam Vann, Hydraulic Fracturing and Safe 142. N.Y. Const., art. IX, § 2(c)(ii). Drinking Water Act Regulatory Issues, Cong. Research Serv. 19 (2013), http:// www.fas.org/sgp/crs/misc/R41760.pdf. 143. Anschutz Exploration Corp. v. Town of Dryden, 940 N.Y.S.2d 458 (2014); Cooperstown Holstein Corp. v. Town of Middlefield, 943 114. Fractured: The Road to the New EPA “Fracking” Study, N.Y.S.2d 722 (2014). Marten Law, Sept. 17, 2010, http://www.martenlaw.com/ newsletter/20100917-new-epa-fracking-study. 144. Wallach v. Town of Dryden, 23 N.Y.3d 728 (2014). Id. 115. Mary Tiemann & Adam Vann, Hydraulic Fracturing and Safe 145. at 754. Drinking Water Act Regulatory Issues, Cong. Research Serv. 19 146. Id. (2013), http:// www.fas.org/sgp/crs/misc/R41760.pdf. 147. Id. Id. 116. 148. Thomas Kaplan, Citing Health Risks, Cuomo Bans Fracking in 117. Angela C. Cupas, The Not-So-Safe Drinking Water Act: Why We Must New York State, N.Y. Times, Dec 17, 2014, http://www.nytimes. Regulate Hydraulic Fracturing at the Federal Level, 33 Wm. & Mary com/2014/12/18/nyregion/cuomo-to-ban-fracking-in-new-york- Envtl. L. Pol’y Rev. 605, 621 (2009). state-citing-health-risks.html. 118. Id. 149. See id.

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 67 150. New York State Department of Health, A Public Health Review of High Volume Hydraulic Fracturing for Shale Gas Development, http:// 186. Id. www.nytimes.com/interactive/2014/12/18/nyregion/new-york- 187. Jack Healy, Heavyweight Response to Local Fracking Bans, N.Y. state-fracking-report.html. Times, Jan. 3, 2015, http://www.nytimes.com/2015/01/04/us/ 151. 58 Pa.C.S. §§ 2301–3504. heavyweight-response-to-local-fracking-bans.html. 152. Id. 188. Id. 153. Robinson Twp., Washington Cnty. v. Com., 83 A.3d 901 (Pa. 2013). 189. Id. 154. Id. 190. Thomas Kaplan, Citing Health Risks, Cuomo Bans Fracking in 155. Id. New York State, N.Y. Times, Dec 17, 2014, http://www.nytimes. com/2014/12/18/nyregion/cuomo-to-ban-fracking-in-new-york- 156. Id. state-citing-health-risks.html. 157. Id. at 1000. 191. FRAC Act, H.R. 1084, 112th Cong. (2011). 158. Pa.C.S. art. I, § 27. 192. FRAC Act, S. 587, 112th Cong. (2011). 159. Robinson Twp., Washington Cnty. v. Com., 83 A.3d 901 (Pa. 2013). 193. FRAC Act, H.R. 1084, 112th Cong. § 2(a) (2011); FRAC Act, S. 587, 160. Eric Sando, Placing Physicians between Scylla and Charydis 112th Cong. § 2(a) (2011). Chemical Disclosure Law Requiring Health Professionals to Sign 194. New York State Department of Health, A Public Health Review of Confidentiality Agreement Creates Risk of Liability for Physicians High Volume Hydraulic Fracturing for Shale Gas Development, http:// and Impedes Protection of Public Health, 6 Drexel L. Rev. 215, 226 www.nytimes.com/interactive/2014/12/18/nyregion/new-york- (2013). state-fracking-report.html. 161. Colorado Oil and Gas Ass’n v. City of Longmont, 2014 WL 3690665 195. FRAC Act, H. R. 1084, 112th Cong. § 2(b) (2011); FRAC Act, § 587, (Colo. Dist. Ct. 2014). 112th Cong. § 2(b) (2011). 162. Id. at 7. 196. Katie Colaneri & Susan Phillips, Commonwealth Court throws out 163. Id. at 14. several challenges to Act 13, including ‘doctor gag rule’, NPR, July 17, 2014, http://stateimpact.npr.org/pennsylvania/2014/07/17/ 164. See id. at 12. commonwealth-court-throws-out-several-challenges-to-act-13- 165. Voss v. Lundvall Bros., 830 P.2d 1061 (Colo. 1992). including-doctor-gag-rule-updated/. 166. Id. 197. Coral Davenport, New Federal Rules Are Set for Fracking, N.Y. 167. See id. Times, March 20, 2015, http://www.nytimes.com/2015/03/21/ us/politics/obama-administration-unveils-federal-fracking- 168. City of Longmont v. Colo. Oil and Gas Ass’n, 369 P.3d 573, 2016 C.O. regulations.html. 29 (Colo. 2016). 198. BLM, Interior Department Releases Final Rule to Support Safe, 169. Town of Frederick v. North American Resources Company, 60 P.3d Responsible Hydraulic Fracturing Activities on Public and Tribal 758, 760 (Colo. App. 2002). Lands, March 20, 2015, http://www.blm.gov/wo/st/en/info/ 170. Colo. Code Regs. §404-1:205A(b)(2)(B)-(C),(d). newsroom/2015/march/nr_03_20_2015.html. 171. Id. 199. Coral Davenport, New Federal Rules Are Set for Fracking, N.Y. Times, March 20, 2015, http://www.nytimes.com/2015/03/21/ 172. Id. us/politics/obama-administration-unveils-federal-fracking- 173. See id. regulations.html. 174. Id. 200. See id. 175. Id. at 9. 201. Id. 176. See id. 202. Joby Warrick, Obama administration tightens federal rules on 177. Id. oil and gas fracking, Wash. Post, March 20, 2015, http:// www.washingtonpost.com/news/energy-environment/ 178. Becky Oskin, Fracking Led to Ohio Earthquakes, Live Science, wp/2015/03/20/obama-administration-tightens-rules-on-oil-and- January 05, 2015, http://www.livescience.com/49326-fracking- gas-fracking/. caused-ohio-earthquakes.html. 203. Steve Horn, Obama Climate Plan Touts Gas Fracking As “Transition 179. Jim Malewitz , Dissecting Denton: How a Texas City Banned Fuel,” Doubling Down on Methane Risk, DeSmog Blog, June 25, 2013, Fracking, Texas Tribune, Dec. 15, 2014, http://www.texastribune. http://desmogblog.com/2013/06/25/obama-climate-plan-touts- org/2014/12/15/dissecting-denton-how-texas-city-baned- fracking-transition-fuel-doubling-down-methane-risk. fracking/. 180. Id. Ahmed Javaid is a recent graduate of the Fordham 181. Cause No. 14-08933-431, Texas Oil and Gas Association v. City of University School of Law in New York City. He worked Denton. with the Community Fracking Defense Project at the 182. Id. Natural Resources Defense Council. Mr. Javaid won 183. See id. 2nd place in the Environmental Law Section’s 2015 Pro- 184. R.R. Comm’n of Tex, Sunset Advisory Commission Staff Report 33 fessor William R. Ginsberg Memorial Essay Contest for (2010), http://images.bimedia.net/documents/rct_sr.pdf. this article. Address correspondence to Ahmed Javaid, 185. Jim Malewitz, Senate Committee Advances “Denton Fracking Bill,” 2114 Clove Road, Staten Island, NY 10305. E-mail: aja- Texas Tribune, March 24, 2015, http://www.texastribune. [email protected]. Phone: 347-342-6928. org/2015/03/24/senate-committee-advances-denton-fracking- bill/.

68 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 Where Did All of the Fields Go? By Nick Zapp

The loss of farmland each year due to development farm in a variety of industries and services, such as food in New York State is astounding. Yet, agriculture remains processing, trucking and tourism.”8 More importantly, an important part of the local economy and is essential in “farms protect open space and improve public health by providing local food to New York residents. Many land- meeting the rising demand for nutritious, locally grown use protective measures that have been put in place such food.”9 as large minimal lot-size zoning and agricultural districts In 2010, New York ranked second in the nation for have failed to slow down the rate of farmland lost each 10 year. Conservation easements are a vital protective tool, apple, wine, maple syrup, and cabbage production. but they require lots of private and public funding. This In regards to milk production, New York was the funding is necessary in order to ensure farmland for fourth-largest producer and ranked towards the top in cottage cheese, sour cream, yogurt, and Italian cheese future generations. Before it is too late, New York needs 11 to follow the lead of states such as Pennsylvania, which production. New York also ranked towards the top has shown an overwhelming commitment to protecting in 2010 in the production of corn silage, floriculture, vital farmland. sweet corn, grapes, onions, snap beans, squash, and pumpkins.12 It is important to point out that most of I. Introduction the agricultural production comes from every region throughout the state including the Finger Lakes, North Every minute, the United States loses two acres of Country, Central New York, Southern Tier, Western New prime farmland to development.1 This farmland is being York, Capital District, Long Island, Hudson Valley, and replaced by homes placed on large lots of land, which the Mohawk Valley.13 on average total 10 acres per house.2 New York is among the list of states that have lost the greatest percentage of By being spread across the state, farming provides valuable farmland due to this development.3 Between fiscal stability to each of these regions.14 Many areas 1997 and 2007, the amount of farmland declined by 7.9 depend on the tourist industry to survive and agricultural percent, totaling a loss of 613,500 acres.4 Yet, agriculture lands represent an essential ingredient in attracting remains one of the most important economic sectors tourists by helping shape scenic byways.15 Agricultural in New York State.5 To stall this development, various land also demands minimal public infrastructure and conservation efforts at the federal, state, and local level requires minimal governmental services.16 Recent studies have been used such as the formation of agricultural show that “farm land in rural communities pays more to districts and the purchasing of conservation easements.6 local governments in property taxes than it costs localities in the provision of municipal services.”17 Therefore, This article discusses the current agricultural farmland is important for the local tax base as well. protective measures being taken in New York State and evaluates their effectiveness. Many of the efforts III. Development Pressure put forth have not been stringent enough, which has led to the loss of vital agricultural land and ecological Much of the New York’s productive farmland is located very close to development locations, which poses habitats. Statewide there has been a lack of government 18 funding to secure conservation easements combined a significant problem. Since the 1960s, much of the net population growth has occurred in open agricultural with inconsistent local protective measures. Farmland 19 protection needs to be put front and center on the New areas. All but four of New York’s 62 counties are York agenda before it is too late. A unified statewide effort urban influenced, which includes agricultural land is necessary to preserve farmland for future generations, “‘subject to urban pressures, including conversion of which includes bolstered funding for conservation farmland to non-agricultural uses and economically easements designed to keep farmland in production. risky conflicts with nearby residential and commercial land uses.’”20 This pattern is common throughout the II. The Importance of Agriculture in New York United States where 91 percent of our fruits, 78 percent of State our vegetables, 67 percent of our dairy products, and 54 percent of our poultry and eggs are produced in counties The statistics show that agriculture is an important subject to urban influences.21 part of New York’s economy. Based on a recent report from Thomas DiNapoli, the New York State Comptroller, This urban influence has been described as “New York State is a leading agricultural state with 36,300 “impermanence syndrome” where pressure is put farms that produced $4.7 billion in products in 2010.”7 on farmers from urban and suburban sprawl.22 Also, The report goes onto note, “While farming in New York farmers in New York pay some of the highest per acre is mainly a small, family business, its economic impact tax rates than any agricultural state, exceeding the is great [as it] supports thousands of jobs beyond the net farm income.23 Therefore, rising taxes, and low

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 69 profitability, combined with an urban influence, result special ad valorem levies or other rates or fees in certain in farmers selling out to subdividers as the solution.24 improvement districts or benefit areas.”43 As fewer farms remain, farmers have less political and social support, resulting in more farms succumbing to It is required that local governments when forming approaching city dwellers.25 comprehensive plans and local laws, ordinances, rules or regulations do so in such a manner that fits “the intent of Another contributor to the development of farmland the Agricultural Districts Law and does not unreasonably is the increased age of farmers.26 In New York State, the restrict or regulate farm operations.”44 Also, there is a average age of a farmer is 57, which is 17 years older than condition for specific planning and zoning actions to the average American worker.27 As these farmers age out include an agricultural data statement when impacting of the workforce, much of the farmland throughout New a farm operation within an agricultural district or on York and the United States will either transition to the lands within hundred feet of a farm operation within an next generation or lose out to developmental pressure.28 agricultural district.45 This is so that the review agency Oftentimes, speculators purchase farmland sensing can evaluate possible impacts of the proposed action on that local officials will welcome more intense land uses, the functioning of the farm operation.46 along with the higher gross property tax receipts and employment opportunities.29 Speculators “also assume The law establishes a land classification system, which assigns agricultural assessment values to qualified that as farmland is converted to other uses, the public 47 sector will willingly provide the new developments with properties both in and outside the district. It also creates a process for review and deters people from filing private the public services and infrastructure they ultimately 48 demand.”30 nuisance lawsuits due to an agricultural practice. In addition, it provides for advisory opinions as to whether IV. Agricultural Districts particular land uses can be considered agricultural in nature and requires disclosure to prospective grantees In 1968, the Agricultural Districts Law in New York of real property that the property is in an agricultural State was first adopted.31 Article 25-AA of New York’s district.49 Agriculture and Markets Law provides the majority of the State’s farmland and farming protection law.32 The local government plays an instrumental role, The legislative intent of the law states, “The socio- as the “primary responsibility for the creation, review economic vitality of agriculture in this state is essential and management of the State’s agricultural districts lies to the economic stability and growth of many local with the counties and their legislative bodies.”50 The communities and the state as a whole.”33 It goes on to Agricultural Districts Law is designed to provide a locally note, “It is, therefore, the declared policy of the state to initiated tool for the protection and enhancement of New conserve, protect and encourage the development and York’s farmland.51 This is in line with the legislative improvement of its agricultural land for production of intent discussed above aimed at preserving farmland as food and other agricultural products [and to] provide an economic and environmental resource. needed open spaces for clean air sheds, as well as for aesthetic purposes.”34 V. Conservation Easements Permitted by the law is a creation of a farmland A conservation easement is another option to protect protection board, which advises the county legislature farmland from development. A conservation easement is a voluntary restriction placed on the landowner’s and works together with the planning board in relation 52 to agricultural district establishment, modification, property to protect a natural resource. In the farming continuation, or termination.35 The farmland protection context, these easements are usually agreements between farmers and qualified conservation organizations board has granted the power to assess and approve 53 county agricultural and farmland protection plans.36 restricting the land to agriculture and open-space uses. These easements prevent development from occurring Most importantly, the law establishes the creation and they run with the land if conveyed by a recordable of agricultural districts by either the commissioner37 or deed.54 The restrictions can be attached to the land in by the initiative of farm owners.38 There are a multitude perpetuity or for a specific period of time depending on of benefits to farm operations that fall within a certified the agreement.55 Also, farmers are able to hold title in the agricultural district.39 The primary advantages include land and convey that interest if they wish to do so, with the mandate that State agencies must encourage through the restriction of the easement still in place.56 policy the maintenance of viable farming in these districts.40 Also, there is a limitation on the exercise of In October of 2014, Governor Cuomo announced that $17.6 million would be used to provide conservation eminent domain and the use of public funds for public 57 acquisitions in these areas.41 There is a restriction on easements in New York State. The funds were provided forming solid waste management facilities on land that is to preserve twenty-one farms in twelve counties used for agricultural production.42 Additionally, there is throughout the state. Cuomo was quoted as saying, a “limitation on the power to impose benefit assessments, “Farming supports jobs, businesses and economic activity

70 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 in communities across New York, making it a major party However, these programs are overly complicated and of this state’s economy, as well a rich part of our heritage” controversial for rural municipalities throughout New and “[a]s interest in our New York grown food and York where there is limited planning experience.76 beverage continues to rise, this funding will ensure that Therefore, this has been used very little.77 this farmland will be preserved and a part of this critically important industry for generations to come.” VI. Right to Farm Law New York has adopted a right-to-farm law that The funds were made possible through the Farmland provides protection to farmers against nuisance suits Protection Implementation Program administered by as long as they have “agricultural practices [that] are the New York State Department of Agriculture and sound.”78 Practices that are considered “sound” include Markets (NYSDAM).58 In total, 59,000 acres in New York “practices necessary for the on-farm production, State have been protected via $195 million provided preparation, and marketing of agricultural commodities” for farmland protection projects.59 However, as Senate that are approved by the commissioner.79 Examples of Agriculture Chair Senator Patty Ritchie points out, practices that are considered sound include operation “roughly 500,000 acres of farmland [have been] lost of farm equipment, application of chemicals to protect to development in New York over the past decade.”60 crops, and the direct sale of agricultural commodities.80 NYSDAM issues a request for applications and the 61 proposals are ranked and scored. Priority is given to VII. Agricultural Zoning projects that preserve viable farmland that are up against high development or conversion pressure.62 Agricultural zoning is another form of protection that regulates the manner and intensity of land use Through the NYSDAM program, priority is also development that takes place in a community.81 Local given to land that buffers significant public natural governments divide the municipality into various resources.63 Some of the other criteria that the program districts and control the construction and use of buildings takes into account include the total number of acres that within each district.82 In order to maintain a rural are to be preserved, along with the soil quantity.64 Also, character, some communities might create a zone that the program looks at the percentage of total farm acreage allows minimal development and then places a large available for crop production and the proximity to other portion of its land within this zone.83 conserved farms.65 Other factors include the level of farm management demonstrated by the current landowner and The reasoning behind agricultural zoning is to the likelihood of the property’s succession as a farm if protect farmland from “incompatible” uses that would ownership changes.66 negatively impact the long-term economic viability of the locale.84 Agricultural zoning is designed to keep non- Oftentimes, the funds from the Farmland Protection farm neighbors separate from farming, which minimizes Implementation Program are used to assist land trust conflicts and potential lawsuits.85 Also, by keeping organizations with purchasing conservation easements.67 critical masses of land from being developed the farm Examples of non-profit conservation organizations that can perform its activities efficiently.86 Prime farm soil protect farmland are American Farmland Trust, Scenic is another focus with agricultural zoning because the Hudson, Inc., and the Franklin Land Trust programs.68 success of many farm operations is influenced by the Farmers may donate the conservation easement to quality of the soil.87 the preservation entity or the entity may purchase the 69 It is important to point out that in New York, land development rights. The farmer receives the difference 88 between the value of the land without the restriction and is situated in either a city or a town. Within each town the value of the land with the restriction in place, and there are political subdivisions known as villages, which beneficial tax consequences come with it as well.70 The are municipal corporations that have independent planning and zoning jurisdiction from the towns that federal income tax code along with New York State law 89 encourage farmers to donate the development rights to they are a part of. Village residents pay taxes to both non-profit land trusts.71 Once the development rights are the village and the town, but the land is governed by the village government.90 A city is a separate municipality donated the land has no value beyond its agricultural use, 91 resulting in the benefit of reduced real property and estate with its own zoning and planning. All cities and towns tax assessments.72 are grouped into counties, but counties only serve in an advisory capacity rather than having planning or Another approach involves the transfer of zoning power.92 Active farmland throughout New York is development rights, but it is used quite infrequently.73 predominately located within towns rather than villages This is where development rights of productive farmland or cities; therefore, farmland protection zoning is a are transferred to zones that are more appropriate technique exclusively found in town zoning laws.93 for development.74 Property owners “in appropriate One zoning technique used is large minimum lot- areas, or receiving districts” are given the opportunity 94 “to purchase development rights from land owners in size zoning. This type of zoning limits the amount of sending districts, such as productive agricultural areas.”75 dwelling units that can be built in an agricultural zone by

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 71 maintaining a large minimal lot size.95 No parcel can be is preserved.113 The Town of Goshen, New York has subdivided from an existing farm unless it is larger than prohibited urban sprawl development by requiring the lot size requirement.96 The idea behind this form of all large developments to be clustered, with at least 50 zoning is to price the cost of such development outside percent of the land to be saved for agriculture or other the range of affordable housing for most consumers, open space uses.114 Overall, the zoning that exists to and to maintain the viability of the farmland even if it is protect farmland varies depending on if there is any subdivided.97 The minimum acreage requirement usually unified culture of farming or land preservation in the reflects the size of a farm field that is economically viable area.115 Oftentimes the pressure of development can alter for continued agricultural use.98 For example, towns who holds political power in town, which can result in throughout New York have set the minimal lot size at the development of land.116 around two to five acres.99 VIII. Evaluating the Protective Measures An alternative to minimal lot-size zoning is the density average approach, which sets a fixed density A. Agricultural Zoning for permitted residences within an agricultural zone.100 One of the benefits of agricultural zoning is that This sets the desired number of residents per parcel, and it can be used to protect large tracts of land if used when coupled with a maximum lot size requirement for effectively.117 This can also be done at a relatively cheap new residential development it can retain larger blocks price, where the majority of the cost comes from fees paid of farmland while limiting development.101 Sliding scale to a consulting firm.118 However, there are many faults zoning sets the desired number of residential densities with agricultural zoning and it appears to be largely and subdivisions depending on the original size of ineffective due the fact it can be easily “un-done.”119 the parcel, rather than setting a fixed ratio for all size Agricultural zoning is largely dependent on the current parcels.102 Therefore, fewer acres would be required political climate of the community.120 It is “merely per residential unit or subdivision for smaller parcels a policy statement of the current township board of in comparison to parcels that are much larger.103 This is supervisors” and any change politically can result in the designed to retain larger farm parcels, while at the same zoning system being repealed or completely replaced by time limiting the amount of residential development.104 a weaker system.121 For instance, by changing the zoning on a specific parcel, township supervisors can severely Towns may also create overlay zones or districts, alter the integrity of an agricultural zoning system.122 The which can institute additional development standards zoning board of appeals (ZBA) within a town may grant or establish incentives for parcels that have certain property owners variances from zoning ordinances under 105 characteristics. Agricultural overlay zones often certain conditions, which is a way around a protective apply to parcels that meet the minimum parcel size zoning ordinance.123 requirement, have a high quality of soil, have the capacity for continued agricultural use, and that are Critics hold that agricultural zoning does not have New York State-certified agricultural districts.106 Setback the support of New York’s farmers due to its harsh requirements help influence the location of newly built effects.124 In many instances the land is saved, but the buildings on approved lots, and large setbacks from the farmer is lost.125 By mandating agricultural use, this road can help maintain a “rural character” within the in essence removes the equity and credit value of the town.107 land, which limits the amount of equity a farmer has to borrow against to sustain the farming operation.126 Cluster zoning is an approach that is used to Another problem is that setting minimum lot sizes may encourage the concentration of new residences in a result in parcels of land that are “too big to mow but too portion of a property, while keeping a large piece of small to farm.”127 Critics also hold that minimum lot size 108 the property undeveloped. The goal with this form zoning reduces the density of new development, but it of zoning is to produce subdivisions in wooded areas does little to protect land for farming because larger lot or less productive soils, while keeping open areas sizes consume available land resources more quickly.128 109 with more productive acreage available for farming. Therefore, this has had the effect of accelerating the Incentive zoning offers bonuses to developers if they conversion of farmland and has had little success promote “open space” and go along with the goals of throughout New York.129 a community.110 It can also be used to encourage the conservation of natural or agricultural lands.111 Setback requirements within zoning ordinances lead to houses being built in the middle of fields rather than As an example, the Town of Red Hook, New York on the edge, which makes the field essentially useless for uses low-density zoning combined with mandatory the farmer.130 Some hold that cluster subdivisions can 112 cluster to promote farmland preservation. The Town be at odds with farming in that the majority of places of Warwick, New York has reduced its rural densities that use it allow a high density of one dwelling per two from two acres to four acres per unit and implemented acres, which results in clustered sprawl.131 Therefore, the a mandatory cluster provision that allows development remaining farmland will likely be used for low-value at a three-acre density as long as 50 percent of the land

72 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 crops such as hay because the use of manure as fertilizer agricultural use completely by purchasers with deeper does not mix well with nonfarm neighbors.132 wallets.151 Easements are successful at preventing farms from becoming shopping malls and subdivisions; B. Agricultural Districts however, nothing stops “Wall Street bankers from turning In regards to New York’s agricultural districts them into private getaways, with price tags to match.”152 program there are flaws as well.133 Some hold that In other words, conservation easements are designed it is effective at protecting current farming, but it is to protect farmland from residential and commercial not designed to control the influence of real estate development, but they are not designed to prevent non- speculation.134 Outside of the districts the state lost farmers from purchasing the protected farmland as over 700,000 acres of farmland and about 10,000 farms estates.153 Nearly one-quarter of the land that is protected from 1982 to 1991.135 The program does little to stop the has gone out of production due to it being purchased by a pressure “to sell farmland at relatively high prices to non-farmer.154 This is a troubling problem given that one speculators who anticipate receiving local approval for of the major goals of agricultural conservation easements nonagricultural uses.”136 The agricultural district hardly is to help support the business of farming and conserve prevents nonagricultural development from occurring the productive soils for future generations of farmers.155 within the districts, which can lead to its demise as an agricultural district altogether.137 Even with the limited amount of funds available, conservation easements appear to be the most concrete Each farm unit within an agricultural district that is solution to preserving farmland in New York.156 These developed results in heightened difficulty for a farmer benefits include permanent protection of farmland once to conduct farm operations.138 This in turn leads to the agreement is signed, which eliminates the possibility neighbors complaining about “noise, odor, dust, and of development that goes against the easement.157 farm equipment slowing down the local roads.”139 Also, the programs are voluntary; therefore, the parties Also, increased population leads to trespass problems involved are usually much happier about the outcome.158 and vandalism, as well as congestion on rural roads.140 Farmers that are strapped for cash are able to transform These aggravating circumstances along with real land assets into liquid assets that can be used for other estate speculation pressure farmers into selling their purposes that can positively impact the operation of the farmland.141 This ultimately changes the character of the farm.159 At the same time, a variety of agricultural and area, resulting in the county having grounds to terminate natural resources are protected and the land is made the agricultural district.142 Another problem is that more affordable for farmers.160 besides for agricultural districts, many counties have Agricultural easements are also able to get around made very little preservation efforts, which lowers the 161 probability of success.143 the political problems that face local zoning laws. The purchasing of development rights “presents an C. Conservation Easements opportunity to limit the influence of politics by placing 162 Purchasing development rights from farmers via legal restrictions on parcels in perpetuity.” Another conservation easements appears to be the best option benefit is that the placement of the conservation easement on the property can help the farmer keep the land in the to preserve farmland; however, there are drawbacks. 163 For instance, public and non-profit funds are limited, family due to its effects on estate and property taxes. making it difficult to acquire large amounts of land Once the restriction is in place the value of the property is decreased, which lowers the value of the estate for tax where speculative pressure has driven up the price of real 164 estate.144 The developmental pressure drives up the price purposes. Some farms are even exempt from estate tax after the easement if it causes the value of the estate to fall of the land, making it more costly for programs to pay the 165 difference of the land without the conservation easement below the minimum required for the tax. Decreasing in place and with the conservation easement in place.145 the total of estate taxes that must be paid allows the farmer to keep the land rather than having to sell part of Therefore, such programs have only been able to preserve 166 a small percentage of the private land in rural America, it to pay off the taxes. Also, in New York, land under while the rest is still subject to developmental pressure.146 a conservation easement is treated for tax purposes as if it were in an agricultural district, resulting in a lower The demand for the programs is far greater than the 167 funds.147 Yet at the same time, there are important farms valuation. 148 that choose not to participate. Another pitfall is that IX. Successful State Programs the sale of the development rights can be complex and time-consuming, which is a turnoff to farmers.149 Also, A. Pennsylvania once the restriction is in place it requires an ongoing Pennsylvania takes agricultural preservation very investment of time and resources to monitor and enforce seriously. On October 16, 2014, it was announced the conservation easement.150 that Pennsylvania had protected 500,079 acres of farmland across the state via $1.3 billion in funding.168 Unsurprisingly, land that is preserved via The Pennsylvania farmland preservation program, conservation easements is being taken away from

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 73 established in 1988, includes 57 participating counties B. Maryland 169 and 4,704 farms. Pennsylvania is the national In the 1960s, Maryland developed Program Open leader in number of farms preserved and total Space in order to fund state and local parks and 170 acreage preserved. This is quite an accomplishment conservation areas, as well as farm and forestlands.189 considering the development pressures faced by farmers Funding comes from the implementation of a transfer in the state. tax of 0.5 percent on every real estate transaction in the 190 Since 2007 Pennsylvania has lost 100,000 acres of state. Program Open Space funds the preservation of farmland using agricultural easements via the Maryland farmland and is down to 7.7 million acres in agricultural 191 production despite having some of the nation’s most Agricultural Land Preservation Foundation. The productive non-irrigated soil.171 Agriculture is the money raised is “intended to keep pace with rising land costs and the pace of development and with the state’s largest industry with $7.4 billion worth of loss of open space and farmland.”192 Also, resources are products sold in 2012.172 One in seven jobs in the state leveraged “by partnering with non-profit organizations is related to agriculture.173 Many of the residents in and public agencies,” which “accomplish[es] more for the state recognize the importance of agriculture to Maryland taxpayers with less.”193 the state and national economy, which has driven the preservation efforts.174 Part of the “program’s success The Maryland Agricultural Land Preservation is due to widespread support from taxpayers who, in a Foundation is one of the nation’s leaders in agricultural statewide vote, fund bond issues that put Pennsylvania land preservation.194 Public investment of over $645 on the fast track to preserving farmland.”175 Also, as million has been used to preserve farmland in each Pennsylvania Agriculture Secretary George Greig points of Maryland’s 23 counties.195 By the end of 2014, the out, “Preserving farmland requires a number of partners Foundation had purchased easements on a total of 2,154 including landowners, county program administrators, properties, permanently protecting 292,357 acres.196 our state staff and the volunteer board” and “[b]ecause Carroll County, Maryland’s program is one of the top of this teamwork, we’re ensuring the continued success five most successful farmland preservation programs in of the cornerstone of our state’s economy and keeping America.197 More than 65,000 acres have been protected Pennsylvania growing for our next agriculturalists.”176 with perpetual easements due in part to the “county-wide desire to preserve the farming way of life and support In 1988, the Governor of Pennsylvania signed Act agricultural industries.”198 149 into law to form a Statewide Farmland Preservation Program.177 This created the opportunity for townships Despite Maryland’s Open Space Program success, it to create agricultural security areas and for the county has faced funding problems due to nearly $1 billion of and the state to purchase easements within those the tax revenue being diverted to other spending since its 199 areas.178 These areas provide protection for farming inception. Maryland Governor Larry Hogan proposed operations via right-to-farm laws and makes the farms a budget for 2015, which would “cut $115 million in funds 200 eligible to participate in the Conservation Easement for farmers, parks and other programs.” This diversion Purchase Program.179 Lancaster County has been one of of the money intended for the Open Space Program the larger beneficiaries of the preservation efforts in the shows its vulnerability, as well as how the program can state.180 This is due to “both the county and the state’s be undercut in an instant. Without the necessary funds, 201 commitment to agricultural land protection.”181 The state less farmland will be protected with easements. and the county share the expensive burden of purchasing X. Conclusion easements.182 For example, in 1995 Lancaster’s commissioners allocated $1 million for easement Farming is an important part of the New York State purchases, while the state farmland preservation fund economy, but farms are facing mounting developmental backed that up with an additional $2.4 million.183 pressure. To date, 59,000 acres of farmland has been protected with conservation easements through the The easements are an important supplement to Farmland Protection Implementation Program and $195 the zoning laws throughout the state.184 They “ensure million in funding.202 This is minuscule in comparison that landowners are fairly treated and that protection to Pennsylvania, which has protected 500,079 acres with is permanent.”185 With state financial backing, counties $1.3 billion of funding,203 as well as Maryland, which has throughout Pennsylvania are able to effectively target protected 292,357 acres with $645 million in funding.204 farmland that is in the crosshairs of development and Also, 59,000 of acreage preserved is minor when prevent it from being converted to non-agricultural compared to the 500,000 of acres of farmland that have use.186 However, this requires a lot of taxpayer money, as been lost in the past decade in New York.205 Conservation well as support from private nonprofit groups.187 Areas easements are the answer to long-term farmland such as Lancaster County can garner such public support protection, but more state funding needs to be funneled because farming is seen as “the single most important towards this effort before all of the prime farmland is component of the local economy.”188 lost to development. Based on the numbers above, it is

74 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 clear that developers with deep wallets are outpacing the 7. Thomas P. DiNapoli, Agriculture by the Numbers: New York conservation efforts being put forth. Farming Is Big Business, 1 (2013), http://www.lifb.com/ Portals/1/Dinapoli.pdf. Another troubling aspect of the farmland being 8. Id. protected throughout New York is that many of 9. Id. the easements do not prevent wealthy non-farming 10. Id. purchasers from buying the land as a private getaway.206 11. Id. Therefore, even though the purchasers do not intend on developing the land, it is taken out of farming 12. Id. at 2. production.207 To combat this problem, some states have 13. Id. at 1–2. enacted stricter conservation easements that limit who 14. John R. Nolon, The Stable Door Is Open: New York’s Statutes to Protect can own the land, which deters sales to non-farmers Farm Land, 67-FEB N.Y. St. B.J. 36 (1995). and keeps farms affordable.208 Both Massachusetts 15. Id. and Vermont have added an Option to Purchase at 16. Id. Agricultural Value (OPAV) to the conservation easements 17. Id. 209 purchased on farmland in each state. This requires 18. Id. that if the land is sold, it has to be at a price that reflects 19. Id. its agricultural value, instead of a price that may be 20. Id. influenced by any non-farming market demand, such 210 21. Fresh Food Grown on the Urban Fringe, American Farmland Trust as rural estates. Also, it gives the easement holder the (2007), http://162.242.222.244/programs/localfood/fresh-food- right to purchase a protected farm at a predetermined grown-on-the-urban-fringe.asp. agricultural value or to assign that right to an entity 22. Sean F. Nolon et al, Preserving Our Heritage: Tools to Cultivate 211 such as a land trust. The option is triggered when the Agricultural Preservation in New York State, 17 Pace L. Rev. 591, 595 protected land is put on the market for sale to purchasers (1997). other than family and qualified farmers.212 Also, the 23. Id. option can be waived if the purchaser demonstrates that 24. Id. 213 he or she intends to keep the land in active farming. 25. Id. As discussed earlier, the agricultural zoning approach 26. Emily Manley, NY Announces $20.5 Million for Farmland Protection, has little to no teeth in keeping farmland protected, New York Environment Report, May 15, 2014, http://www. 214 nyenvironmentreport.com/ny-announces-20-5-million-for- and it is vulnerable to the changing political climate. farmland-protection/. Minimum lot size zoning was intended to create parcels 27. Id. that would discourage development, but in fact it has 28. Id. accelerated the loss of farmland.215 The agricultural district program is essentially toothless as well and does 29. Nolon, supra note 14, at 36. very little in preventing nonagricultural development 30. Id. at 36–37. from occurring within the district.216 Conservation 31. Nolon, supra note 22, at 613. easements supplemented with the OPAV are the best 32. Id. choice in securing farmland for future farmers in New 33. N.Y. Agric. & Mkts. Law § 300 . York State. More state funding has to be put forth before 34. Id. it is too late and all of the prime farmland is converted to 35. N.Y. Agric. & Mkts. Law § 302. developments or estates. Locally grown food is important for the economy and it is a more environmentally friendly 36. Id. option. Funding for conservation easements is a one-time 37. N.Y. Agric. & Mkts. Law § 304-b. investment that ensures long-term food security. New 38. N.Y. Agric. & Mkts. Law § 303. York’s farmers are aging, so now is the time to act. 39. Agricultural Districts Law: A Current Summary, 1 (2014), available at http://www.agriculture.ny.gov/ap/agservices/dis8/ Endnotes Summary-AgrDistrict-Law.pdf. 1. Elizabeth Becker, 2 Farm Acres Lost Per Minute, Study Says, N.Y. 40. Id. Times, Oct. 4, 2002, http://www.nytimes.com/2002/10/04/us/2- 41. Id. farm-acres-lost-per-minute-study-says.html. 42. Id. 2. Id. 43. Id. 3. Id. 44. Id. 4. Thomas P. DiNapoli, The Role of Agriculture in the New York State Economy, 2 (2010), http://www.osc.state.ny.us/reports/ 45. Id. other/agriculture21-2010.pdf. 46. Id. 5. Id. 47. Id. at 2. 6. Jeanne S. White, Beating Plowshares Into Townhouses: The Loss of 48. Id. Farmland and Strategies for Slowing its Conversion to Nonagricultural Uses, 28 Envtl. L. 113 (1998). 49. Id.

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 75 50. Id. 94. Kruft, supra note 81. 51. Id. 95. Id. 52. Nolon, supra note 22, at 597. 96. Id. 53. Id. 97. Id. 54. Id. 98. Haight, supra note 61, at 36. 55. Id. 99. Id. 56. Id. 100. Id. 57. Governor Cuomo Announces $17.6 Million to Protect 6,440 Acres of 101. Id. at 36–37. Farmland Across New York State ny.gov , , October 20, 2014, http:// 102. Id. at 38. www.governor.ny.gov/news/governor-cuomo-announces-176- million-protect-6440-acres-farmland-across-new-york-state. 103. Id. 58. Id. 104. Id. 59. Id. 105. Id. at 39. 60. Id. 106. Id. 61. David Haight, Diane Held. Planning for Agriculture in New York, 107. Id. at 40. American Farmland Trust 51 (2011), http://www.farmlandinfo. 108. Id. org/sites/default/files/P4A_FINAL_lo_res_1-21-11_1.pdf. 109. Id. 62. Id. at 50–51. 110. Id. at 41. 63. Id. 111. Id. 64. Id. 112. Russell, supra note 88. 65. Id. 113. Id. 66. Id. 114. Id. 67. Agricultural and Farmland Protection Program, ny.gov, http://www. agriculture.ny.gov/ap/agservices/farmprotect.html. 115. Id. 68. Nolon, supra note 22, at 598. 116. Id. 69. Id. 117. Kruft, supra note 81. 70. Id. 118. Id. 71. Nolon, supra note 14, at 38. 119. Id. 72. Id. 120. Id. 73. Id. at 37. 121. Id. 74. Id. 122. Id. 75. Id. 123. Haight, supra note 61, at 32. 76. Id. 124. Nolon, supra note 22, at 628. 77. Id. 125. Id. 78. N.Y. Agric. & Mkts. Law § 308 126. Id. 79. Id. 127. Haight, supra note 61, at 36. 80. Id. 128. Id. 81. David Kruft, Agricultural Zoning, The Dickinson School of Law of 129. Id. The Pennsylvania State University (2001), https://pennstatelaw. 130. Id. at 40. psu.edu/_file/aglaw/Agricultural_Zoning.pdf. 131. Id. 82. Id. 132. Id. 83. Id. 133. White, supra note 6, at 124. 84. Id. 134. Id. 85. Id. 135. Id. at 126. 86. Id. 136. Id. 87. Id. 137. Id. at 129. 88. Joel Russell, How Well Has Agricultural Protection Zoning Worked?, 138. Id. American Planning Association (2009), http://www.glynwood. org/files/previous/pdfs/Prac%20Plan%20Ag%20zoning.pdf. 139. Id. 89. Id. 140. Id. 90. Id. 141. Id. 91. Id. 142. Id. 92. Id. 143. Nolon, supra note 22, at 650. 93. Id. 144. Nolon, supra note 14, at 38.

76 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 145. Id. 191. Id. 146. Id. 192. Id. 147. Haight, supra note 61, at 50. 193. Id. 148. Id. 194. Maryland Agricultural Land Preservation Foundation, Maryland. Gov 149. Id. at 51. , April 5, 2015, http://mda.maryland.gov/malpf/Pages/ default.aspx. 150. Id. 195. Id. 151. Lindsey Lusher Shute & Benjamin Shute, Keep Farmland for Id Farmers, N.Y. Times, Sept. 30, 2013, http://www.nytimes. 196. . com/2013/10/01/opinion/keep-farmland-for-farmers.html?_ 197. Agricultural Land Preservation Program, Carroll County r=1&. Government, April 5, 2015, http://ccgovernment.carr.org/ccg/ 152. Id. agpres/. Id 153. Id. 198. . Hogan’s budget doesn’t reflect Maryland’s commitment 154. Id. 199. John Hastings, to conservation, The Baltimore Sun, March 23, 2015, http://www. 155. Haight, supra note 61, at 50. baltimoresun.com/news/opinion/readersrespond/bs-ed-open- 156. Id. space-letter-20150323-story.html. 157. Id. 200. Id. 158. Id. 201. Id. 159. Id. 202. Governor Cuomo Announces $17.6 Million to Protect 6,440 Acres of Farmland Across New York State, supra note 57. 160. Id. 203. McEvoy, supra note 168. 161. White, supra note 6, at 143. 204. Maryland Agricultural Land Preservation Foundation, supra note 194. 162. Id. 205. Governor Cuomo Announces $17.6 Million to Protect 6,440 Acres of 163. Nolon, supra note 22, at 611. Farmland Across New York State, supra note 57. 164. Id. 206. Shute, supra note 151. 165. Id. 207. Id. 166. Id. 208. Id. 167. Id. at 612. 209. Bob Wagner, et al. Does the Option at Agricultural Value Protect 168. Owen McEvoy & Samantha Krepps, Pennsylvania First in Nation to Farmland for Beginning Farmers? Land For Good, 2013, http:// Preserve Half-Million Acres of Prime Farmland, PA.Gov, Oct. 16, 2014, landforgood.org/wp-content/uploads/LFG-Does-The-Option-At- http://wallaby.telicon.com/PA/library/2014/2014101675.HTM. Agricultural-Value.pdf. 169. Id. 210. Id. 170. Id. 211. Id. 171. Id. 212. Id. 172. Id. 213. Id. 173. Id. 214. See supra Section VIII. 174. Id. 215. Id. 175. Id. 216. Id. 176. Id. 177. White, supra note 6, at 140. Nick Zapp is an Associate in the Environmental and 178. Id. Land Use Law Practice Group of McNamee, Lochner, 179. Id. Titus & Williams, P.C. in Albany, New York. He grew up in Columbia County on his family’s small dairy farm. 180. Id. at 141. He graduated from Hobart College in 2013 where he Id 181. . served as the captain of the football team and an eco 182. Id. representative, advocating for sustainable practices on 183. Id. campus. In May of 2016, he graduated from Albany Law 184. Id. at 142. School and was admitted to the Third Department in 185. Id. June after successfully completing the New York Pro 186. Id. Bono Scholars Program. Mr. Zapp won 3rd place in the 187. Id. at 143 Environmental Law Section’s 2015 Professor William R. Ginsberg Memorial Essay Contest with this article. 188. Nolon, supra note 22, at 624. 189. Program Open Space, Partners for Open Space, Apr. 5, 2015, http://www.partnersforopenspace.org/preservation-programs-2/ program-open-space/. 190. Id.

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 77 Addressing Lead Contamination of Drinking Water in New York State By Ria Rana

Currently in New York State, there is a contradictory fragments that have accumulated inside of a pipe.8 These approach to the regulation of lead found in paint as op- fragments get pushed into the water stream, thereby posed to lead found in drinking water. While lead paint increasing lead levels. Furthermore, treating water with has been systematically rooted out through a ban on its corrosion-controlling additives does not fully protect use and the imposition of severe liability and penalties against lead leaching. For instance, if grounded wires for landowners or landlords who fail to abate its use, from an electrical system are attached to the water pipes, regulation and enforcement regarding lead in tap water corrosion can still occur.9 Additives can also contribute has been comparatively lax. Aside from the obvious pub- to other problems such as an overgrowth of algae and lic health implications, this inconsistency has also made weeds in city lakes from excess nutrient and water run- it difficult for practitioners of environmental, real prop- off.10 erty, and toxic tort law to provide sound advice to their clients. In addition to the existence of lead plumbing on private property, compliance with EPA’s Lead and Cop- New York’s Tap Water Has Been Repeatedly per Rule is also an issue. The Lead and Copper Rule Contaminated With Lead (40 C.F.R. Part 141, Subpart I), as stated above, sets a treatment standard of 15 parts per billion for lead in tap Lead contamination in drinking water caught the water.11 However, this is not a health-based standard.12 public’s attention in 2015 when it was discovered that In addition, only 90% of test samples have to comply 6,000 to 12,000 children in Flint, Michigan had been ex- with this standard,13 and neither EPA nor CDC provides posed to dangerously high levels of lead through the specific guidance on how and when to test the water. As city’s drinking water.1 However, in New York, the issue a result, utilities can achieve compliance by selectively of lead-contaminated water predates the Flint water cri- choosing which homes they want to sample.14 Moreover, sis. A review of EPA data reveals that since 2013, 82 pub- because lead in tap water is highest in concentration lic and private drinking water systems throughout the after the water has sat for several hours (for example, state have exceeded the maximum allowable limit of lead first thing in the morning or after one returns home from (15 parts per billion) at least once.2 In addition, follow- work or school),15 test samples can be inaccurate if the ing Flint, it was discovered that 16 schools and daycares faucet had been used shortly prior to testing. Results can across New York, most of which have private water sys- also be manipulated by allowing water to first run for a tems, have supplied to students water with lead in excess prolonged period before collecting samples. of this federally mandated limit.3 This data is particularly concerning because although no amount of lead is safe to Given these issues, one contemplated solution is ingest, lead poisoning is especially harmful to the devel- the enactment of legislation that requires owners of oping brains of young children.4 private property and private water systems to remove lead pipes, fixtures, and faucets from their land. In 2001, In most parts of the state, New York’s municipal Madison, Wisconsin took exactly this step by controver- water treatment plants are generally not the sources of sially passing legislation requiring all property owners lead contamination. Similarly, publicly owned water to replace lead pipes (but not other fixtures) on their lines are also typically not culpable. Congress banned the property.16 It took 11 years and $15.5 million for the construction of lead plumbing for public water utilities city to remove 8,000 lead water pipes, and nearly 6,000 in 1986 under the federal Safe Drinking Water Act, and property owners had to pay an additional $1,300 each on since then utilities have been required to replace publicly their plumbing bills (half of which the city reimbursed).17 owned lead service lines with lead-free lines.5 Today, though, the levels of lead in Madison’s tap wa- However, Congress did not ban the use of lead ter are consistently well below EPA limits.18 Following plumbing on private property. As a result, privately- Madison’s example, Lansing, Michigan is also replacing owned pipes, often containing lead, connect public water privately owned lead plumbing.19 lines on streets to tap faucets inside homes and build- The passage of such legislation in New York would ings.6 Given that lead can leach into tap water at any provide clarity to legal practitioners attempting to navi- point up to its exit from a faucet, the replacement of lead gate this area of law. However, until that happens, attor- plumbing only on public property has thwarted efforts neys must know how to advise clients concerned about to eliminate lead from water. In fact, studies show that lead contamination in their water as well as those con- in the short term, partial pipe replacement can actually cerned about how to protect themselves from liability for worsen the amount of lead present in drinking water.7 such contamination. Partial pipe replacements can physically shake loose lead

78 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 Advising Your Clients fact, lived on the premises. In the absence of controlling As has been discussed, the main source of lead legislation, a court would likely entertain this common- contamination is privately owned lead plumbing that law negligence argument. receives and transports municipal water to homes and Therefore, given the potential for litigation, defense buildings. So far, there have been no guiding cases or ad- attorneys must advise clients to exercise prudence by ministrative decisions in New York against private prop- taking preemptive measures. A property owner is best erty owners for failing to address lead leaching into water protected from liability by electing to replace all lead from their lead plumbing. This may be primarily due plumbing on the property. Many clients are unaware of to the Safe Drinking Water Act’s citizen suit provision, the danger posed by lead plumbing, and given its risk, which does not allow for actions against private parties, a client may be more than willing to replace lead pipes, 20 but only against EPA. fixtures, and faucets with lead-free ones. However, if However, a possibility for a successful suit against such a replacement is too financially burdensome, a private property owners may exist under RCRA. A suit second, cheaper alternative involves the installation of brought under RCRA would have to be grounded in the certified “end of pipe” filtration devices that filter lead 26 argument that once lead leaches from a pipe, it becomes from the water when it leaves the faucet. A third mea- solid waste, permitting application of the statute, specifi- sure involves the implementation of a daily maintenance cally Section 7002(a)(1)(B). RCRA’s Section 7002(a)(1) program that flushes piping prior to the water being 27 (B) allows a plaintiff to file a federal lawsuit against any used each day. These two measures may be used in person if the plaintiff establishes that (1) lead presents an conjunction with each other, and periodic testing of lead imminent and substantial endangerment to human health levels must occur to ensure that lead is being effectively or the environment; (2) lead’s danger stemmed from its removed. As a last resort, if lead levels are too high to be improper handling, treatment, and/or disposal; and (3) removed by filtration devices and regular flushing, it may the property owner’s actions or inactions contributed to be necessary to eliminate the use of tap water and switch 28 such improper handling, treatment and/or disposal.21 to bottled water. On a smaller note, unlike public utilities that are gen- Rather than waiting until a crisis occurs, clients erally protected from negligence claims through the pub- should expeditiously take risk management measures. lic duty doctrine, owners of private water systems could Due to the public’s recently heightened awareness on be sued under common law negligence principles. While the issue, legal practitioners may soon see an increase in over 90% of New York residents are served by municipal the number of plaintiffs seeking legal recourse for lead- water systems, about 1.9 million New York residents use contaminated water. 22 privately owned water systems or wells. In fact, as stat- Endnotes ed above, many New York schools in which high levels 1. Maggie Fox, Flint Water Crisis: Feds Expand Programs to Help Kids of lead were recently found have their own private water Affected by Lead, nbc news (Mar. 2, 2016), http://www.nbcnews. systems.23 Plaintiffs’ attorneys seeking redress for clients com/storyline/flint-water-crisis/flint-water-crisis-feds-expand- aggrieved by private water lead contamination may programs-help-kids-affected-lead-n530556. choose to analogize lead water poisoning to lead paint 2. Mary Esch, Data show 82 New York water systems have exceeded poisoning. As mentioned earlier, a defendant landowner lead limit, washington times (Apr. 9, 2016), http://www. washingtontimes.com/news/2016/apr/9/data-show-82-new- or landlord typically faces severe liability for lead paint york-water-systems-have-exceeded-/. poisoning. Such a defendant is typically liable for the 3. CBS New York/Associated Press, Report: Elevated Lead Levels presence of lead paint if the plaintiff demonstrates that Found In New York, Connecticut Water Systems (Apr. 9, 2016), the defendant had notice of the condition and an opportu- http://newyork.cbslocal.com/2016/04/09/lead-levels-new-york- nity to repair it.24 The plaintiff can establish constructive connecticut/. notice by showing that the defendant knew that the prop- 4. mayo clinic, “Diseases and Conditions, Lead Poisoning” (last erty was constructed before lead-based paint was banned; visited July 14, 2016), http://www.mayoclinic.org/diseases- was aware that paint was peeling on the premises; knew conditions/lead-poisoning/basics/definition/con-20035487. of the hazards of lead-based paint to young children; and 5. EPA, Section 1417 of the Safe Drinking Water Act: Prohibition on Use of Lead Pipes, Solder, and Flux (last visited July 14, 2016), knew that a young child was living on the property at the https://www.epa.gov/dwstandardsregulations/section-1417- 25 time of injury. safe-drinking-water-act-prohibition-use-lead-pipes-solder-and. A plaintiff’s attorney may use this law to apply to a 6. Ctrs. For Disease Control and Prevention, Water (Feb. 18, 2016), https://www.cdc.gov/nceh/lead/tips/water.htm. case of lead-contaminated water. The attorney may be able to reasonably argue that the defendant knew that the 7. Justin St. Clair, et al., Long-Term Behavior of Simulated Partial Lead Service Line Replacements, 33 Envtl. Eng’g Sci. 1, 53–64 (2016). property was built before 1986, when construction of lead plumbing was banned; that those same pipes and fixtures 8. Sheila Kaplan and Corbin Hiar, How an EPA project backfired, endangering drinking water with lead (Aug. 8, 2012), http:// were still in use at the time that plaintiff was lead-poi- investigations.nbcnews.com/_news/2012/08/08/13179335-how- soned; that defendant knew that water from such pipes an-epa-project-backfired-endangering-drinking-water-with-lead. was hazardous for young children; and that a child, in 9. WSSC, Lead Prevention in Drinking Waters FAQs (last visited

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 79 July 14, 2016), https://www.wsscwater.com/lead. Groundwater, and Public Water Supply Systems (last visited July 10. Cheryl Corley, Avoiding A Future Crisis, Madison Removed Lead 14, 2016), http://waterquality.cce.cornell.edu/supply.htm. Water Pipes 15 Years Ago (Mar. 31, 2016), http://www.npr. 23. Dennis Slattery, New York drinking water’s lead levels over legal org/2016/03/31/472567733/avoiding-a-future-crisis-madison- limit in more than 80 supplies, EPA records indicate (Apr. 6, 2016), removed-lead-water-pipes-15-years-ago. N.Y. Daily News, http://www.nydailynews.com/new-york/ 11. 40 C.F.R. Part 141, Subpart I. lead-levels-excessive-80-n-y-drinking-water-systems-epa- article-1.2594697. 12. Rebecca Tenner, Out of Plumb: When Water Treatment Causes Lead Chapman v. Silber Contamination, 117 Envtl. Health Perspectives 12, A542 at A546 24. , 97 N.Y.2d 9 (2001). Dec. 2009, http://ehp.niehs.nih.gov/117-a542/. 25. Id. 13. Id. at A546. 26. Ken Alltucker, What you need to know about water filters to remove lead 14. Id. (Mar. 20, 2016), http://www.usatoday.com/story/ news/nation/2016/03/16/questions-answers-water-filters- 15. Id. lead/81219174/. 16. Cheryl Corley, Avoiding A Future Crisis, Madison Removed Lead 27. Id. Water Pipes 15 Years Ago (Mar. 31, 2016), http://www.npr. Id. org/2016/03/31/472567733/avoiding-a-future-crisis-madison- 28. removed-lead-water-pipes-15-years-ago. 17. Id. Ria Rana is a civil litigation defense attorney prac- 18. Id. ticing in New York City. She can be reached at rira36@ gmail.com. 19. Id. 20. Safe Drinking Water Act, 42 U.S.C. §300j-8. First published in the Environmental Enforcement and 21. Resource Conservation and Recovery Act, §7002(a)(1)(B). Crimes Committee Newsletter, Vol. 16, No. 2 (July 2016): 22. Cornell University, Cooperative Extension, Private Wells, 12-14 by the American Bar Association. Reproduced with per- mission. All rights reserved.

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80 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 Influence of U.S. Law on Development of Environmental Law in Other Countries By Kiki Torpey

The Nixon presidency of the 1970s began a golden U.S., who have traveled and now often operate overseas age of environmentalism in the United States, transferring to offer their services to their counterparts in developing concern for the physical environment into laws enacted nations, and by members of government organizations, in a flurry of activity by the United States Congress, in- such as the EPA, who go abroad to develop environmen- cluding the National Environmental Policy Act of 1969 tal regulatory agencies, and train the personnel that run (NEPA) (mandating consideration of the environmental them.5 Multinational corporations also prefer to work impacts of major federal actions), the Clean Air Act of within reliable environmental regulatory frameworks. As 1970 (regulating air pollution), the Clean Water Act of a result regulators in developing countries are working 1972 (regulating water pollution), the Resource, Conser- with other governments, NGOs, and multinationals to vation and Recovery Act of 1976 (regulating the treat- improve domestic compliance and enforcement.6 ment, storage and disposal of hazardous waste), and the Comprehensive Environmental Response Compensation The experience gained through trial and error in the and Liability Act of 1980 (providing for the investigation U.S. environmental law tradition has proved helpful and remediation of sites contaminated by prior industrial when drafting environmental laws in other jurisdictions; activity), therefore enshrining protection of the environ- lawmakers can leverage the knowledge gained through ment in U.S. law. In the decades that followed, almost the American experience (as well as experiences in the EU all countries have enacted some form of environmental and neighboring countries), and apply them in their own law, in many cases drawing on U.S. environmental laws jurisdictions, modifying the original laws to best fit their and in some countries going beyond the U.S. by embed- individual legal system and political culture. This article ding environmental protections into their constitutions. examines some of the ways that domestic environmental As countries move beyond enactment of modern envi- legislation around the world has been influenced by the ronmental laws and begin the hard work of giving life U.S. experience, with an eye toward increasing aware- to those laws by way of on-the-ground implementation, ness of the need for continued and deeper engagement by many countries have looked to the U.S., both to avoid environmental professionals across borders to strengthen some of the mistakes we have made as we created mod- global environmental protection. ern environmental laws, and to benefit from the lessons The Environmental Impact Assessment we have learned over a period of decades as to how best The most significant example of U.S. environmental to sensibly implement those laws. law influencing the domestic environmental laws of other The adoption of environmental laws pioneered in the countries is the widespread use of the environmental U.S. is a sign of the pervasiveness of globalization and impact statement. Enacted amidst the environmental the growing connection among societies and the increas- concern that emerged out of the 1969 Santa Barbara oil ing sameness of their environmental fates.1 Globalization spill and the publication of Rachel Carson’s seminal tome has facilitated the spread of environmental ills,2 dispers- Silent Spring, NEPA was trailblazing legislation that estab- ing trade so that environmental risks are no longer con- lished the field of environmental law. It was the first and centrated in only certain corners of the globe. The many most significant environmental legislation to be passed in externalities that negatively affect the physical environ- the post-industrial age. NEPA, commonly referred to as mental and public health, such as urban smog or acid the “environmental Magna Carta,” was visionary legisla- rain, are a result of ubiquitous technologies that are used tion that serve to facilitate better decision making—on en- worldwide.3 The U.S. dealt with many of the negative en- vironmental, social and economic fronts. The purpose of vironmental externalities that developing nations are cur- NEPA is, “To declare national policy which will encour- rently facing. Thus, in many cases the U.S. experience has age productive and enjoyable harmony between man and helped to serve as a signpost for the environmental laws his environment; to promote efforts which will prevent or of other countries. As the first nation to widely adopt en- eliminate damage to the environment and biosphere and vironmental protection laws, the U.S. has been seen as a stimulate the health and welfare of man; [and] to enrich nation with prestige and expertise in the development of the understanding of the ecological systems and natural such laws, even with its current failure to forge a politi- resources important to the Nation.”7 Before the passage cal consensus on aggressive climate change action. Leg- of NEPA, environmental concerns were considered an islators in developing countries can learn from the U.S. externality that had little or no bearing on the decision- experience and modify their laws to fit their own specific making process for most projects. However, the passage needs.4 This process of streamlining and conforming the of the law ensured that federal agencies would integrate world’s environmental laws has also been encouraged by environmental concerns into their decision making by representatives from environmental NGOs based in the establishing a Presidential Council on Environmental

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 81 Quality, and mandating the use of Environmental Assess- weaker in less advanced nations such as Albania, Bosnia ments (EA) and, when required, Environmental Impact and Herzegovina and Croatia.15 Countries in Africa have Statements (EIS) in the decision making process of all ac- instituted EIA regulations relatively recently, where en- tions by federal agencies.8 vironmental laws are still developing. The adoption of EIAs in Africa is a result of a number of recent initiatives, The EIS for major projects has become the most sig- 9 including the 1995 African Ministerial Conference, an EIA nificant and influential outcome of the legislation. The stakeholders meeting in Nairobi in 1998 and the efforts of law requires federal agencies to assess the environmental the Pan-African Initiative for Capacity Development and impacts of their actions and to explore any alternatives Linkages for EIA in Africa.16 that exist. The government’s directive to federal planners that they “look before they leap” has had far-reaching No nation’s EIA laws are a carbon-copy of the United impacts, with approximately 34,000 draft and final EISs States; legislators in different jurisdictions have molded prepared. The incorporation of environmental consid- them to fit their respective legal cultures and set of cir- erations into governmental decisions likely prevented cumstances, with varying results. The EIA process is most thousands of proposed actions from causing damage to successful when implemented in nations with a strong the American environment or mitigated such damage.10 track record of public participation, purposeful delibera- The mandated use of EISs by federal agencies was sig- tion of alternatives and real consideration of environ- nificant and groundbreaking; it marked the first time that mental impacts. Though EIAs in developing countries a modern government explicitly codified environmental are based on the same set of principles as ones in more protections into law. Calvert Cliffs’ Coordinating Committee advanced nations, their implementation often falls short Inc. v. Atomic Energy Commission, which was decided by of their intention due to the nascent political infrastruc- the D.C. Circuit Court of Appeals soon after NEPA was ture. They frequently fail to sufficiently consider the enacted, explained the implications that NEPA held for environmental impacts and alternatives and suffer from federal agencies: “NEPA first of all, makes environmental lack of public participation.17 EIAs in developing nations protection a part of the mandate of every federal agency often do not measure up to international standards due and department…It [Atomic Energy Commission] is not to the lack of trained personnel, inadequate budgets and only permitted but compelled to take environmental the concern that a properly executed EIA may restrict values into account. Perhaps the greatest importance of economic development. In South America, for example, NEPA is to require. . .agencies to consider environmental the EIA process has been hindered by political instability, issues just as they consider other matters within their inadequate bureaucracy, economic downturn and exter- mandates.”11 The EIS process created under NEPA, sewed nal debt.18 However, developing nations are beginning environmental considerations into the fabric of the federal to recognize that improving the EIA process will not only government for the first time, establishing the field of diminish conflict or provide a structure for its resolution environmental law and setting the precedent for environ- but also enhance environmental management of sensitive mental laws of the future. projects.19 Since the passage of NEPA, the EIS, often called an Contaminated Site Remediation environmental impact assessment (EIA) outside of the Another feature of U.S. environmental law that has U.S., has swiftly been adopted in over 130 jurisdictions been highly influential in shaping the domestic environ- 12 worldwide. The tool has been widely used in Latin mental policies of other nations is the adoption of con- America for decades. Colombia was one of the first coun- taminated site remediation laws. The principal U.S. leg- tries to incorporate environmental impact assessments islation in this area, the Comprehensive Environmental into its laws in the 1970s, while Mexico adopted environ- Response, Compensation and Liability Act (CERCLA) of mental impact assessments as part of its 1988 general Law 1980, was drafted primarily in response to the 1978 envi- of Ecological Balance and Environmental Protection. EIA ronmental disaster in Love Canal, which established toxic laws were passed in Asia in the 1980s and 1990s. Require- chemical waste sites as a nationwide, and global, issue. ments vary based on the manner in which such legislation is applied. Requirements range from minimal in devel- Love Canal was a neighborhood in Niagara Falls oping nations such as Myanmar to comprehensive and named after William T. Love, a 1890s entrepreneur who stringent in nations such as Japan, Hong Kong, and South envisioned an urban utopia that would service the grow- Korea.13 In China, the region’s economic powerhouse, ing Niagara Falls area with hydroelectricity. Love dug EIA laws were first mandated in the Basic Environmen- a canal on his land, and constructed several streets and tal Protection Law and then expanded in China’s 2003 houses, but the project was abandoned by 1893 follow- Environmental Impact Assessment Law. India adopted ing an economic downturn. The project languished until the use of environmental impact assessments in 1994.14 the 1940s when the Hooker Electrochemical Company, In Europe, EIA legislation was passed in 1985. The tool later known as the Hooker Chemical Company, stumbled is used pervasively across the continent and is enshrined upon the canal when searching for a place to dump the in environmental laws in most countries on the Euro- large amount of chemical waste it was producing. Previ- pean continent, though it is reported to be considerably ously chemical waste had been dumped in the Niagara

82 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 River; however, as the Love Canal area was uninhabited, the Hazardous Waste Law of 1991, is virtually a copy of Hooker was granted permission to dump waste there by RCRA, with the Argentine regulations in the field rep- the Niagara Power and Development Company, which licating U.S. Environmental Protection Agency regula- felt the canal was a more responsible place to deposit tions. The law even includes its internal cross-references the waste. The dumpsite operated until 1953; over that to other sections of the U.S. Federal Register.24 Mexico’s time 21,000 tons of chemicals were deposited there and General Law for Prevention and Integral Management covered with clay to prevent leakage. The site was then of Waste (2004), like CERCLA, imposes strict liability for sold to the Niagara Falls School Board for $1, with plans contamination of a site, while El Salvador and Venezuela to build a school atop the dump. The neighborhood have broader environmental legislation that contains ref- flourished—for a short time. In 1957, heavy rains seeped erences to CERCLA, specifically in regards to the demand through the clay and allowed toxic wastes to escape that strict liability is imposed on responsible parties.25 through the rainwater, then seeping into the canal. The owners of the land where the Love Canal homes were In April 2004, the European Union ratified a directive built were not privy to the agreement between Hooker on Environmental Liability With Regard to the Preven- and the school board, and thus did not know that they tion and Remedy of Environmental Damage (ELD). Like were living atop a toxic dump. Residents frequently CERCLA, the ELD aims to establish an environmental found toxic water in their basements, had unexplainable responsibility framework based on the “polluter pays” miscarriages and gave birth to children with birth defects principle. Unlike CERCLA, the ELD created two liability and genetic anomalies. By 1976, the situation rose to na- schemes, does not require member states to impose joint tional prominence thanks to the work of intrepid report- and several liability, does not institute retroactive liability, ers and community activism, and by 1978, President Cart- and does not oblige member states to establish a cleanup er declared a national emergency at the site and ordered fund. As all member nations have their own specific laws the evacuation of the site.20 regarding toxic substances, hazardous waste, and site remediation in addition to the ELD, nations have modi- Congress passed CERCLA in response to the disaster; fied the directive to suit their individual systems. Like the the legislation addressed the cleanup of contaminated United States, Bulgaria, Portugal, Spain, Greece, Slovakia, and hazardous sites, and imposed strict, joint and several the Czech Republic and Romania have approved finan- liability on a broad range of parties—in this case, Hook- cial provisions that address site cleanup in their domestic er—associated with the dissemination of contamination. laws. Germany has instituted provisions similar to the Section 107 of CERCLA identifies four classes of responsi- ones in CERCLA’s Brownfields provisions, which require ble parties, and assigns responsibility of toxic site cleanup current owners to compensate authorities for increases to those parties, thus creating an incentive for companies in land value when site cleanup is publicly funded. Eng- to reduce the volume of toxic chemicals they use and to land has established one of the most sophisticated and bear responsibility for the management of those chemi- stringent environmental cleanup and liability schemes cals.21 To fund cleanups where responsible parties could east of the Atlantic. Similarly to CERCLA, liability is fully not be identified, the government created the Superfund, retroactive, implemented regardless of when the con- which was financed through a tax on chemical feedstocks tamination took place or when it was discovered.26 As the and allowed the government to subsidize its response and birthplace of the Industrial Revolution, England has been remediation costs.22 Since its passage, CERCLA has been left to cope with some of the worst sites contaminated by used to address numerous contaminated sites around the abandoned industrial activity. Most prominent has been country, including the Tar Creek site, the site of a former the 12-mile stretch of industrial wasteland in the town of lead mine, in Oklahoma; the Murray smelter, a former Llaneli, Wales. The site was the former home of a number lead smelter, in Utah, and Fletcher’s paintworks, a paint of tin, steel and copper factories that then dumped their storage facility that leached toxic chemicals into the waste in the surrounding areas, polluting the surround- groundwater in New Hampshire. An earlier environmen- ing ecosystem. The site was remediated in 2002 at the cost tal law, the Resource Conservation and Recovery Act of of 35 million pounds, and transformed into a community 1976 (RCRA), set standards for the treatment, storage and coastal park and marina. disposal of hazardous wastes, creating “cradle to grave” regulation of such wastes. Most nations in Asia and Africa have not yet de- veloped national programs that address the cleanup of Though aspects of the program, such as the Super- contaminated sites and assign liability to responsible fund tax, have not been embraced by legislators in other parties. There are some outliers, such as Japan, which countries, other facets of CERCLA have been extensively has instituted a “polluter pays” principle in regard to adopted in other jurisdictions; the “polluter pays” prin- contaminated sites and assigns some responsibility in the ciple has been widely embraced, and many nations have cleanup of contaminated lands.27 The laws in Japan are developed or are developing programs to remediate unsurprising, as Japan was home to one of the first docu- contamination.23 South American countries have imple- mented cases of toxicity as a result of industrial activity in mented numerous programs to address the cleanup of the 1950s, when in the town of Minamata methylmercury contaminated sites. Argentina’s hazardous waste law, that had been dumped into the surrounding bay leached

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 83 into the area’s fish and shellfish, which was a large part of the local diet, and consequently poisoned residents and caused birth defects in unborn children.28 South Africa enacted National Water Act 36 (NWA) and the National Environmental Management Act (NEMA) Section 19 in 1998, imposing strict liability on polluters.29 However, the absence of laws does not equate with an absence of wrongdoing. For example, in the rush to complete the Three Gorges Dam, Chinese government officials made the decision to submerge more than 1,600 manufacturing facilities along the Yangtze River without remediating the highly polluted sites first, therefore turning the sites into what one environmental planner has called the “largest toxic toilet bowl in the world.”30 Recently, a 2014 govern- ment report stated that one-fifth of that nation’s soil is contaminated.31 In Africa, the Niger Delta of Nigeria has become a toxic dump, with the oil industry, in particular Royal Dutch Shell, alleged to be responsible for polluting Figure 1 Global phaseout of leaded gasoline (UNEP,. 2008. Web. 29 the Ogoniland region of the nation for decades. Most of July 2016). the pollution stems from the forgotten infrastructure that ing to neurological damage in children,36 and as a result was left behind by the company after it discontinued op- Congress and the EPA began exploring options for a total erations in 1993. However, Royal Dutch Shell maintains ban. Six years later leaded gasoline was banned as part of that it cleaned up all hazardous waste that stemmed from the Clean Air Act Amendments of 1990.37 its operations, and blames the current state of the region on criminals who attempt to siphon oil from the pipe- Although other countries, including Canada and lines. A study from the UN Environmental Programme Austria, instituted an outright ban before the United (UNEP) found that clean-up of the area would amount States, the phase-out of leaded gasoline is considered one to the largest oil remediation project ever undertaken, of the EPA’s greatest triumphs,38 as it set a worldwide would take thirty years, and would cost approximately $1 precedent. By 1998, seventeen countries (Argentina, Aus- billion. Currently, there is no indication that remediation tria, Belgium, Bermuda, Brazil, Canada, Colombia, Costa of the region will be undertaken.32 Rica, Denmark, El Salvador, Finland, Honduras, Japan, Nicaragua, Slovakia, Sweden, and Thailand) had entirely Though no country has instituted legislation as phased out leaded gasoline.39 By 2011, only six countries sweeping as CERCLA, the environmental policies in permitted the use of any type of leaded petrol, evidence many nations in the developed world are moving to- of the ban’s widespread and rapid adoption.40 wards the precedent it has set.33 For countries in the de- veloping world to draft environmental policy regarding Laws banning the use of asbestos have also been environmental contamination, liability, and land remedia- widely adopted around the world, though with not as tion, public attention must be paid to the environmental much success as the ban on leaded gasoline. Through the harms that have been committed, thus pressuring govern- Consumer Product Safety Act of 1972, the Clean Air Act ments into political action. Passing legislation similar to of 1973, and the Toxic Substances Control Act of 1976, CERCLA will uphold the “polluter pays” principle, and most forms of asbestos have been banned in the United will lessen the likelihood of future environmental disas- States.41 Many countries with less developed environ- ters.34 mental law systems have banned asbestos and have upheld sanctions on the import of asbestos-containing Ban of Toxic Substances products even in the face of claims by producers that it Legislation initially adopted by the United States re- violates free trade laws.42 The 55 nations that have in- garding the ban of two toxic substances, leaded gasoline stituted asbestos bans range from developed, industrial and asbestos, have also seen near unanimous adoption nations, such as the United Kingdom and Australia, to worldwide. Of the two, the ban on leaded gasoline has developing countries, including Gabon and Romania. been more pervasive. The 25-year process of phasing lead Many countries have built upon and modified the U.S. out of gasoline began in 1974, when under the authority experience, instituting stricter laws than the U.S. and of the Clean Air Act Amendments of 1970, the U.S. EPA imposing outright bans on a commercial product that issued a directive requiring the use of unleaded gasoline has sweeping health risks. The cases of leaded gasoline 35 in all new cars equipped with catalytic converters and and asbestos serve as examples of other nations learn- called for a phasedown of lead to one tenth of a gram per ing from and expanding upon the US experience, and gallon by 1986. However, in 1984 research revealed that demonstrate impressive examples of how global envi- leaded gasoline caused widespread lead poisoning, lead- ronmental policy norms can arise without the need for

84 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 a multilateral environmental directive to demand that John Dales, who recommended that the costs be paid for change occurs.43 with minimal government intervention using tradable permits.47 The Bush administration harnessed Pigou’s Emissions Trading and Dales’ theories and created the first emissions trading The cap-and-trade system is a seminal market-based scheme, placing limits on the amount of pollution each environmental policy instrument that can be used to ad- manufacturer could produce, then allowing the manufac- dress a host of environmental issues, and has become turers to use their pollution allotment as they saw fit, and extremely influential both in the U.S. and abroad. Cap- if there was any remainder, allowing the operator to sell and-trade, first introduced as part of the Clean Air Act the excess to another manufacturer. Amendments of 1990, was a landmark bipartisan in- novation in market-based environmental policy. It was The result of this gamble was hugely successful, and introduced by President George H.W. Bush in response to is viewed by many as one of the most successful appli- 48 growing public concern over acid rain in the eastern Unit- cations of economic thinking to environmental policy. ed States and Canada. This acid rain resulted from sulfur The program reduced sulfur dioxide emissions from dioxide and nitrogen dioxide emissions, and destroyed electric power plants by 36 percent from 1990 to 2004, cost forest and aquatic ecosystems.44 The law, championed by less than a traditional command-and-control approach, a Republican president with overarching bipartisan sup- achieved annual health benefits that are estimated from port, established a pioneering and successful sulfur diox- $59 billion to $116 billion per year, and were achieved ide emissions trading program, ushering in a new era of at a low social cost that had no negative effects on the 49 market-based environmental policy. economy. Ironically, the environmental benefits of the program have been relatively small as the effects of acidi- While cap-and-trade systems to effect environmental fication on ecosystems have proven difficult to reverse.50 change are now quite familiar, in the 1980s the concept was novel.45 Up until then, regulation had primarily been The success of the sulfur dioxide emissions trading a command-and-control approach, or the direct regula- program proved that market-based instruments can be tion of industry by clearly defining and setting limits to used to bring about environmental change. As a result, what is legal or illegal. The grand experiment of cap-and- legislators and policymakers overseas have applied the trade was based off the ideas 20th-century British econo- concept to carbon emissions in order to tackle the issue of mist Arthur Cecil Pigou.46 He theorized that transactions climate change. The concept of applying cap-and-trade to can have effects that do not show up in the market price carbon emissions was pioneered by the European Union of products, and proposed that the manufacturer and cus- with the institution of the European Union Emissions tomer pay for the unacknowledged costs. Pigou’s theory Trading System (EU ETS) in 2003, which has grown to be 51 was expanded upon by University of Toronto economist the world’s largest emissions trading scheme. Though

Figure 2 Cap-and-trade programs by jurisdiction (International Carbon Action Partnership,. ICAP_Map_World_Legend. 2016. Web. 29 July 2016).

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 85 not without its flaws, the EU ETS has been shown to be George W. Bush administrations57—and the bill was quite successful. The EU ETS proves that a well-designed never brought to the floor of the Senate. The bill was de- trading system can limit and reduce emissions. It report- cried as a “cap-and-tax” scheme, even though emissions edly posted reductions of approximately 730 million tons trading is a decidedly Republican concept designed to from 2005 to 2012.52 These reductions have come at a rela- achieve rapid reductions at minimum economic strife tively low costs, without negative effects on the economy, and low cost.58 The death of the bill is evidence of the and changes to energy-intensive sectors, such as power widening gulf between America’s two major political and steel have been minimal. Furthermore, companies parties, the relegation of environmental issues to a par- and industries have responded to the EU ETS by com- tisan level, and the willingness of lawmakers to throw ing up with technological innovations that conform to away their own excellent creations in order to score po- low-carbon limits. This has spurred jobs creation in the litical points. renewable energy sector; for example, a German analy- sis showed that renewable energy employs more than Conclusion 367,000 people, approximately 70,000 to 90,000 more than The United States has taken a “adopt not what we a traditional energy scenario.53 have done, but what we have learned,” approach to the promotion of environmental laws in other jurisdictions. While the US experience proved that emissions trad- As one of the first nations to transition from an agrarian ing was viable, the EU experience proved that carbon to an industrial economy, the U.S. has been one of the emissions trading could be successful. Since the institu- first countries to address the environmental risks that tion of the EU ETS, several other countries have insti- accompany modern life. The U.S. experience has proven tuted carbon trading programs. New Zealand, an envi- to be a useful signpost in addressing the environmental ronmental pioneer in its own right, launched an emis- risks that are proliferating across the globe. The need for sions trading scheme in 2008, while Kazakhstan, one of nations to address the risks engendered by modern life the world’s most energy-rich nations, launched a similar has caused countries to increasingly borrow regulatory one in 2013. Cap and trade programs have also been in- innovations from one another.59 In many cases, such as in stituted in South Korea, Japan, and Quebec and Ontario. the ban of toxic substances and site remediation technol- Emissions trading schemes have also been proposed in ogies and methods, gains in scientific knowledge have Brazil, Chile, Russia, Turkey, Thailand, Vietnam, Mexico, been the most effective at creating legislative change, 54 and Manitoba. spurring legislators to institute laws that address the Perhaps most notably, in 2015 China announced known risks that have been acknowledged through sys- plans to launch a national cap-and-trade program in tematic insight. Scientific revelations have increased the 201755 following the success of emissions trading pro- knowledge concerning the risks that the modern world grams in the cities of Shanghai, Beijing, Tianjin, Guang- presents, thus helping to create regulatory norms across dong, Shenzhen, Hubei and Chongqing. Although it the globe that are becoming more consistent. These les- remains to be seen if China will be able to enact and en- sons, shared through NGOs, government agencies and force a national emissions trading scheme, the promise of legislative bodies, are a helpful guide in environmental substantially reducing emissions is a powerful one. The law development and reform efforts in developing coun- 60 announcement of the Chinese cap-and-trade program tries, such as China. On the opposite side of the coin, effectively throws down the gauntlet between China the experiences of other nations, particularly those that and the United States. Up until the announcement of the have instituted carbon trading schemes and enshrined program, neither of the world’s two largest economies environmental protections into their constitutions, have had taken large-scale action to address GHG emissions, much to teach the U.S., particularly as the world shifts fearing economic repercussions. American lawmakers away from a fossil fuel-based economy and embraces the who engaged in a standoff with China vis-à-vis climate technological innovation that accompanies a new chapter change action, citing economic concerns for their inertia, of human history. will now find it difficult to justify their refusal to pass Endnotes similar legislation on the inaction of other countries.56 1. Tseming Yang & Robert Percival, The Emergence of Global Though regional cap-and-trade programs exist in Environmental Law, 36 Ecology L. Q. 615, 615–64 (2009). California and the Northeast, no plans for a national car- 2. Id. at 642. bon emissions trading program have been approved by 3. Nicholas A. Robinson et al., Comparative Environmental Law Congress. The American Clean Energy and Security Act and Regulation (Toronto, Thomson Reuters 2012). of 2009, brought forth by President Obama, would have 4. Jonathan M. Miller, A Typology of Legal Transplants: Using Sociology, instituted a national carbon emissions trading program. Legal History and Argentine Examples to Explain the Transplant Process, 51 Am. J. Comp. L. 839 (2003). Although it passed in the House, conservatives demon- ized their own innovation—a significant irony consider- 5. Robert Percival, Global Law and the Environment, 86 Wash. L. Rev. 538, 579-634 (2009). ing that cap-and-trade was developed by conservative policy makers in the Reagan, George H.W. Bush and 6. Durwood Zaelke, Donald Kaniaru & Eva Kružíková, Making Law Work (London, Cameron May 2005). Print.

86 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 7. Daniel R. Mandelker et al., NEPA Law and Litigation (16th ed. gov/aboutepa/epa-takes-final-step-phaseout-leaded-gasoline (last Toronto, Thomson Reuters, 2016). visited July 29, 2016). 8. Id. at 2. 38. Percival, supra note 5, at 601. 9. Id. at 1. 39. Magda Lovei, Phasing Out Lead From Gasoline: Worldwide Experience and Policy Implications 10. Richard J. Lazarus, The National Environmental Policy Act in The U.S. (World Bank Technical Paper No. 397 1998), Supreme Court: A Reappraisal and a Peek Behind the Curtains, 100 Geo. http://elibrary.worldbank.org/doi/abs/10.1596/0-8213-4157-X L.J. 1507, 1507-1586 (2012). (last visited July 28, 2016). Id. 11. Mandelker et al., supra note 7, at 4. 40. Yang et al supra 12. Robinson et al., supra note 3, at 17. 41. ., note 1, at 621. Id. 13. Jennifer C. Li, Environmental Impact Assessments in Developing 42. at 622. Countries: An Opportunity for Greater Environmental Security? 1-38 43. Percival, supra note 5, at 601. (Foundation for Environmental Security & Sustainability, Working 44. Richard Schmalensee & Robert N. Stavins, The SO2 Allowance Paper No. 4. 2008), http://fess-global.org/WorkingPapers/EIA. Trading System: The Ironic History of a Grand Policy Experiment, 27 J. pdf (last visited August 22, 2016). of Econ. Persp. 103, 103-122, http://ceepr.mit.edu/files/papers/ 14. Yang et al., supra note 1, at 628. Reprint_248_WC.pdf (2013). 15. Li, supra note 13, at 6. 45. Id. at 2. 16. Id. at 5. 46. Richard Conniff, The Political History of Cap and Trade, Smithsonian Mag. 17. Id. at 1. (Aug. 2009), http://www.smithsonianmag.com/air/the- political-history-of-cap-and-trade-34711212/?no-ist (last visited 18. Elizabeth Brito & Iana Verocai, Environmental Impact Assessment in July 26, 2016). South and Central America, in Handbook of Environmental Impact Id. Assessment 182–202 (Christopher Wood, Riki Therivel & Judith 47. Petts eds. 1999). 48. Schmalensee & Stavins, supra note 44, at 3. 19. Li, supra note 13, at 1. 49. Id. at 5. 20. See generally, Richard S. Newman, Love Canal: A Toxic History 50. Nat’l Sci, & Tech. Council, Exec. Office of the President, from The Colonial Times to the Present (New York, Oxford National Acid Precipitation Assessment Program Report To University Press 2016). Congress: An Integrated Assessment (2005), http://www.esrl. 21. Robert V. Percival, Katherine H. Cooper & Matthew M. Gravens, noaa.gov/csd/aqrs/reports/napapreport05.pdf (last visited July CERCLA in A Global Context, 41 Sw. L. Rev. 727 (2012). 29, 2016). supra 22. Robert V. Percival, Christopher H. Schroeder, Alan S. Miller 51. Schmalensee & Stavins, note 44, at 2. & James P. Leape. Environmental Regulation: Law, Science & 52. A. Denny Ellerman, The EU ETS: What We Know and What We Don’t Policy (New York, Walters Kluwer 2009). Know, in Emissions Trading as a Policy Instrument 25–28 (Marc 23. Id. at 727. Gronwald & Beat Hintermann eds., 2015). Environmental Defense Fund, The EU Emissions Trading Scheme: 24. Miller supra note 4, at 846. 53. Results And Lessons Learned, Executive Summary v–x (2012), 25. Percival supra note 21, at 754–55, reference within. https://www.edf.org/sites/default/files/EU_ETS_Lessons_ 26. Id. at 730-749, reference within. Learned_Report_EDF.pdf (last visited July 29, 2016). 27. Id. at 752, reference within. 54. International Carbon Action Partnership (ICAP), International Carbon Action Partnership, https://icapcarbonaction.com/en/ 28. David Nelson, Toxic Waste: Hazardous to Asia’s Health, 34 East- ets-map (last visited Aug 22, 2016). West Center 1 (2007), http://scholarspace.manoa.hawaii.edu/ bitstream/10125/3779/1/api034.pdf (last visited July 28, 2016). 55. Julie Hirschfield Davis & Coral Davenport, China to Announce Cap-and-Trade Program to Limit Emissions, N.Y. Times, Sept. 24, 2015, 29. Percival, supra note 21, at 756. http://www.nytimes.com/2015/09/25/world/asia/xi-jinping- 30. Nelson, supra note 28, at 2. china-president-obama-summit.html?_r=0 (last visited July 26, 2016). 31. Report: One Fifth of China’s Soil Contaminated, BBC News (Apr. 18, 2014), http://www.bbc.com/news/world-asia-china-27076645 56. Id. (last visited July 29, 2016). 57. Schmalensee & Stavins, supra note 44, at 7. 32. Percival, supra note 21, at 771. 58. Id. 33. Id. 59. Percival, supra note 5, at 633. 34. Id. at 772. 60. Yang et al., supra note 1, at 660. 35. Richard G. Newell & Kristian Rogers, The US Experience with the Phasedown of Lead in Gasoline (Resources for the Future Discussion Paper 2003), http://web.mit.edu/ckolstad/www/Newell.pdf Kiki Torpey is a senior at Colgate University major- (last visited August 22, 2016). ing in Environmental Studies and Chinese. She would 36. Percival, supra note 5, at 600. like to thank Jeff Gracer, a partner at Sive, Paget & Ri- 37. Press Release, Envtl. Protection Agency, EPA Takes Final Step in esel, for helping in the formation of this article. Phaseout of Leaded Gasoline (Jan. 29, 1996), https://www.epa.

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 87 Perfluoroalkyl Compounds (PFCs) in the Village of Hoosick Falls, Rensselaer County, New York Health Risks and Successive Approximation Toward Enforceable National Regulation By Robert A. Michaels, Ph.D, CEP

Introduction Accordingly, the present investigation assesses Perfluoroalkyl compounds (PFCs) include public health risks potentially posed by PFCs, and perfluorooctanoic acid (PFOA) and perfluorooctane evaluates their possible management via regulation sulfonate (PFOS), which have been subjects of recent and implementation technologies. Assessment of PFC revelations about public health consequences arising risks includes documenting environmental residues of from industrial releases in the manufacture of widely PFCs and elucidating physical, chemical, and biological used commercial products of modern society. Common properties that give rise to their environmental and examples are Teflon used in cookware and fire retardants clinical dynamics. These “pharmacokinetic” and used in consumer fire extinguishers. The revelations, “pharmacodynamic” properties result in potential newsworthy for their human interest and exposé values, risks being posed to public and environmental health. are of special scientific and regulatory significance A related issue is historical: how did environmental because they suggest the need to regulate environmental regulation fail to prevent PFOA and PFOS from attaining residues of some substances down to the parts-per- ubiquity as residues detectable in human blood serum trillion1 range, which usually has been dismissed as globally? insignificant for public health. Some substances placed in commerce before Routine monitoring of PFCs in environmental media regulation under modern national and international such as air and water, and in biological media such as environmental statutes have been disseminated globally, blood serum and milk, in the ppt concentration range and some of these exhibit essentially infinite persistence only recently has become feasible. To illustrate, EPA’s in the environment. Most of the latter are heavy metals standard Method 537 for measurement of PFCs in water such as lead (Pb), until recent decades widely used in was published in 2009, whereas PFOA was introduced gasoline; and (the metalloid) arsenic (As), until recent into commerce decades earlier, in the 1940s. Analysis for decades widely used in (arsenical) pesticides. Several PFCs in drinking water can be performed by only a small of the persistent substances are organic, including DDT, number of laboratories in the U. S., certified by the U. S. PAHs, PCBs, PFCs, and chlorinated dibenzo-p-dioxins, EPA Environmental Laboratory Accreditation Program many of which also tend to bioconcentrate, meaning (ELAP), and still remains time-consuming and expensive. that they may attain concentrations in organisms that Monitoring in serum and milk has become possible, but are higher, possibly orders of magnitude higher, than the still is not routine.2 concentrations in environmental media from which they originated. In the U. S. PFCs are regulated mainly via unenforceable, provisional health “advisories.” PFCs Modern regulation of chemicals in U.S. commerce 4 with such advisories include PFOA and PFOS, issued by was codified under the Toxic Substances Control Act the U.S. EPA and the states of New Jersey and Vermont, enacted in 1976 and updated in 2016. TSCA required and perfluorononanoic acid (PFNA), by New Jersey. testing to demonstrate the safety of substances for Such advisories, however, apply to only some PFCs. This their commercial uses. Under TSCA, EPA inventoried weak regulatory status raises two issues: whether more nearly 100,000 chemicals in U.S. commerce, but many PFCs should be regulated more stringently and, if so, were “grandfathered” because of longstanding usage, determination of safe PFC levels in environmental media notwithstanding potential risks that substances such as that might suggest appropriate regulatory enforcement PFOA and PFOS might pose to public and environmental targets. health. Most grandfathered substances were exempt from safety testing requirements. Recent findings enhance the relevance to New York: PFOA and perfluorobutanoic acid (PFBA) now have been Some substances that were safety tested and found to detected in Hudson River water,3 which is a drinking be too toxic for use were replaced by structural analogs water source. PFOA was detected in 15 of 24 samples, and that had not been tested. Structural analogs often exhibit PFBA in 11 of 24 samples, together taken at eight Hudson similar properties (structure-activity relationships; SARs), River locations, from the confluence with the Mohawk making them useful commercially, and likewise often River to the Tappan Zee Bridge. exert similar toxic effects, making them dangerous to

88 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 introduce into commerce without prior safety testing. Honeywell International, which sold the site to Saint- Modernization of TSCA may improve this situation, but Gobain, S. A. in 1996, as well as former Oak Industries the U.S. and other societies must grapple with the legacy and Dodge Industries. In view of the PFOA detections of multiple substances such as PFCs (including PFOA, and holistic consideration of available evidence, the New PFOS, and PFNA) having been introduced into commerce York State Department of Environmental Conservation in recent decades. (NYS DEC) instructed SGPP and Honeywell to enter into a consent agreement to fund site investigation and Methods remediation.7 This assessment is based upon critical examination of available scientific, technical, and regulatory literature. It PFOA first was detected in the Village of Hoosick 8 is meant to be general, not encyclopedic. Accordingly, it Falls in August 2014, though the Village’s 2014 Water 9 highlights concepts via examples, most notably relating Quality Report included neither PFOA nor other to PFOA and PFOS rather than to an exhaustive list of all PFCs. PFOA is the predominant PFC that has been PFCs. Methods applied are generally those of scientific detected, though two water samples also contained peer review and synthesis of published findings to draw perfluoroheptanoic acid (PFHPA, Supply Well 7, Table 2). 10 new conclusions. The main example from which more The issue was addressed the Village Newsletter in 2015. broadly applicable conclusions may be drawn is the Results of public water supply sampling on 2014.10.02 Village of Hoosick Falls. and 2014.11.04 are presented for all three Village supply wells (Well 3, Well 6, and Well 7), and for post-treatment Findings finished-water with respect to PFOA (Table 1) and all sampled PFCs (Table 2). PFC Levels in Drinking Water Perfluorinated compounds, most notably including Water samples were analyzed via EPA Method 537 PFOA and PFOS, have been detected in water in multiple (U.S. EPA 2009),11 consisting of solid-phase extraction locations, including widely publicized events in West with sample concentration, followed by liquid Virginia and Ohio. Post, et al. (2013)5 report PFC levels chromatography and tandem mass spectroscopy for detected in public water supplies (PWSs) at multiple sensitivity in the ppt range. The geographic relationship locations in New Jersey. Sampling in New Jersey occurred of SGPP to the Village’s water treatment plant on over multiple studies and years; results, presented in Waterworks Road is depicted in Figure 1. Results of detail in the report, are too complex to present in similar ongoing private well sampling current to 18 May 2016 are detail here. The authors concluded that: “PFCs were depicted graphically in Figure 2, showing 1006 sample frequently found at greater than or equal to 5 ng/L in raw water results as follows: less than 2 ppt, 500 samples (49.7 from NJ PWSs. At least 1 PFC was detected at 21 (70%) of percent); less than 70 ppt, 384 samples (38.2 percent); and 30 intakes (18 groundwater and 12 surface water) from 29 NJ more than 70 ppt, 122 samples (12.1 percent). PWSs. Multiple PFCs (up to 8 at one site) were found in 13 of these 21 samples. Although PFOA was the most commonly Physical and Chemical Properties detected PFC (57% of samples) and was found at the highest PFOA and PFOS are structurally similar (Figure maximum concentration (100 ng/L), relatively high levels 3). PFOA, used in manufacture of other PFCs, has a of other PFCs were found in some samples with little or no carboxylic (organic) acid group (COOH or O=C-OH) PFOA.” at the terminal carbon, with all other hydrogen atoms substituted by fluorine (F), producing the formula Additional locations of PFC contamination have F3C-(CF2)6-COOH. PFC manufacture may involve the emerged recently in New York and New England - + ammonium salt of PFOA (O=C-O NH4 instead of O=C- States. Concentrations of PFOA and other PFCs in OH), ammonium perfluorooctanoate (APFO),12 rather water sampled from drinking water supply wells in than PFOA itself. the Village of Hoosick Falls in Rensselaer County, New York Table 1. Perfluorooctanoic Acid (PFOA) in the Village of Hoosick Falls, New York * were reported by Attorney Well 3 Well 6 Well 7 David G. Servadi (law firm (nanograms per liter, ng/L = parts per trillion, ppt) of Keller and Heckman, LLC; Washington, DC) on behalf of Sample 1 pre-treated 230 280 540 client Saint-Gobain Performance Plastics Corporation (SGPP; Saint-Gobain, 2014).6 SGPP is a Sample 2 pre-treated 170 280 450 subsidiary of Saint-Gobain, S.A., a historic French multinational Sample 1 treated ...... 440 corporation founded in 1665 and Sample 2 treated ...... to be determined headquartered in Paris. Prior owners of the SGPP site include * Servadi letter, supra note 6, at appended laboratory reports

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 89 Table 2. Perfluorinated Compounds in Water: Village of Hoosick Falls, New York*

Minimum Reporting sample date in Supply Supply Supply CAS No. perfluorinated akyl compound Level (MRL)** no. 2014 Well 3 Well 6 Well 7 (ng/L = pptr) (ng/L = pptr)

pre-treatment

1 2-Oct <90 <90 <90 375-73-5 perfluorobutanesulfonic acid (PFBS) 90 2 4-Nov <90 <90 <90 1 2-Oct <10 <10 10 375-85-9 perfluoroheptanoic acid (PFHPA) 10 2 4-Nov <10 <10 10 1 2-Oct <30 <30 <30 355-46-4 perfluorohexanesulionic acid (PFHxS) 30 2 4-Nov <30 <30 <30 1 2-Oct <20 <20 <20 375-95-1 perfluorononanoic acid (PFNA) 20 2 4-Nov <20 <20 <20 1 2-Oct <40 <40 <40 1763-23-1 perfluorooctane sulfonate (PFOS) 40 2 4-Nov <40 <40 <40 1 2-Oct 230 280 540 335-67-1 perfluorooctanoic acid (PFOA) 20 2 4-Nov 170 280 450

post-treatment (water plant finished water)

375-73-5 perfluorobutanesulfonic acid (PFBS) 90 ... 4-Nov ...... <90

375-85-9 perfluoroheptanoic acid (PFHPA) 10 ... 4-Nov ... 10 ... 355-46-4 perfluorohexanesulionic acid (PFHxS) 30 ... 4-Nov ... <30

375-95-1 perfluorononanoic acid (PFNA) 20 ... 4-Nov ...... <20

1763-23-1 perfluorooctane sulfonate (PFOS) 40 ... 4-Nov ...... <40

335-67-1 perfluorooctanoic acid (PFOA) 20 ... 4-Nov ...... 440

*Saint-Gobain. Submission of information concerning allegations of environmental contamination. Letter from Attorney David G. Servadi, law firm of Keller and Heckman, LLC (Washington, DC) to TSCA Confidential Business Information Center (Washington, DC) on behalf of Saint-Gobain Performance Plastics Corporation (SGPPC; Village of Hoosick Falls, New York), 2 pages plus attachments (8 pages), 30 December 2014

** US EPA: Shoemaker, J.A.; P.E. Grimmett, and B.K. Boutin. Method 537. Determination of selected perfluorinated alkyl acids in drinking water by solid phase extraction and liquid chromatography/tandem mass spectrometry (LC/MS/MS). Cincinatti, Ohio; U.S. Environmental Protection Agency, National Exposure Research Laboratory Office of Research And Development; Document No. EPA/600/R-08/092; Version 1.1, 50 pages, September 2009;

90 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 Figure 1: Geographic Relationship of Saint Gobain Performance Plastics and the Water Treatment Plant on Water Works Road, Village of Hoosick Falls, New York

Figure 2: PFOA Results for Private Wells in the Village and the Town of Hoosick Falls*

* N.Y.S. Dept’ of Health, Village of Hoosick Falls and Town of Hoosick Falls Private Well Sampling, Perfluorooctanoic Acid (PFOA) Results Map, https://www.health.ny.gov/environmental/investigations/hoosick/images/results_dist.jpg, updated May 18, 2016.

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 91 Figure 3: Chemical Structure of Perfluorooctanoic Acid (PFOA) and Perfluorooctane Sulfonate (PFOS)*

*Image Source: http://charlestonwaterkeeper.org/watershed-facts/toxic-pollutants-1-in-general-and-sources/pfoa-pfos-285x300/.

PFOA has Chemical Abstract Service Registration (absorption), distribution, metabolism, and excretion Number (CASRN) 335-67-1. Selected physical and (subsections below). chemical properties of PFOA are set forth in Table 3. Principal routes of exposure to substances generally A comprehensive but general explication of physical include inhalation, ingestion (“oral exposure”), and and chemical properties of PFCs, including PFOA, serves dermal contact. Routes are subdivided into pathways, for as a preamble justifying subsequent recommendations example, food vs. drinking water, for oral exposure. for comprehensive international action in the “Madrid Statement” (Blum, et al., 2015).13 The Madrid Statement Thus, body burdens depend upon the intensity highlights several environmental and toxicologically and duration of exposure, the efficiency of absorption significant properties of PFCs, including the following: via all routes and pathways, the targets of substance distribution and possible storage, the efficiency • man-made, ubiquitous, globally distributed, and and nature of metabolic breakdown and substance highly persistent; transformation, and the efficiency and time course of • residues, which are found everywhere, eventually excretion. enter groundwater, surface water, and drinking Most generally, therefore, body burdens of water; and substances depend upon the net result of processes • with high bioaccumulation potential, PFCs of increase and processes of decrease, as well as the are listed by the UN Environment Programme nature of storage and possible accumulation. Storage Stockholm Convention as persistent organic may include organs that metabolize and/or sequester pollutants. substances out of harm’s way.

Pharmacokinetics Substances may be stored in fat, for example, where “Pharmacokinetics” and “pharmacodynamics” (next they may be metabolically inactive; this may change in section) are, respectively (and very generally), the effects the event of fat metabolism, for example, as a result of of the body on substances, and the effects of substances metabolic challenges such as starvation or migration in on the body. Pharmacokinetics includes intake which fat stores may be metabolized and fat-sequestered

92 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 Table 3: Physical and Chemical Properties of Perfluorooctanoic Acid (PFOA)*

Property Perfluorooctanoic Acid Chemical Abstracts Registry 335-67-1 (CAS) No. Synonyms PFOA; Hexanoyl fluoride; 3,3,4,4,5,5,6,6,6-nonafluoro-2-oxo; Pentadecafluoro-1-octanoic acid; Pentadecafluoro-n-octanoic acid; Octanoic acid, pentadecafluoro-; Perfluorocaprylic acid; Pentadecafluoroocanoic acid; Perfluoroheptanecarboxylic acid;

Chemical Formula C8HF15O2 Molecular Weight 414.09 Color/Physical State White powder Boiling Point 189°C Melting Point 45-50°C Density (at 20°C) 1.7921 g/cm3 Vapor Pressure 4.2 (25°C) 2.3 (20°C) 128 (59.3°C) pKa 2.5 2.8 1.5-2.8 pH value 2.6, 1 g/L (20°C)

Koc 27,000 estimated Solubility in water (g·L-1) 9.5 (25°C) 4.1 (22°C) Solubility in organic solvents - Conversion Factors for vapor 1 ppm = 17.21 mg/m3 phase Sources: HSDB (2006); SIAR (2006), EFSA (2008); RTECS (2008)

*Derived from: U.S. EPA, EPA 822R14001, Health Effects Document for Perfluorooctanoic Acid (PFOA) (Feb. 2014). substances mobilized. These concepts are addressed in Excretion. “Elimination half-times in humans of 3.8 the subsections below. years, 5.4 years, 8.5 years, 665 hours, and 72 hours have been estimated for PFOA, PFOS, PFHxS, PFBuS, and PFBA, Absorption. “Perfluoroalkyls… are readily absorbed 19 14 respectively” (ATSDR, 2015; acronyms defined in Table 2 following inhalation or oral exposure” (ATSDR, 2015). above). Distribution. PFOA is highly cumulative once Biomarkers, Serum Levels, and Body Burdens assimilated into the body. PFOA and PFOS tend to concentrate in the liver of animals.15 “Absorbed Biomarkers are indicators of signal events in biologic perfluoroalkyls distribute from plasma to soft tissues, with systems or samples. They include markers of exposure, the highest extravascular concentrations achieved in liver” markers of effect, and markers of susceptibility.20 In the (ATSDR, 2015).16 In pregnant women PFCs are distributed case of PFCs, the compounds themselves, detected in to the fetus via the placenta and, after birth, to the blood serum, are accepted markers of exposure. Specific breastfeeding infant via milk.17 biomarkers of effect, however, are unavailable, as are specific biomarkers of susceptibility. Metabolism. “Perfluoroalkyls… are not metabolized in the body” ATSDR (2015).18

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 93 Virtually all people have been exposed to PFOA and Pharmacodynamics PFOS, resulting in non-zero background body burdens Acute Toxicity. Acute toxicity refers to toxic effects and the absence of a strictly unexposed control group resulting from short-term exposure of up to one day (24 for use in epidemiology studies (Kerger, Copeland, and hours). Acute toxicity of PFCs including PFOA may occur DeCaprio 2011).21 Ingelido, et al. (2010)22 determined in special circumstances such as accidental exposures in serum concentrations of PFOA and PFOS in 230 members industrial settings where PFCs may be manufactured, of the Italian general population, in three age ranges: 20- packaged, and stored. In contrast, environmental levels 35 years, 36-50 years, and 51-65 years. of PFCs including PFOA typically have been reported in the ppt to parts-per-billion (ppb) range. Acute toxicity Median concentrations of all participants were typically is unassociated with such environmentally 6.31 ng/g for PFOS and 3.59 ng/g for PFOA. The 90th realistic concentrations. percentiles were 12.38 and 6.92 ng/g, respectively. Men had higher concentrations of PFOS and PFOA Mutagenicity. Studies of PFC genotoxicity to humans than women, regardless of age. PFOS and PFOA were absent from available literature (ATSDR 2015).24 concentrations in serum also increased with age. ATSDR, summarizing mutagenicity studies, concluded The strong correlation between PFOS and PFOA that “in vitro studies provide evidence that PFOA and concentrations, according to the authors, suggests the PFOS are not mutagenic at non-cytotoxic concentrations.” same or similar exposure routes. At cytotoxic concentrations, greatly exceeding typical environmental levels, PFOA has been reported to cause The New York State Department of Health (NYS DNA damage including DNA strand breaks, induction of DOH) offered residents and former residents of the micronuclei (small cell nuclei visible after extrusion of the Village and the Town of Hoosick Falls blood tests at no main cell nucleus, relevant to potential carcinogenicity), charge to determine PFOA levels in their serum.23 Results and increases in reactive oxygen species. from 2081 participants tested from February to April Carcinogenicity: Animal studies. In rats PFOA has 2016 are reported in Table 4. Results are placed in the been associated causally with liver, testicular, and pancre- context of the general U. S. population and other affected atic tumors.25 populations in Table 5. Carcinogenicity: Epidemiology studies. Studies of The median (50th-percentile) serum level of PFOA PFOA have involved the general population, populations was 28.3 ug/L (ppb) in Hoosick Falls (Table 4), about exposed residentially to PFOA from an industrial source, 11.3 times higher than the 50th percentile nationally, and populations exposed to PFOA occupationally. which was 2.08 ug/L (ppb, Table 5). In Hoosick Falls Eriksen, et al. (2009) investigated potential association and nationally, PFOA levels were higher in males than in between plasma levels of PFOA and PFOS and cancer risk females, and higher in adults than in children. NYS DOH within a prospective Danish cohort of 57,053 participants blood tests can quantify other PFCs besides PFOA, but 50-65 years of age with no previous cancer diagnosis at other PFCs in serum were not reported. enrollment.26 They found no association of PFOA or PFOS

Table 4. Serum PFOA in Hoosick Falls Residents Tested Voluntarily, to April 2016*

* Source: N.Y.S. Dep’t of Health, Information Sheet, PFOA Biomonitoring Group-Level Results, Table 1, 1 (June 2, 2016), https://www.health. ny.gov/environmental/investigations/hoosick/docs/infosheetshortgroupresults.pdf (last visited Aug. 15, 2016).

94 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 Table 5. Serum PFOA in Hoosick Falls Residents Tested Voluntarily, To April 2016*

* Source: N.Y.S. Dep’t of Health, Information Sheet, PFOA Biomonitoring Group-Level Results, Table 1, 2 (June 2, 2016), https://www.health. ny.gov/environmental/investigations/hoosick/docs/infosheetshortgroupresults.pdf (last visited Aug. 15, 2016). plasma concentrations in the general Danish population with renal (kidney) and testicular cancers. They also apparently with risk of prostate, bladder, pancreatic, or concluded that: “Because this is largely a survivor cohort, liver cancer. findings must be interpreted with caution, especially for highly fatal cancers such as pancreatic and lung cancer.” In contrast, Barry, Winquist, and Steenland (2013)27 That is, these cancers might be caused by PFOA but not reported that PFOA exposure of 32,254 residents of represented in the “survivor cohort” because of the brief the mid-Ohio Valley, exhibiting 2,507 validated cases time people have them before dying. of cancer of 21 different types, was causally associated

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 95 Vieira, et al. (2013)28 studied the relationship Fecundity. A study by Fei, et al. (2009) involving between exposure to PFOA and cancer among residents 1,240 women from the Danish National Birth Cohort living near the duPont Teflon-manufacturing plant focused on fecundity based upon women’s reported time in Parkersburg, West Virginia. The authors analyzed to pregnancy.34 The study revealed that high plasma incidence data on 18 cancers diagnosed from 1996 levels of PFOA and/or of PFOS were associated with through 2005, including 7,869 cases in five Ohio counties longer times to pregnancy. The authors concluded that and 17,238 in eight West Virginia counties. They their “findings suggest that PFOA and PFOS exposure at concluded that their “results suggest that higher PFOA plasma levels seen in the general population may reduce serum levels may be associated with testicular, kidney, prostate, fecundity; such exposure levels are common in developed and ovarian cancers and non-Hodgkin lymphoma. Strengths of countries.” this study include near-complete case ascertainment for state Birth outcomes. A study of birth outcomes of residents and well-characterized contrasts in predicted PFOA women exposed to PFOA and PFOS in the mid-Ohio serum levels from six contaminated water supplies.” Valley revealed that both were associated positively The United Nations International Agency for with pregnancy-induced hypertension (preeclampsia).35 Research on Cancer (UN IARC, 2014)29 convened a Apelberg, et al. (2007) studied women living near a Working Group on PFOA. Based upon consideration of chemical plant; they quantified fetal exposure via PFOA available animal and human data the Working Group concentrations measured in maternal blood serum concluded that “[o]n the basis of limited evidence in humans sampled from umbilical cords. PFOA concentrations in that PFOA causes testicular and renal cancer, and limited cord serum were found to be negatively correlated with evidence in experimental animals, the working group classified size and weight of infants at birth.36 Fei, et al. (2007) PFOA as possibly carcinogenic to humans (Group 2B).” conducted a general population study involving the national cohort of women in Denmark. Despite being a Teratogenicity. Available data on possible PFOA general population study, it likewise revealed a negative teratogenicity is limited but negative. ATSDR (2015)30 association of PFOA (though not of PFOS) levels in blood addressed this issue in its holistic review of PFOA plasma with infant birth weight.37 toxicology. With respect to oral exposure ATSDR reported that “no fetal toxicity or teratogenicity was reported In contrast, Hamm, et al. (2010) studied a cohort in offspring of rabbits exposed to up to 50 mg/(kg d) PFOA of 252 pregnant women,38 and reported that maternal on GDs [gestation days] 6-18…” No data on teratogenicity exposure to perfluorinated acids including PFOA and was presented in connection with either inhalation or PFOS exerted “no substantial effect on fetal weight and dermal exposure. length of gestation at the concentrations observed in this population.” Likewise, Savitz, et al. (2013)39 studied 11,737 Reproductive Effects. Studies of potential pregnancies in a community highly exposed to PFOA. reproductive effects of PFOA and PFOS in people have They reported “no associations between estimated serum been motivated by laboratory bioassays reporting PFOA levels and adverse pregnancy outcomes other than reduced birth weight, increased postnatal mortality, and possibly preeclampsia.” decreased postnatal growth in rats and mice (Olsen, Butenhoff, and Zobel, 2009).31 Olsen, Butenhoff, and Onset of puberty and mammary gland development. Zobel reviewed eight epidemiological studies, together Tucker, et al. (2015)40 investigated the effects of PFOA involving six general (non-occupational) populations on female mouse pubertal development at doses ≤1 and two occupational populations. In the five general mg/kg. Female offspring from CD-1 and C57Bl/6 population studies that measured PFOA and PFOS, dams were exposed to PFOA prenatally, creating serum inconsistent associations were obtained with respect concentrations similar to serum concentrations in to birth outcomes including birth weight, birth length, people. The onset of puberty, including mammary gland head circumference, and “ponderal index” (a measure of development, was delayed in both mouse strains, in a leanness, relating body length and body mass). dose-dependent manner. Infertility. Infertility attributable to endocrine Other reproductive effects. Hines, et al. (2009)41 disruptors including PFOA was studied reported that PFOA “is a proven developmental toxicant in epidemiologically via comparison of serum PFOA levels mice, causing pregnancy loss, increased neonatal mortality, of fertile vs. infertile women,32 but the authors concluded delayed eye opening, and abnormal mammary gland growth that “no significant difference was found between the groups in animals exposed during fetal life.” They investigated with regard to perfluorooctane sulfonate (PFOS)[and] fetal exposure of CD-1 mice to PFOA, and possible perfluorooctanoic acid (PFOA)…”In contrast, La Rocca, PFOA effects on birth weight, serum insulin, and leptin, et al. (2011)33 reported that PFOS levels were associated a protein produced by fat that evidently is involved in positively with infertility among a group including fertile fat storage. Their investigation revealed increased body and infertile couples in an unspecified metropolitan weight, serum insulin, and leptin in mid-life of mice community in Italy. exposed developmentally. They concluded that their

96 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 research revealed “an important window of exposure for compromised in a manner that reduces its ability to low-dose effects of PFOA on body weight [BW] gain, as well distinguish “self” from “non-self” targets of action. as leptin and insulin concentrations in mid-life, at a lowest The Steenland study involved interviews with 32,254 observed effect level of 0.01mg PFOA/kg BW.” adults highly exposed to PFOA as community members and occupationally exposed individuals living near a Other Chronic Effects. The presence of PFOA chemical plant in the mid-Ohio valley. Interviewees were in water has been recognized as a potential chronic people with high serum PFOA levels (median 28 ng/ exposure risk to human health, not only in the scientific mL = 28 ug/L). The authors found that “the incidence of literature, but in litigation.42 In the scientific arena, ulcerative colitis was significantly increased in association ATSDR undertook a “health consultation” relating to with PFOA exposure, with adjusted rate ratios by quartile populations exposed to releases of PFCs including PFOA of exposure of 1.00 (referent) [‘referent’ was first quartile, from an industrial facility in Cottage Grove, Minnesota.43 against which the three higher quartiles were compared], As early as 2005 ATSDR concluded that “PFCs have a long 1.76 (95% CI: 1.04, 2.99), 2.63 (95% CI: 1.56, 4.43), and 2.86 half-life in humans and animal studies indicate a potential for toxicity to the liver and effects on reproduction and (95% CI: 1.65, 4.96) (ptrend < 0.0001).” development.” Obesity. As reported above, exposure of developing Cholesterol. Eriksen, et al. (2013)44 reported that embryonic mice to low doses of PFOA via their mothers PFOA and PFOS may affect serum cholesterol levels, (dams) has been associated with increased weight mainly in highly exposed populations. They conducted and with increased fat (“adiposity”) in postpubertal 49 a cross-sectional study of the plasma PFOA and PFOS females. This finding has been replicated in humans. vs. total cholesterol in a general middle-aged Danish Halldorsson, et al. (2012) undertook a prospective study population. They found positive associations of total of Danish women, and found that PFOA levels in blood cholesterol with both substances but, as in many serum sampled at pregnancy week 30 were correlated epidemiology studies, theirs was unable to determine with obesity indicators in their daughters at 20 years of clearly whether the association was causal. Likewise, age. 45 Kerger, Copeland, and DeCaprio (2011) reported a PFOA has been identified as an endocrine disruptor trend of increasing blood cholesterol with increasing capable of producing obesity via maternal exposure PFOA concentrations among 46,294 adult West Virginia as described above. Skinner, et al. (2013), studying the residents who lived, worked, or went to school for at pesticide DDT, reported that this endocrine disruption least one year in a C8 (PFOA and PFOS) contaminated effect may occur, not only within a single generation, drinking-water district. but extending into future generations.50 Indeed, citing Liver function. PFOA and PFOS tend to concentrate Newbold (2008), Halldorsson, et al. (2013), reported that in the liver of animals.46 As studies involving human endocrine disruptors “may lead to permanent changes in 51 exposure to PFOA have reported associations with metabolic pathways that regulate body weight.” Grens 52 liver function enzymes only inconsistently, Gallo, et (2015) outlined the history of the broadening of this al. (2012) undertook a massive study involving 69,030 observation involving DDT and animal studies to persons (47,092 adults) to examine possible association other endocrine disruptors (“obesogens”), associating of PFOA and PFOS with alanine transaminase (ALT), (speculatively) the current human epidemic of obesity glutamyltransferase (GGT), and direct bilirubin (blood with increased environmental dissemination of levels of bilirubin, a component of bile). Statistical endocrine disruptors in recent decades. analysis revealed associations of PFOA and PFOS with Immunosuppression. Immunosuppression by PFCs the liver function enzyme ALT, and inconsistent evidence at low serum levels has been reported in multiple studies of association with GGT and bilirubin. revealing reduced antibody response in adults, and in Endocrine disruption. A recent concern is that low children following routine administration of childhood 53 environmental levels of substances including PFOA vaccines (US EPA 2016) : “…three studies have reported and other PFCs have been found to affect the endocrine decreases in response to one or more vaccines (e.g., measured system. The effects may include causing obesity and the by antibody titer) in relation to higher exposure to PFOA in autoimmune disease ulcerative colitis. Such substances children (Grandjean et al. 2012; Granum et al. 2013) and may act by mimicking or blocking endogenous hormones adults (Looker et al. 2014). In the two studies examining (ATSDR 2015).47 exposures in the background range (i.e., general population exposures, <0.010 μg/ml), the associations with PFOA also Ulcerative colitis. Ulcerative colitis was strongly were seen with other correlated PFCs. This limitation was associated with exposure to PFOA measured via not present in the study in adults in the high-exposure C8 48 concentrations in blood serum (Steenland, et al., 2013). community population. Serum PFOA levels in this study Ulcerative colitis is an autoimmune disease, in which population were approximately 0.014–0.090 μg/mL” (pages the immune system of affected individuals has been 3-24 to 3-25).

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 97 Sensitive Subpopulations of perfluoroalkyl compounds with other chemicals in Sensitive subpopulations are groups sharing children or adults.” distinctive characteristics. Individuals may belong to Serum Levels vs. Health Effects a sensitive subpopulation, but the designation usually Serum levels of PFOA associated with numerous excludes individuals considered alone, whose individual human health conditions as reported in US EPA (2016)56 vulnerability to stressors depends upon his or her unique are set forth in Table 6. Table 6 is divided into two parts. medical condition. Eventually each individual must die Table 6a reports serum PFOA levels associated with and, as the transition between life and death approaches, specific human health conditions. Table 6b ranks serum vulnerability to stressors may become arbitrarily great, PFOA levels from lowest to highest, and for comparison and the presence or absence of the stressor arbitrarily shows the Town of Hoosick and Village of Hoosick Falls insignificant in extending the dwindling life. 50th-percentile serum level. As Table 6b illustrates, many Examples of sensitive subpopulation commonly health conditions have been reported associated with include the elderly, infants, and pregnant women. In serum PFOA levels below those commonly occurring the case of PFCs, individuals with specific pre-existing among Hoosick residents and former residents. conditions may be unusually sensitive (ATSDR 2015, Regulation-Based Risk Management pages 313-4).54 These include people with elevated serum cholesterol, a risk factor for cardiovascular disease, Much information is available about the unusually and people with elevated serum uric acid, a risk factor low concentrations of PFCs, especially PFOA, that have for hypertension (high blood pressure). People with been shown to be toxic to people. This information compromised liver function also may be unusually has been used to form the basis for promulgating sensitive to PFCs, because the liver may be a target of health advisories (Table 7), but not legally enforceable PFC toxic activity. regulations such as Maximum Contaminant Levels (MCLs) under the 1974 Safe Drinking Water Act (Public Chemical Interactions Law 93-523). Data on PFCs are less detailed for cancer According to ATSDR (2015, page 311)55: “No than non-cancer effects. Accordingly, health advisories relevant studies were located regarding interactions primarily have been based upon extrapolating to

98 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 drinking water the PFC concentrations in blood serum at dose-response curve in the low-dose range in sufficient which non-cancer effects have been observed to occur. detail for use in quantitative health risk assessment. Accordingly, regulation based upon carcinogenicity may Cancer. PFOA has been associated causally with be forthcoming with more detailed quantification of testicular and renal (kidney) cancer based upon limited needed dose-response parameters. evidence in people (US EPA 2014).57 The United Nations International Agency for Research on Cancer (UN IARC) Non-Cancer effects. ATSDR (2015)58 “has derived an Working Group classified PFOA in Group 2B, “possibly intermediate-duration oral MRL [Minimal Risk Level] of carcinogenic to humans.” Evidently, limited quantitative 2x10-5 mg/kg/day [mg/kg d] for PFOA based on a BMDL data on human exposure and on subsequent cancer [benchmark dose level] of 1.54x10-3 mg/kg/day [mg/kg d] incidence together have precluded elucidation of the for increased absolute liver weight in monkeys administered

Table 7. Health Advisories and Related Benchmarks for Perfluoroalkyl Compounds*

New Jersey** 40 ppt PFOA “chronic (lifetime)” New Jersey 10 ppt PFNA interim specific groundwater criterion Vermont 20 ppt PFOA chronic

US EPA, national 400 ppt PFOA short-term US EPA, Region 2 100 ppt PFOA chronic US EPA, national 70 ppt PFOA + PFOS lifetime US EPA, national 20 ppt PFOA Minimum Reporting Level (MRL)

*PFNA: perfluorononanoic acid; PFOA: perfluorooctanoic acid; PFOS: perfluorooctane sulfonate.

**N.J. Dep’t of Health, Environmental and Occupational Health Surveillance Program, Drinking Water Facts: Perfluorinated Chemicals (PFCs) in Public Water Systems, http://www.nj.gov/health/eohs/pfc_in_drinkingwater.shtml.

***Vermont Dep’t of Health, PFOA (Perfluorooctanoic Acid), http://healthvermont.gov/enviro/pfoa.aspx (June 7, 2016).

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 99 PFOA via a capsule for 26 weeks (Butenhoff et al. 2002). The was effective during deliberations over a “final” health BMDL was estimated using serum PFOA levels as a dose advisory value for chronic exposure to PFOA. In April metric; a HED [human equivalent dose] was estimated 2016 EPA promulgated its final “lifetime” health advisory using an empirical clearance model. The BMDHED was value, 70 ppt as the sum of the concentrations of PFOA divided by an uncertainty factor of 90 (3 for animal-to-human and PFOS. extrapolation with dosimetric adjustment, 10 for human variability, and 3 for database deficiencies, particularly the lack Superfund designation. The SGPP McCaffrey Street of developmental and immunological studies in monkeys.” site acquired New York State Superfund status in 2016 and, via letter of 11 February,60 potentially responsible ATSDR (2015, page 435) also reported: “EPA has not parties (SGPP and Honeywell) were ordered to enter derived reference dose (RfD) or reference concentration (RfC) into a consent agreement for site remediation. As of this values of perfluoroalkyl compounds.”The RfD and RfC are writing, U.S. EPA classification of PFOA as a hazardous limits placed upon exposure via ingestion and inhalation, substance has not occurred, but would qualify the site for respectively. They differ significantly, in that the RfD is inclusion on the Federal Superfund’s National Priority expressed in units of daily intake per unit of body weight List (NPL). [for example, mg/(kg d)], whereas the RfC is expressed as an airborne concentration (for example, mg/M3). Technology-Based Risk Management Both units are derived based upon many assumptions, Technology-based risk management includes critically including absorption efficiency (via the digestive mitigation and remediation technologies. Remediation or respiratory tract) and the relative source contribution of groundwater contamination emanating from a of each exposure route. particular source is likely to include pumping to create a “cone of depression,” thereby reversing outward flow In 2009 the U. S. EPA established a Provisional of groundwater from the source. Instead, groundwater Health Advisory of 0.4 ppb (400 ng/L = 400 ppt) for flow in the vicinity would converge toward the source, short-term exposure (up to about two weeks) to PFOA at which continued pumping gradually would abate the in drinking water. As a concentration rather than an contamination, eventually all the way to the cleanup goal. intake dose, the health advisory value is analogous to Treatment of pumped groundwater could include use of an RfC. As with RfC derivations, a critical parameter for granular activated carbon (GAC) filtration for removal of derivation of the health advisory value was the relative PFCs and other substances. source contribution, which is the share of total PFOA exposure assumed to be attributable to drinking water. When drinking water is contaminated with PFCs, EPA, in accordance with policy, assumed that 80 percent the main mitigation technology used to remove them has of total exposure to PFOA originates from non-drinking been GAC filtration. Filtration units marketed for homes water pathways, and that 20 percent of total exposure is that are supplied by individual private wells, however, attributable to drinking water. In the Village of Hoosick may include both GAC and reverse osmosis modules Falls, other sources have been reported, including PFOA connected in series. GAC treatment has been used for containers disseminated to the community and airborne municipal water treatment systems such as the system sources of PFOA emitted from manufacturing processes. serving the Village of Hoosick Falls. Such widespread dissemination, combined with the The GAC system for the Village consists of two stability of PFOA in the environment, gives rise to the carbon beds operating in series. A performance standard likelihood of biomagnification in the food chain, affecting of 20 ng/L (20 ppt) initially was proposed for the Village, garden vegetables, fish, and (hunted) birds consumed on the premise that a more stringent performance by residents. Children playing in soil contaminated with standard would be unnecessary and/or infeasible. This PFOA might consume it via hand-to-mouth contact, claim is false based upon abundant experience in the which tends to be exacerbated among people (children operation of GAC filters for removal of PFOA, both in and adults) who habitually mouth non-food items, in a the U.S. and abroad. For example, PFOA routinely is condition known as “pica.” Other exposure pathways of removed from water supplied by the Little Hocking potential significance in the Village and elsewhere include Water Association, a rural user-owned water system in cooking, bathing, and showering. Washington County, Ohio. This facility’s GAC system is Inasmuch as most residential exposure to substances especially notable because, like the Village’s, the Little via drinking water occurs for years rather than weeks, Hocking system is configured with two carbon bed units EPA Region 2 in January 2016 augmented EPA’s 400-ppt operating in series. short-term exposure advisory for PFOA by issuing an Dual units of two in-series carbon beds operate in interim chronic health advisory value of 0.1 ug/L (100 the Little Hocking system. PFOA generally is undetected ng/L = 100 ppt).59 Chronic exposure refers to an exposure in finished water produced by each of the two units. period from a year, more or less, to a period of years, The method detection limit (MDL) for PFOA is indicated up to exposure for a lifetime, in health risk assessment with each reported sample value, and most commonly typically assumed to be 70 years. This interim value it is the nominal MDL of 1.7 ppt for U.S. EPA analytical

100 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 Method 537, which is used widely, including in the likely to be a small fraction of exposure duration. Once Village of Hoosick Falls. a steady state is attained, however, concentrations in serum will not decline unless and until exposure ceases EPA Method 537 invites procedural alterations to or substantially abates. In the absence of exposure, the reduce its MDL if desired. That is, a lower MDL than half-time for human elimination of PFOA, which is not 1.7 ppt may be applicable to routine PFOA analysis in metabolized appreciably, is approximately four years (as finished drinking water. The Little Hocking database, for documented earlier; see Results section). That means that example, includes multiple samples in which PFOA was exposure via drinking water and other sources is subject undetected at an MDL of 1.0 ppt. If performance at that to a multiplier effect, in which mechanisms of substance more sensitive level can be achieved in the Little Hocking toxicity may continue acting for multiples of the exposure system, it unquestionably can be achieved in the Village duration, for much or all of a lifetime, even after exposure of Hoosick Falls. is terminated completely. GAC technology is highly effective. Even so it In short, PFOA exhibits a “perfect storm” of troubling requires close monitoring to quantify the rate at which properties: essentially infinite lifetime in the environment, PFC removal efficiency declines as the adsorptive surface resistance to human metabolism, bioconcentration in the area of the constituent carbon particles gradually but food chain, transmissibility to infants via breastfeeding, inevitably is exhausted. This raises the inter-related issues years-long excretion half-time in the human body, and of performance standards to which treatment systems causation of human cancer and non-cancer effects. These must be designed, drinking water sampling frequency, properties, along with widespread use in manufacturing and PFC detection and Minimum Reporting Levels Teflon and other widely used products of modern society, (MRLs). U.S. EPA MRLs for unregulated substances in have resulted in PFCs becoming ubiquitous contaminants drinking water are set forth in a document known as 61 in the global environment. As a result they also have been UCMR 3 and MRLs for six PFCs are listed in Table 3. detected ubiquitously in blood serum in the U.S. sampled EPA’s MRL for PFOA, for example, is ≤ 20 ppt. around 2000,62 with median concentrations of 5 ng/mL Discussion, Conclusions, and Recommendations (ppb) for PFOA and 30 ppb for PFOS. Concentrations in the serum of children have been reported generally to be PFC Levels in Drinking Water and Blood Serum higher than in adults.63 PFCs, most notably PFOA and PFOS found in drinking water in the ppt range at which they are toxic, Table 6 lists PFOA concentrations in blood serum reveal the need for routine monitoring, aggressive that EPA reports as “associated” with specific adverse cleanup, and promulgation of enforceable regulation to health effects in people. The concept of “association” control human exposure, prevent disease, and help to encompasses relationships running the full gamut of clarify accountability, thereby preventing similar incidents the degree of certainty of causality, from causal to non- elsewhere. PFOA was introduced into commerce in the causal (“casual”), for example: “proven cause,” “known 1940s when stringent environmental regulation was non- cause,” “presumptive cause,” “probable cause,” “likely existent and routine monitoring of ppt-range residues in cause,” and “possible cause.” Many if not most of the environmental media infeasible. Historical data on PFC studies included in Table 6 are supported by animal concentrations typically are unavailable. In view of its bioassays or other data and, accordingly, were included long industrial history, however, the Village of Hoosick based upon credible public comments or peer review 64 Falls appears to have experienced unabated exposure recommendations. to PFOA over a period of years at least, and more likely All of the studies included in Table 6 report on health decades to a century. The time profile of exposure effects that fall into one or more of five well-documented might be inferred from sampling for PFCs emitted to categories of PFOA adverse health effects. These health the atmosphere and deposited to the ground, from effect categories were explicated earlier (in the Results hydrogeological investigations to quantify PFC entry into section): groundwater, from data on groundwater direction and flow by depth, and from studies of PFC concentrations at • serum lipids, uric acid; increasing distance downstream (and downwind) of the • immunotoxicity, Saint-Gobain Performance Plastics facility. • thyroid disease, By comparison with the Village’s apparently long exposure history, the time required to reach a steady- • endocrine disruption, and state level of PFOA in the blood plasma was ≤17 days • reproductive and developmental outcomes. in the Lau, et al. (2006) high-exposure mouse study used to derive EPA’s initial (400-ppt) Provisional Health The health effects are grouped within their relevant Advisory. The time to achieve steady-state serum health effect categories in Table 6a, and form a strong concentrations in people exposed to environmental basis for using Table 6b as a basis for comparisons of indi- PFOA levels prevailing in the Village is unknown, but

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 101 viduals’ PFOA serum levels with the (presumptive) caus- magnitude of the serum PFOA elevation caused by PFOA ative serum levels reported in the table. contamination of groundwater emanating from the Saint- Gobain facility. To capture the magnitude of the resulting A concept in science generally, and in epidemiology 65 serum PFOA elevation, NYS DOH should report the aver- specifically, is that of the default assumption which, in age serum PFOA level in current residents until recently experiments, also may be termed the “null hypothesis.” consuming the PFOA-contaminated public water supply, The weight of evidence subtly shifts the default assump- which is drawn from groundwater adjacent to the Saint- tion, which is the assumption that is most likely to be true Gobain facility. Instead, the reported average is diluted based upon available evidence. Progress in science oc- via inclusion of the relatively low serum PFOA levels curs when a null hypothesis is tested, whether or not it is of biomonitoring program participants who are former refuted, but usually more so if it is refuted. In short, with residents, and people who have private wells,68 most of respect to the studies included in Table 6, PFOA must be which are located at relatively great distance from the at least regarded as the presumptive cause of the reported Saint-Gobain facility. “associated” adverse health effects. Though PFCs persist in the environment, their con- In public health policy, substances differ from people centrations in human blood serum declined significantly in our vaunted legal system: as a precaution, substances in the years since 2000,69 possibly reflecting their gradual must be shown, not presumed, to be innocent. A corollary phaseout from U.S. commerce, completed in 2015. Thus, is that health effects cannot scientifically, and should not the public health benefit of phasing out PFCs appears to be dismissed as mere associations with high PFOA levels, be evident based upon blood serum as an exposure mark- without ominous implications for the affected individu- er, but this benefit clearly is unavailable to communities als, notwithstanding a recent fact sheet issued by NYS 66 such as the Village of Hoosick Falls that are situated near DOH (2016) regarding its biomonitoring (serum PFOA) a continuing source of PFC contamination. Yet, having program. been phased out of commerce, PFCs are regulated only The NYS DOH (2016) fact sheet regarding its bio- by unenforceable health “advisories,” whereas persistent monitoring program in the Village of Hoosick Falls fails environmental contamination with PFCs would suggest to acknowledge the high probability that individuals the need for enforceable limits, especially in surface water with elevated serum PFOA probably have elevated risk and groundwater used for direct human consumption, of experiencing adverse health effects with which PFOA gardening, and agriculture. 67 is associated, such as those reported in Table 6. The fact As a further concern, NYS DOH’s blood sampling sheet diligently explicates the meaning of “association,” program for Hoosick residents and former residents has most notably distinguishing it from “causation.” Regard- resulted in disclosure to participants of their personal ing future risk, however, the fact sheet includes exces- PFOA serum levels, and in public disclosure of the range sively disarming statements, such as: of PFOA serum concentrations found. NYS DOH, howev- Individual results only provide exposure er, has failed to disclose to individuals or to the public the information and are not cannot [sic] be range of serum concentrations of other PFCs. Although used to determine of [sic] whether a PFOA has been the predominant PFC detected in water person’s current illness is due to PFOA or in the Village of Hoosick Falls, only empirical data can if a future illness is likely to result from reveal whether PFOA likewise is the predominant PFC in PFOA… blood serum. Residents and former residents may have been exposed to PFCs environmentally, possibly via air- Future studies of PFOA exposure by borne sources emanating from manufacturing processes scientists, public health experts, and at the Saint-Gobain Performance Plastics facility. PFOA government agencies may provide levels in serum, therefore, should be viewed in the con- more definitive information on health text of related compounds that are likely also to be pres- effects. Knowledge of an individual’s ent. Moreover, distribution of PFCs in serum is a valuable exposure may be helpful in applying this marker of overall PFC exposure. Finally, SGPP employees information in the future. might have occupational exposure to other PFCs, not just The NYS DOH fact sheet likewise is excessively dis- more exposure to PFOA than non-occupational residents. arming in presenting a comparison of “Average PFOA NYS DOH therefore should expand the scope of its dis- Levels in Blood” in eight populations, where the lowest closures to individuals and to the public regarding PFCs is the U. S. population: 2 ug/L (ppb). The highest aver- other than PFOA. age PFOA level is reported in 3M workers in Decatur, PFC Regulation via Advisories Alabama: 1125 ug/L (ppb). By misleading comparison, “Hoosick Falls area, NY (all participants)” are reported to The 2009 EPA health advisory value of 400 ppt for have an average PFOA level of 23.5 ug/L. Although this PFOA in drinking water, though legally unenforceable, is still nearly 12 times the U.S. average, it understates the nonetheless was influential in guiding the advice provided by some officials on the issue of whether or

102 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 not residents of the Village of Hoosick Falls should Recently the U.S. EPA replaced the Region 2 advisory consume their PFC-tainted drinking water. Indeed, the value of 100 ppt by promulgating a new advisory of 70 unenforceability of the health advisory seems to have ppt for “lifetime” exposure to the sum of PFOA and PFOS precipitated official reversion to a far less stringent, but concentrations in drinking water nationally. Substitution enforceable, standard of 50,000 ppt. Specifically, in 2015 of the term “lifetime,” which usually refers to 70 years in the Village Newsletter70 reported on advice sought by the health risk assessment parlance, for the previously used Village from the New York State Department of Health. “chronic,” referring to one year or more, is troubling The response, received from the Rensselaer County because it suggests that EPA might regard a (70-times) Department of Health on 12 January 2015, read in part: higher value acceptable for chronic exposure for, say, just “Samples taken from the water supply wells on October 2 one year. Thus, the new 70-ppt “lifetime” advisory for and November 4, 2014 were found to contain PFOA at levels PFOA + PFOS may be interpreted as being less stringent ranging from 0.17 micrograms per liter (ug/L) to 0.54 ug/L… than the Region 2 “chronic” 100-ppt advisory for PFOA These levels are below the New York State unspecified organic alone. contaminant public drinking water standard of 50 ug/L” (50,000 ng/L = 50,000 ppt; emphasis added). The latest (PFOA + PFOS) EPA national advisory is supported by description of, at best, a lengthy and The EPA health advisory was essentially irrelevant uncertain pathway toward enforceable regulation.76 because it was intended to apply only to short- EPA also has failed to show that its new advisory, even term exposure durations of up to about two weeks, if enforced, is sufficiently stringent to protect public commensurate with the 17-day exposure duration used and environmental health. Several support documents77 in the Lau, et al. (2006) study on which the advisory was were found on EPA’s website, but none was linked to based.71 This exposure duration might be commensurate the advisory. Failure to link the support documents to

“Recently the U.S. EPA replaced the Region 2 advisory value of 100 ppt by promulgating a new advisory of 70 ppt for ‘lifetime’ exposure to the sum of PFOA and PFOS concentrations in drinking water nationally.” with a typical vacation, but not with residential the health advisory document has the effect of obscuring exposure, which typically is chronic (a year or, more EPA’s technical justification, and critical comments by often, multiple years). Accordingly, by the end of January peer reviewers and members of the public.

2016, EPA Region 2 promulgated a health advisory of 100 78 ppt for chronic exposure to PFOA in drinking water in EPA’s support document for the 2016 PFOA (and Region 2. PFOS) drinking water advisory indicates that it is based upon “a reference dose (RfD) derived from a developmental The 2009 Health Advisory also was challenged by toxicity study in mice; the critical effects included reduced Grandjean and Budtz-Jørgensen (2013) based upon ossification in proximal phalanges and accelerated puberty in concentrations of PFCs in blood serum vs. immunological male pups following exposure during gestation and lactation” effects in children as the critical toxicological end point.72 (page 9). The mathematics of the derivation are set forth Their conclusion suggests that an appropriate PFOA limit in EPA’s support document, including adjustment of in drinking water would be in the range of just 1 ppt: animal dosing to equivalent human dosing. Setting aside “when the results are converted to approximate exposure limits the issue of the technical merit of the derivation, the for drinking water, current limits appear to be several hundred choice of the animal study over available human studies, fold too high. Current drinking water limits therefore need to be most notably Grandjean, et al. (2013),79 to derive the reconsidered.” advisory is questionable and, indeed, was criticized in peer review.80 Similarly, Grandjean and Clapp (2015) found that “carcinogenicity and immunotoxicity now appear to be relevant The essential issue is that the Grandjean, et al. (2013) risks at prevalent exposure levels. Existing drinking water study would produce a lower health advisory value, limits are based on less complete evidence than was available which is undisputed by EPA. EPA’s basis for the decision before 2008 and may be more than 100-fold too high.”73 A to reject the study deserves scrutiny. The study showed confirmatory study also was published, following up that routinely administered childhood vaccinations previous work in the Faroe Islands, involving children produced a weaker antibody response among children age 13 years.74 At least one publication has suggested the whose PFC levels in serum were elevated compared with possible need for a PFOA drinking water acceptability children with lower serum PFC levels. EPA rejected the concentration that is even below 1 ppt.75 study because it (and related studies) were confounded

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 103 by multiple PFCs, and because the incidence of disease Village, public health protection requires that the GAC among children with weaker antibody response to filter performance standard be set at a value that reflects vaccination was not observed to be elevated.81 the lowest feasible exposure going forward, with the tandem goals of reducing serum PFOA levels as quickly EPA often addresses multiple substances together. as possible and preventing disease. These goals are Examples include chlorinated dioxins, PAHs, and PCBs, best met by specifically establishing the most stringent even though nearly all studies of the toxicological effects feasible performance standard for PFOA in the water of each of these groups may be confounded by the supply. presence of multiple members of the group in a particular study. Indeed, EPA’s latest health advisory combines Four primary conclusions are drawn below regarding PFOA and PFOS. Clearly, an advisory could focus on the the performance standard that is appropriate for the GAC sum of all PFCs in addition to the sum of just the two filter for the Village of Hoosick Falls: specific PFCs. 1. All routine analysis for PFOA should be conducted EPA interpreted the Grandjean (and related) via EPA Method 537 and adhere to its nominal studies as if they primarily raised the narrow issue of method detection level of 1.7 ppt or better; childhood vaccine effectiveness. EPA ignored the broader likewise for other PFCs; significance of the Grandjean, et al. (and related) studies: that immunosuppression is a serious clinical outcome for 2. All data produced by such analysis should be anyone, and especially for children. Immunosuppression placed in the public domain, signifies that the effectiveness of immunosurveillance 3. The initially proposed performance standard of is reduced. Immunosurveillance is the essential bodily 20 ppt for PFOA in finished water is unacceptably function of maintaining vigilance to detect invading high, as is the MRL published in UCMR 3; and foreign pathogens, and of mounting an antibody attack against foreign cells or against cancer cells, which a 4. The GAC unit should be designed to reduce PFOA healthy immune system would interpret as “foreign.” in finished water to the minimum concentration Most essentially, immunosurveillance protects children found to be feasible for routine sampling, which against childhood cancers and against pathogens, evidently is in the range of 1.0 to 1.7 ppt based whether or not vaccines against them were administered. upon experience of the Little Hocking water system in Ohio. EPA did not cite evidence that PFOA (or PFOS, or any PFC) reduces the titer of only a particular vaccination NYS DOH Cancer Cluster Analysis in the Village disease target. The reasonable default assumption must of Hoosick Falls be made, therefore, that PFOA-induced (and PFC- Reports of rare cancers and clusters of more common induced) immunosuppression is general, not disease- cancers in the Village of Hoosick Falls roughly coincided specific. That is, the assumption must be made that failure with discovery of PFOA in drinking water. The New to observe elevated incidence of the single vaccine disease York State Department of Health (NYS DOH) therefore is target among low-antibody titer children is not probative, undertaking a health study to investigate possible cancer and therefore not reassuring, regarding PFOA (or PFC) clustering, termed “unusual elevations.”83 The scope of the risk of adverse effects on children. NYS DOH community health study should be expanded EPA’s decision to construe Grandjean, et al. (and to include non-cancer effects. The cancer study also related studies) narrowly, at the expense of stringency should include the following features: in protecting children’s health, must be viewed in the • Adopt a health-protective criterion of statistical context of EPA’s longstanding special mandate regarding significance to trigger further investigation of children’s health, embodied by EPA’s Children’s Health cancer clusters, rather than 95-percent confidence, 82 Risk Initiative. In 1997 the Office of Children’s Health to assure that real clusters will not be interpreted as Protection was instituted within EPA. Its mission statistical flukes; was and remains “to make children’s health protection a fundamental goal of public health and environmental • Consider rare cancers, whose incidence is expected protection… [by] ensuring strong standards that protect to be zero in the small population of Hoosick Falls children’s health….” (about 5,000), not just more common cancers in the Cancer Registry. Reports of multiple types of rare PFC Performance Standards for Water Treatment cancers are even more unlikely statistically, unless Facilities caused by stressors, and should be considered The performance standard of 20 ppt that initially probabilistically together, not just individually, in was proposed for the GAC system serving the Village isolation; of Hoosick Falls water treatment facility was excessive. • Conduct a prospective health risk assessment to Given evidence of a long history of PFOA release in the supplement retrospective assessment of cancer

104 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 cases. Elevations of cancer incidence might be demand explanation as a real cancer cluster rather than statistically insignificant, even in the presence of an inevitable statistical deviation from randomness. real cancer causes; All effects have causes and, specifically, all cancer • Incorporate the time dimension into cancer cases have causes. Investigation of particular populations, incidence analysis. The time period of the NYS such as Village residents and Saint-Gobain Performance DOH study, 1995 through 2012, should be Plastics Corporation employees, might reveal active expanded using ancillary data. The longer period cancer causes, and possibly might rule out inactive should be subdivided into time windows to causes, even in the absence of any statistical elevation of examine possible trends in the appearance of cancer cancer incidence at all. For example, the occurrence of cases, such as individual years as illustrated in related cancers among all members of a work team might Kulldorff, et al. 1998);84 be attributable to occupational exposure to PFOA, even in the absence of a statistical signal when cases among these • Conduct detailed investigations aimed at coworkers are diluted into the larger population of Saint- attributing cancers to specific causes. NYS DOH Gobain employees, or into the even larger population of fails to state the objective of elucidating the cause(s) Village residents. of “unusual elevations” that might be found; and Public health professionals, like scientists generally, • Consider anecdotal and other ancillary data, such are accustomed to applying the 95-percent confidence as documented cancers among coworkers or among criterion of statistical significance (P ≤0.05). The goal is to pets living in the same household. Animals may be conservative, that is, to protect the body of scientific be more intimately associated than people with the knowledge from corruption by errors introduced by inad- water, soil, and biota in their outdoor environment. equate stringency. Public health professionals, however, NYS DOH fails to explicate that such potentially simultaneously are responsible for being conservative probative data will be sought and used. in protecting human health and human life. Indeed, the The standard of 95-percent confidence typically American Statistical Association recently issued a state- adopted in academic scientific publications, including for ment to combat pervasive misunderstanding in the sci- cancer cluster identification (Kulldorff, et al. 1998), may entific, business, and public policy communities of the be inappropriate where human health and human lives 95-percent confidence limit and its routine, often inappro- are at stake, because it might result in rejection of real priate, application.85 cancer clusters that might be, say, only 90 percent certain Being conservative requires giving serious not to have occurred by chance alone. Classifying a cancer consideration to observed associations that probably cluster as real may be required to justify measures, such are causal rather than casual, or even to associations as health monitoring, to protect life and health. Such that only might be causal rather than casual. Public protective measures should be taken if a cluster probably health professionals cannot overlook a cancer cluster, more probable than not), is real (a common legal standard: for example, because it is only 90 percent likely to be not just when it is 95-percent certain to be real. real rather than a statistical fluke. In statistics terms, the The small size of the population of the Village of conflict is between Type 1 vs. Type 2 errors: rejecting a Hoosick Falls limits sample sizes, and thereby increases true null hypothesis (for example, a real cancer cluster is the degree of cancer incidence elevation needed to attain not recognized) vs. accepting a false null hypothesis (for statistical significance and recognize cancer clusters. The example, a statistical fluke is interpreted as a real cancer small size of the study population, however, can be and cluster). should be used to advantage statistically with respect The conflict between conservatism in the interest to rare cancers, whose incidence in a small population of academic science vs. public health protection has not would be expected to be zero. The occurrence of unusual always been resolved in favor of the latter. Investigating or rare cancers among Village residents should be brain cancers in Los Alamos, New Mexico, Kuldorff, et total accorded due weight. NYS DOH plans to study “ al. (1998),86 using a widely accepted statistical program cancers and specific types of cancer,” but fails to assure called SaTScan, found that perceived clusters actually that the specific types will include rare cancers, even if were statistical flukes: “The community was informed absent from the Cancer Registry, or to describe how rare that such a finding could easily have resulted from random cancers might be evaluated, specifically, the statistical fluctuation in the incidence of a rare disease within a small significance that they might be accorded if found in a population… With adjustment for age, sex, and race, the most small population in which they might be unexpected. likely cluster is in the Albuquerque-Santa Fe area during Finally, NYS DOH fails to describe how the Agency might 1985 through 1989… With a P value of 0.074 [92.6 percent interpret multiple types of rare cancers occurring in the confidence limit], the cluster is not statistically significant” Village, where each individually might be unexpected (pages 1378-9). Even so, it might have been real; it might in such a small population, but all of which considered have been caused by an environmental stressor, such as together might be expected to co-occur so rarely as to radioactivity of recent vintage, or radioactive residues

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 105 dating back to the era of the Manhattan Project at Los quantitative SARs for PFCs, as exemplified by Hagenaars, Alamos. et al. (2011).88 In either case SARs are derived based upon the premise that substances exhibiting similar In the case of the Village of Hoosick Falls, a strictly chemical structure (structural analogs) often also statistical approach narrowly focusing on incidence data exhibit similarities in other properties. This may make seems fraught with the peril of overlooking possible them useful commercially, resulting in substitutions clusters that are worthy of further, detailed investigation. of structural analogs when regulations preclude use The challenge after recognizing a cluster is attributing a of an analog that is in use, but then is banned for use. cause or probable cause to it, if possible. This is another Structural analogs, however, also may exert similar toxic function of further, detailed investigation. In short, effects, which makes them dangerous to introduce into suggestive data should be investigated further, in detail, to avoid overlooking cancer clusters and cancer cluster commerce without prior safety testing. Accordingly, causes. EPA’s approach to expanding the scope of its PFC health advisories should be pro-active, with maximum Setting Enforceable PFC Regulations for the justifiable use of SARs. Nation Promulgate enforceable regulations for PFCs. PFOA Revise Reporting Limits for PFCs. Reporting limits and other PFC risks may be managed, retrospectively, for unregulated substances are set forth in a U.S. EPA via PFC classification as hazardous substances, and 87 publication nicknamed UCMR-3. Determination of PFC site inclusion among State and Federal Superfund safe levels of PFCs in water, however, is underway, not sites. Available data also support creation of enforceable completed. Until completion, a conservative approach to regulations for PFOA and other PFCs to manage risks PFC reporting is appropriate. UCMR-3 therefore should prospectively. EPA’s most recent health advisory for be updated to specify reporting limits for PFCs that are “lifetime” exposure to the sum of PFOA and PFOS in identical to EPA Method 537 detection limits for PFCs. drinking water, however, is supported by description Higher reporting limits eventually might be justified of, at best, an uncertain and lengthy pathway toward but, until then, they are unjustified and potentially enforceable regulation. Such regulations potentially harmful because they can hide PFCs detected in water at should include promulgating primary drinking water concentrations below the current reporting limit that still standards for PFCs under the Safe Drinking Water Act, might be found to be unsafe as a result of deliberations and establishing cleanup targets under Superfund and that are under way. other laws. Revise basis for PFOA drinking water health Summary. The present investigation reveals that EPA advisory. The PFOA component of the most recent has issued three successive health advisories for PFOA in U.S. EPA advisory is based upon animal bioassay data drinking water, moving from a “sub-chronic” exposure rather than human immunosuppression studies as value of 400 ng/L to a “chronic” value of 100 ng/L and, previously described, most notably in children. EPA’s most recently, to a (PFOA + PFOS) “lifetime” value of justification fails, as also described earlier. If more 70 ng/L. The present investigation also concludes that persuasive reasoning were available, presumably EPA EPA has failed to show that its latest advisory, even would have applied it. Accordingly, EPA should derive if enforced, is sufficiently stringent to protect public its drinking water advisory based upon the human and environmental health. The process of successive immunosuppression studies, unless the Agency indeed approximation toward an enforceable national standard can justify its contrary approach using more persuasive must be concluded, and a more appropriate, enforceable reasoning. value identified and promulgated forthwith. Available Issue drinking water health advisories for more data explicated in Findings support the following U. S. PFCs. EPA’s most recent advisory addresses PFOA and EPA actions: PFOS, but not the suite of four additional PFCs that • Update UCMR-3 to incorporate Method 537 MDLs are measured routinely via Method 537, and not the for PFCs; numerous additional PFCs to which people might be exposed in their drinking water and/or environmentally. • Revise the PFOA drinking water health advisory by Accordingly, EPA should expand the scope of advisories basing it on immunosuppression, most notably as for PFCs to include at least those that are routinely documented in children; measured via Method 537, and possibly additional PFCs • Issue drinking water health advisories for more as well. Toward this goal, EPA should consider structure- PFCs; activity relationships (SARs) to the maximum extent justifiable given the available data. • Designate PFCs as hazardous substances and PFC- contaminated sites as eligible for inclusion in the SARs may be discerned qualitatively and possibly Federal Superfund’s NPL; and also quantified, producing either qualitative or

106 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 • Promulgate enforceable national regulations/ 15. Valentina Gallo et al., Serum Perfluorooctanoate (PFOA) and standards for PFOA and other PFCs in Perfluorooctane Sulfonate (PFOS) Concentrations and Liver Function Biomarkers in a Population with Elevated PFOA Exposure, 120 Envl. environmental media such as water and soil. Health Persp. 655, 655–60 (May 2012). Endnotes 16. ATSDR, supra note 2, at 295. 1. Units used: 17. L. L. Needham; P. Grandjean, B. Heinzow, et al., Partition of parts per trillion (ppt) = nanograms per liter (ng/L) = 10-12; Environmental Chemicals Between Maternal and Fetal Blood and parts per billion (ppb) = micrograms per liter (ug/L) = 10-9; Tissues, 45 Envl. Sci. & Tech. 1121, 1121–26 (2011); A. E. Loccisano, parts per million (ppm) = milligrams per liter (mg/L) = 10-6; M. P. Longnecker, J. L. Campbell, Jr, et al., Development of PBPK Conversion: ug/mL = mg/L = ppm. models for PFOA and PFOS for Human Pregnancy and Lactation Life Stages. 76 J. of Toxicology & Envl. Health A. 25, 25–57 (2013). 2. U.S. Dep’t of Health & Human Service, Pub. Health Serv., Agency for Toxic Substances & Disease Registry, Draft 18. ATSDR, supra note 2, at 11. Toxicological Profile for Perfluoroalkyls (Aug. 2015) 19. Id. [hereinafter ATSDR], http://www.atsdr.cdc.gov/ToxProfiles/ tp200.pdf (last visited Aug. 15, 2016). 20. Id. 3. Amy Pochodylo & Demian E. Helbling, Target Screening for 21. B. D. Kerger; T. L. Copeland & A. P. DeCaprio. Tenuous Dose- Micropollutants in the Hudson River Estuary During the 2015 response Correlations for Common Disease States: Case Study of Recreational Season (Cornell University, College of Agriculture & Cholesterol and Perfluorooctanoate/Sulfonate (PFOA/PFOS) in the C8 Life Sciences, New York State Water Resources Institute), http:// Health Project, 34 Drug Chemistry & Toxicology 396, 396–404 (Oct. www.riverkeeper.org/wp-content/uploads/2016/07/Appendix- 2011). A-2015-progress-report.pdf (last visited Aug. 15, 2016). 22. A. M. Ingelido et al., Perfluorooctanesulfonate and Perfluorooctanoic 4. Toxic Substances Control Act of 1976, 15 U.S.C. §§ 2601–2697 Acid Axposures of the Italian GeneralPpopulation, 80 Chemosphere (West, Westlaw through P.L. 114-200 (also includes P.L. 114-202 to 1125, 1125–30 (Aug. 2010). 114-219)). 23. NYS DOH. Hoosick Falls and Town of Hoosick Questions and 5. Gloria B. Post et al., Occurrence of Perfluorinated Compounds in Raw Answers About PFOA Blood Testing Program, Albany, New Water from New Jersey Public Drinking Water Systems, 47 Envl. Sci. York; New York State Department of Health, 6 pages, http:// & Tech. 266−75 (2013). www.villageofhoosickfalls.com/Water/Documents/ HealthMonitoringFactSheet-06022016.pdf, June 2016; 6. Letter from Attorney David G. Servadi, Keller and Heckman, LLC (Washington, D.C.) to TSCA Confidential Business 24. ATSDR, supra note 2, at 240–41. (Regarding possible PFOA Information Center (Washington, DC) on behalf of Saint-Gobain mutagenicity ATSDR also found: Performance Plastics Corporation (SGPP; Village of Hoosick A significant increase in mutation frequencies was Falls, Rensselaer County, New York) (Dec. 30, 2014), http:// observed in hamster-human hybrid cells exposed www.villageofhoosickfalls.com/Water/Documents/Saint- to 200 μM PFOA for 1–16 days; a 79% decrease in GobainLetterToEPA_Re_TSCA.pdf (last visited Aug. 15, 2016). cell viability was also observed at this concentra- 7. Marie J. French, New York State: Saint-Gobain, Honeywell tion (Zhao et al. 2011). Concurrent treatment with International responsible for Hoosick Falls water contamination, Albany a ROS inhibitor significantly decreased the muta- Bus. Rev., Feb. 11, 2016, http://www.bizjournals.com/albany/ genic potential, indicating that ROS may play an news/2016/02/11/new-york-state-says-saint-gobain-honeywell. important role in mediating the genotoxic effects of html (“The agency did not rule out holding other companies liable PFOA. PFOA induced DNA damage in Paramecium as the investigation moves forward.”) (last visited Aug. 15, 2016). caudatum following exposure to 100 μM for 12 and 24 hours (Kawamoto et al. 2010). Intracellular ROS 8. Village of Hoosick Falls, Municipal Water, Overview, http://www. was significantly increased and DNA damage was villageofhoosickfalls.com/Water/ (last visited Aug. 15, 2016). not reversed by the application of glutathione, a 9. Village of Hoosick Falls, Annual Drinking Water Quality Report ROS-inhibitor, indicating that intracellular ROS may for 2014, http://www.villageofhoosickfalls.com/Media/PDF/ not be the cause of PFOA-induced DNA damage. WaterQualityReport2014.pdf (last visited Aug. 15, 2016). PFOS did not induce DNA damage in this study. In contrast, no increases in DNA damage or micro- 10. Village of Hoosick Falls. Village Water Quality Update, page 3 of 14 nuclei formation were found in human hepatoma pages; 14 September 2015. HepG2 cells following a 24-hour exposure to PFOA 11. J. A. Shoemaker, P. E. Grimmett & B.K. Boutin, Document No. concentrations as high as 800 μM (Florentin et al. EPA/600/R-08/092, Method 537. Determination of Selected 2011); cytotoxicity was observed at ≥200 μM. Eriksen Perfluorinated Alkyl Acids in Drinking Water by Solid et al. (2010) also found no evidence of DNA damage Phase Extraction and Liquid Chromatography/Tandem Mass in HepG2 cells incubated with 100 or 400 μM PFOA Spectrometry (LC/MS/MS), U. S. Environmental Protection for 24 hours.). Agency, Nat’l Exposure Research Lab. Office of Research and Dev. (Sept. 2009). 25. Vaughn Barry, Andrea Winquist & Kyle Steenland, Perfluorooctanoic Acid (PFOA) Exposures and Incident Cancers among 12. U.S. EPA, Office of Water, EPA 822-R-16-003, Health Effects Adults Living Near a Chemical Plant, 121 Envl. Health Persp. 1313, Support Document for Perfluorooctanoic Acid (PFOA) (May 1313–18, http://dx.doi.org/10.1289/ehp.1306615 (Nov.-Dec. 2013). 2016) [hereinafter EPA PFOA Health Effects], https://www.epa. gov/sites/production/files/2016-05/documents/pfoa_hesd_ 26. Kirsten T. Eriksen et al., Perfluorooctanoate and final_508.pdf (last visited Aug. 15, 2016). Perfluorooctanesulfonate Plasma Levels and Risk of Cancer in the General Danish Population, 101 J. of the Nat’l Cancer Inst. 605, 13. Arlene Blum et al., The Madrid Statement on Poly- and Perfluoroalkyl 605-609, doi: 10.1093/jnci/djp041, jnci.oxfordjournals.org, first Substances (PFCs), 123 Envl. Health Persp. A107, A107-11 (May published online April 7, 2009; 2015), http://ehp.niehs.nih.gov/wp-content/uploads/123/5/ ehp.1509934.alt.pdf (last visited Aug. 15, 2016). 27. Barry, supra note 25, at 1313. 14. ATSDR, supra note 2, at 11. 28. Verónica M. Vieira et al., Perfluorooctanoic Acid Exposure and Cancer Outcomes in a Contaminated Community: A Geographic Analysis,

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 107 121 Envl. Health Pers. 1, 1–7 (Mar. 2013) http://ehp.niehs.nih. 44. Kirsten T. Eriksen et al., Association Between Plasma PFOA and gov/1205829/ (last visited Aug. 15, 2016). PFOS Levels and Total Cholesterol in a Middle-Aged Danish Population, PLOS ONE 29. Lamia Benbrahim-Tallaa, Carcinogenicity of Perfluorooctanoic Acid, (Feb. 18, 2013), http://journals.plos.org/plosone/ Tetrafl Uoroethylene, Dichloromethane, 1,2-Dichloropropane, and article?id=10.1371/journal.pone.0056969 (last visited Aug. 15, 1,3-Propane Sultone (July 10, 2014) 15 The Lancet 924–25, www. 2016). thelancet.com/oncology (last visited Aug. 15, 2016). 45. B.D. Kerger, T. L. Copeland & A.P. DeCaprio, Tenuous Dose- Response Correlations for Common Disease States: Case Study of 30. ATSDR, supra note 2, at 18. Cholesterol and Perfluorooctanoate/sulfonate (PFOA/PFOS) in the C8 31. G. W. Olsen, J. L. Butenhoff & L. R. Zobel, Perfluoroalkyl Chemicals Health Project, 34 Drug Chemistry & Toxicology 396, 396-404 (Oct. and Human Fetal Development: An Epidemiologic Review with Clinical 2011). and Toxicological Perspectives, 27 Reproductive Toxicology 212, supra 212–30 (June 2009). 46. Gallo, note 15, at 655. supra 32. D. Caserta et al., The Influence of Endocrine Disruptors in a Selected 47. ATSDR, note 2, at 304. (“The available data from Population of Infertile Women, 29 Gynecological Endocrinology epidemiology and animal studies are inconclusive to evaluate 444, 444–47 (May 2013). whether the toxicity of perfluoroalkyls is mediated through the neuroendocrine axis or whether they have the ability to mimic or 33. C. La Rocca et al., Exposure and Effective Dose Biomarkers for block endogenous hormone. . . The effects observed in humans Perfluorooctane Sulfonic Acid (PFOS) and Perfluorooctanoic Acid and/or animals exposed to perfluoroalkyls that may be related (PFOA) in Infertile Subjects: Preliminary Results of the PREVIENI to a disruption of the endocrine system include alterations in Project, 215 Int’l J. of Hygiene and Envl. Health 206, 206–11 (Feb. reproductive hormone levels, infertility, development of the 2012). reproductive system, alterations of the endometrium or mammary 34. Chunyuan Fei et al., Maternal Levels of Perfluorinated Chemicals and gland, and alterations in the function of endocrine glands such as Subfecundity, Human Reproduction, 212–30 (May 2009). the thyroid.”). 35. Lyndsey A. Darrow, Cheryl R. Stein & Kyle Steenland, Serum 48. Kyle Steenland, Liping Zhao, Andrea Winquist & Christine Parks, Perfluorooctanoic Acid and Perfluorooctane Sulfonate Concentrations Ulcerative Colitis and Perfluorooctanoic Acid (PFOA) in a Highly in relation to birth outcomes in the mid-Ohio Valley, 2005–2010, 121 Exposed Population of Community Residents and Workers in the Mid- Envl. Health Persp. 1207, 1207–13, http://dx.doi.org/10.1289/ Ohio Valley, 121 Envl. Health Persp. 900, 900–05 (2013), http:// ehp.1206372 (last visited Aug. 15, 2016). dx.doi.org/10.1289/ehp.1206449 (last visisted Aug. 15, 2016). 36. Benjamin J. Apelberg et al., Cord Serum Concentrations of 49. Hines, supra note 41, at 97. Perfluorooctane Sulfonate (PFOS) and Perfluorooctanoate (PFOA) 50. M.K. Skinner et al., Ancestral Dichlorodiphenyltrichloroethane (DDT) in Relation to Weight and Size at Birth, 115 Envl. Health Persp. Exposure Promotes Epigenetic Transgenerational Inheritance of Obesity, 1670, 1670–76, http://www.ncbi.nlm.nih.gov/pmc/articles/ 11 BMC Med. 228 (2013). PMC2072847/ (last visited Aug. 15, 2016). 51. Thorhallur I. Halldorsson et al., Prenatal Exposure to 37. C. Fei et al., Perfluorinated Chemicals and Fetal Growth: A Study Perfluorooctanoate and Risk of Overweight at 20 Years of Age: A Within the Danish National Birth Cohort, 115 Envl. Health Persp. Prospective Cohort Study, 120 Envl. Health Persp. 668, 668–73 (May 1677, 1677–82 (Nov. 2007). 2012); R.R. Newbold et al., Effects of Endocrine Disruptors on Obesity, 38. M. P. Hamm et al., Maternal Exposure to Perfluorinated Acids and 31 Int’l J. of Andrology 201, 201–08 (2008). Fetal Growth, J. of Exposure Sci. & Envl. Epidemiology 589, 589–97 52. Kerry Grens, Obesogens—Low doses of environmental chemicals (Nov. 2010). can make animals gain weight. Whether they do the same to humans 39. David A. Savitz et al., Perfluorooctanoic Acid Exposure and Pregnancy is a thorny issue, The Scientist (Nov. 1, 2015), http://www.the- Outcome in a Highly Exposed Community, 23 Epidemiology 386 (May scientist.com/?articles.view/articleNo/44278/title/Obesogens 2012). (last visited Aug. 15, 2016). 40. Deirdre K. Tucker et al., The Mammary Gland is a Sensitive Pubertal 53. EPA PFOA Health Effects, supra note 12, at 3-24. (“Antibody Target in CD-1 and C57Bl/6mice Following Perinatal Perfluorooctanoic responses to diphtheria and tetanus toxoids following Acid (PFOA) Exposure, 54 Reproductive Toxicology 26, 26–36 childhood vaccinations were assessed in context of exposure (2015). to five perfluorinated compounds (Grandjean et al. 2012). The prospective study included a birth cohort of 587 singleton births 41. E. P. Hines et al., Phenotypic Dichotomy Following Developmental during 1999–2001 from the National Hospital in the Faroe Islands. Exposure to Perfluorooctanoic Acid (PFOA) in Female CD-1 Mice: Low Serum antibody concentrations were measured in children at age Doses Induce Elevated Serum Leptin and Insulin, and Overweight in 5 years prebooster, approximately 4 weeks after the booster, and Mid-life, 25 Molecular & Cellular Endocrinology 97, 97–105 at age 7 years. Prenatal exposures to perfluorinated compounds (May 2009). were assessed by analysis of serum collected from the mother 42. A DuPont legacy: PFOA Pollution (Delaware Riverkeeper, May during week 32 of pregnancy (PFOA geometric mean 0.0032 2009), http://www.delawareriverkeeper.org/sites/default/files/ μg/mL; IQR 0.00256–0.00401); postnatal exposure was assessed resources/Factsheets/fact%20sheet.pfoa.final%205.09.pdf (last from serum collected from the child at 5 years of age (PFOA visited Aug. 15, 2016); Andrew Welsh-Huggins, Woman Awarded geometric mean 0.00406 μg/mL; IQR 0.00333–0.00496). Multiple $1.6 Million Over DuPont Chemical in Water, Associated Press (Oct. regression analyses with covariate adjustments were used to 7, 2015); Tiffany Kary & Denise Trowbridge, Dupont, Chemours estimate the percent difference in specific antibody concentrations handed another loss in Teflon chemical case, Bloomberg News, July 6, per twofold increase in PFOA concentration in both maternal 2016, http://www.bloomberg.com/news/articles/2016-07-06/ and 5-year serum. Maternal PFOA serum concentration was dupont-loses-third-case-over-teflon-toxin-chemours-to-pay (last negatively associated with antidiphtheria antibody concentration visited Aug. 15, 2016). (-16.2%) at age 5 before booster. The biggest effect was found in comparison of antibody concentrations at age 7 with serum 43. U.S. Dep’t of Health & Human Service, Pub. Health Serv., PFOA concentrations at age 5 where a twofold increase in PFOA Agency for Toxic Substances & Disease Registry, Health was associated with differences of -36% (95% CI, -52%–-14%) and Consultation: 3M Chemolite, Perfluorochemical Releases -25% (95% CI, -43%–-2%) for tetanus and diphtheria, respectively. at the 3M—Cottage Grove Facility, City of Cottage Additionally at age 7, a small percentage of children had Grove, Washington County, Minnesota; EPA Facility ID: antibody concentrations below the clinically protective level of 0.1 MND006172969 (Feb. 18, 2005), 27.

108 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 international unit (IU) /mL. The ORs of antibody concentrations determine with certainty if the health effects were falling below this level were 4.20 (95% CI, 1.54–11.44) for tetanus caused by PFOA or some other factors. These studies and 3.27 (95% CI, 1.43–7.51) for diphtheria when age 7 antibody did not show that PFOA caused diseases… levels were correlated with age 5 PFOA serum concentrations. Maternal and child PFOS levels also were negatively associated An association does not mean that one thing caused with antibody titers…”). the other. For example, people with blue eyes tend to be taller than people with other eye colors. 54. ATSDR, supra note2, at 313–14. This is an association. However, eye color does 55. Id. not cause people to be taller and height does not cause people to have blue eyes. Northern European 56. EPA PFOA Health Effects, supra note 12, at B-6–B-14. ancestry is known to be associated with blue eyes, 57. Id. and Northern European ancestry is associated with 58. ATSDR, supra note 2, at 435. being relatively tall. But genetics alone do not cause increased height. Other factors, such as nutrition, are 59. U.S. Envl. Prot. Agency, Statement on Private Wells in the important as well. Town of Hoosick and Village of Hoosick Falls, N.Y. (Jan. 28, 2016) (“The EPA is developing a lifetime health advisory level [emphasis added]. for PFOA. While this work continues, the EPA recommends that people in the Town of Hoosick and the Village of Hoosick Falls 67. Id. who have private wells at which PFOA has been found to be What do the studies show about health effects, cancer, and present at a level greater than 100 parts per trillion not use that PFOA exposure? water for drinking or cooking…”). Some human health studies have found associations 60. Letter from Thomas Berkman (New York State Dep’t of Envl. between PFOA exposure and health effects. Others have Conservation, Deputy Commissioner) to Edward Canning not. The studies that found associations were not able to (Global Environmental Health and Safety Manager, Saint-Gobain determine with certainty if the health effects were caused Performance Plastics) and D. Evan Van Hook (Corporate Vice by PFOA or some other factors. These studies did not President, Honeywell International, Inc.) (Feb. 11, 2016), http:// show that PFOA caused diseases… www.dec.ny.gov/docs/administration_pdf/pfoa.pdf (last visited An association does not mean that one thing caused the Aug. 15, 2016). other. For example, people with blue eyes tend to be taller 61. U.S. Envl. Prot. Agency, Office of Water, EPA 815-F-12-003, The than people with other eye colors. This is an association. Third Unregulated Contaminant Monitoring Rule (UCMR 3)— However, eye color does not cause people to be taller and Fact Sheet for Assessment Monitoring of List 1 Contaminants height does not cause people to have blue eyes. Northern (May 2012), https://www.epa.gov/dwucmr/third-unregulated- European ancestry is known to be associated with blue contaminant-monitoring-rule (last visited Aug. 16, 2016). eyes, and Northern European ancestry is associated with being relatively tall. But genetics alone do not cause 62. A. M. Calafat, Z. Kuklenyik, J. A. Reidy, et al., Serum Concentrations of 11 Polyfluoroalkyl Compounds in the U.S. Population: Data From the increased height. Other factors, such as nutrition, are important as well” National Health and Nutrition Examination Survey (NHANES), 41 [emphasis added]. Envl. Sci. & Tech. 2237, 2237–42 (2007). 68. “The level shown for PFOA in blood for the Hoosick Falls area is the 63. Philippe Grandjean & Richard Clapp, Perfluorinated Alkyl geometric mean and is based on test results for 2,081 participants Substances: Emerging Insights Into Health Risks, 25 New Solutions: including people using Village water, people using private wells, people A J. of Envl. & Occupational Health Policy 147, 147–63 (2015); who work in the area, and former residents.” N.Y.S. Dep’t of Health, K. Kato, A. M. Calafat, L. Y. Wong, et al., Polyfluoroalkyl Compounds PFOA Biomonitoring (Blood Sampling) Program, https://www. in Pooled Sera From Children Participating in the National Health and health.ny.gov/environmental/investigations/hoosick/docs/ Nutrition Examination Survey 2001–2002, 43 Envl. Sci. & Tech. 2641, pfoa_blood_sampling_q_and_a_8-1-16.pdf (last visited Aug. 15, 2641–47 (2009). 2016). 64. U.S. Envl. Prot. Agency, Office of Water, EPA 822-R-16-005, 69. K. Kato, L. Y. Wong, L. T. Jia, et al., Trends in Exposure to Drinking Water Health Advisory for Perfluorooctanoic Acid Polyfluoroalkyl Chemicals in the U.S. Population: 1999–2008, 45 Envl. (PFOA) (May 2016), https://www.epa.gov/sites/production/ Sci. & Tech. 8037, 8037–45 (2011); G. W. Olsen, C. C. Lange, M. E. files/2016-05/documents/pfoa_health_advisory_final_508.pdf Ellefson, et al., Temporal Trends of Perfluoroalkyl Concentrations in (last visited Aug. 15, 2016), Appendix B: Studies Evaluated Since American Red Cross Adult Blood Donors, 2000–2010, 46 Envl. Sci. & August 2014. Tech. 6330, 6330–38 (2012). 5. The study elucidates the mode of action for any toxicity 70. Village of Hoosick Falls, Village Water Quality Update, page 3 of endpoint or toxicokinetic property associated with PFOA 14 pages; 14 September 2015. exposure. 71. C. Lau, J.R. Thibodeaux, R.G. Hanson, et al., Effects of 90 6. The effects observed differ from those in other studies Perfluorooctanoic Acid Exposure During Pregnancy in the Mouse, Toxicological Sci. 510 with comparable protocols. , 510–08 (2006). On Jan. 14, 2015, a public meeting was held in the Village of Hoosick Falls, at which I alerted 65. A. B. Hill, The Environment and Disease: Association or Causation? 58 attending EPA Region 2 officials of the irrelevance of the EPA Proceedings of the Royal Soc. of Med. 295, 295-300 (1965). Provisional Health Advisory. 66. N.Y.S. Dep’t of Health, PFOA Biomonitoring (Blood Sampling) 72. Philippe Grandjean & Esben Budtz-Jørgensen, Immunotoxicity of Program, https://www.health.ny.gov/environmental/ Perfluorinated Alkylates: Calculation of Benchmark Doses Based on investigations/hoosick/docs/pfoa_blood_sampling_q_ Serum Concentrations in Children, 12 Envl. Health 1, 1-7 (2013), and_a_8-1-16.pdf (last visited Aug. 15, 2016): http://www.ehjournal.net/content/12/1/35 (last visited Aug. 15, 2016). 5. What do the studies show about health effects, cancer, and PFOA exposure? Some human health 73. Philippe Grandjean & Richard Clapp, Perfluorinated Alkyl studies have found associations between PFOA Substances: Emerging Insights Into Health Risks, 25 New Solutions: exposure and health effects. Others have not. The A J. of Envl. & Occupational Health Policy 147, 147–63 (2015). studies that found associations were not able to

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 109 74. Philippe Grandjean, Carsten Heilmann, Pal Weihe, Flemming 15, 2016). Serum Nielsen, Ulla B. Mogensen & Esben Budtz-Jørgensen, 81. DeWitt Comment and EPA Response: Vaccine Antibody Concentrations in Adolescents Exposed to Perfluorinated Compounds, Envl. Health Persp., Advance B. Granum, L. S. Haug, E. Namork, et al., Pre-natal Exposure to Publication, (Aug. 9, 2016) http://dx.doi.org/10.1289/EHP275 Perfluoroalkyl Substances May be Associated with Altered Vaccine (last visited Aug. 15, 2016). Antibody Levels and Immune-Related Health Outcomes in Early Childhood, 10 J. of Immunotoxicology 373, 373–79 (2013). 75. Bill Walker & David Andrews, Teflon Chemical Unsafe at Smallest Doses—EPA’s “Safe” Level is Hundreds or Thousands of Times Too C. Looker, M.I. Luster, A.M. Calafat, et al., Influenza Vaccine Weak, Environmental Working Group, http://www.ewg.org/ Response in Adults Exposed to Perfluorooctanoate and Perfluorooctane research/teflon-chemical-harmful-at-smallest-doses (Aug. 2015). Sulfonate, 138 Toxicological Sci. 76, 76–88 (2014). 76. U.S. Envl. Prot. Agency, Fact Sheet: PFOA and PFOS Any time the Grandjean et al. (2012) findings related Drinking Water Health Advisories (May 2016), https:// to PFCS and vaccine responses are discussed, these www.epa.gov/sites/production/files/2016-05/documents/ references could/should be discussed as well as drinkingwaterhealthadvisories_pfoa_pfos_5_19_16.final_.1.pdf they report related findings in human populations. (last visited Aug. 15, 2016). Although they also are confounded by multiple PFCs (as was the Grandjean et al. study), they EPA is evaluating PFOA and PFOS as drinking lend additional support to immunotoxicity as an water contaminants in accordance with the process endpoint worthy of consideration. However, it is required by the Safe Drinking Water Act (SDWA)… noted that these references were published after [and] In accordance with SDWA, EPA will consider the cutoff date for consideration for inclusion in the the occurrence data from UCMR 3, along with the document. peer reviewed health effects assessments supporting the PFOA and PFOS Health Advisories, to make EPA Response. “Both the Granum et al. 2013 and Looker et al. a regulatory determination on whether to initiate 2014 studies were added to both HESDs [Health Effect Support the process to develop a national primary drinking Documents]. A summary and conclusions write-up was added to water regulation. the epidemiology section, which discusses the immune function- related findings together.” 77. U.S. Envl. Prot. Agency, Office of Water, EPA 822-R-16-003, Health Effects Support Document for Perfluorooctanoic Statement in EPA Health Effects Assessment Support Document Acid (PFOA) (May 2016), https://www.epa.gov/sites/ for PFOA. “None of the studies demonstrated a clinically production/files/2016-05/documents/pfoa_hesd_final-plain. recognizable increased risk of infectious diseases as a consequence pdf (last visited Aug. 15, 2016); U.S. Envl. Prot. Agency, Office of a diminished vaccine response. Overall, although these results of Water, EPA 822-R-16-005, Drinking Water Health Advisory are not sufficient to establish a causal effect of PFOA exposure on for Perfluorooctanoic Acid (PFOA) (May 2016), https:// an impaired serological vaccine response, some of the positive www.epa.gov/sites/production/files/2016-05/documents/ associations are striking in magnitude and require replication in pfoa_health_advisory_final_508.pdf (last visited Aug. 15, 2016); independent studies.” U.S. Envl. Prot. Agency, Office of Water, EPA 822-R-16-002, 82. U.S. Envl. Prot. Agency, Office of Inspector General Audit Health Effects Support Document for Perfluorooctane Report, Grant Management, Report No. 2001-P-00002, Region Sulfonate (PFOS), (May 2016), https://www.epa.gov/sites/ 2’s Management of Children’s Health Risk Initiative and Related production/files/2016-05/documents/pfos_hesd_final_508.pdf Projects (Jan. 30, 2001), https://www.epa.gov/sites/production/ (last visited Aug. 15, 2016); U.S. Envl. Prot. Agency, Office of files/2015-12/documents/kidshealth.pdf (last visited Aug. 15, Water, Drinking Water Health Advisory for Perfluorooctane 2016). Sulfonate (PFOS), EPA 822-R-16-004 (May 2016), https://www. epa.gov/sites/production/files/2016-05/documents/pfos_ 83. N.Y.S. Dep’t of Health, PFOA in Drinking Water in the Village of health_advisory_final-plain.pdf (last visited Aug. 15, 2016); U.S. Hoosick Falls and Town of Hoosick, https://www.health.ny.gov/ Envl. Prot. Agency, Office of Science and Technology, Health environmental/investigations/hoosick/ (last accessed Aug. 15, and Ecological Criteria Division, EPA Response to External 2016). Peer Review Comments on EPA Draft Documents: Health The State Health Department is conducting an Effects Support Document for Perfluorooctanoic Acid (PFOA) investigation to see if there are unusual elevations and Health Effects Support Document for Perfluorooctane of cancer among Village residents. The investigation Sulfonate (PFOS) (May 2016), https://www.epa.gov/sites/ will include total cancers and specific types of cancer production/files/2016-05/documents/response_to_pfoa_pfos_ diagnosed from 1995 through 2012. To accomplish peer_review_comments_508.pdf (last visited Aug. 15, 2016); Joel this, the State Health Department will use data from Beauvais, U.S. Envl. Prot. Agency, Science Guides Public Health the New York State Department of Health Cancer Protection for Drinking Water (May 2016), https://blog.epa.gov/ Registry, which receives reports on all cases of blog/2016/05/protection-for-drinking-water/ (last visited Aug. cancer occurring in New York State. The planned 15, 2016). start date is 1995 because street address at the date 78. U.S. Envl. Prot. Agency, Office of Water, EPA 822-R-16-005, of diagnosis is available in computerized form for Drinking Water Health Advisory for Perfluorooctanoic Acid all cases starting with that year. The planned end (PFOA) (May 2016), https://www.epa.gov/sites/production/ date is 2012 because 2012 is currently the most recent files/2016-05/documents/pfoa_health_advisory_final_508.pdf year for which data are available. The State Health (last visited Aug. 15, 2016). Department will produce a report on the findings of the investigation. Id. 79. Grandjean & Budtz-Jørgensen, supra note 72. 84. Martin Kulldorff, William F. Athas, Eric J. Feuer, Barry A. Miller 80. U.S. Envl. Prot. Agency, Office of Science and Technology, & Charles R. Key, Evaluating Cluster Alarms: A Space-Time Scan Health and Ecological Criteria Division, EPA Response to Statistic and Brain Cancer in Los Alamos, New Mexico, 88 American External Peer Review Comments on EPA Draft Documents: Journal of Public Health 1377, 1377–80 (Sept. 1998). Health Effects Support Document for Perfluorooctanoic Acid (PFOA) and Health Effects Support Document for 85. Steven N. Goodman, Aligning statistical and scientific reasoning, Perfluorooctane Sulfonate (PFOS) (May 2016), https://www. Science, 1180–81 (June 3, 2016); Ronald L. Wasserstein & Nicole epa.gov/sites/production/files/2016-05/documents/response_ A. Lazar, The ASA’s Statement on p-Values: Context, Process, and to_pfoa_pfos_peer_review_comments_508.pdf (last visited Aug. Purpose, 70 The American Statistician 129–33, (June 25, 2016).

110 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 Scientific conclusions and business or policy Using a Prolonged Zebrafish Early Life Stage Test, 82 Chemosphere decisions should not be based only on whether a 764, 764–72 (Jan. 2011). p-value passes a specific threshold. Practices that reduce data analysis or scientific Robert Michaels ([email protected]) is President inference to mechanical “bright-line” rules (such of the Schenectady-based RAM TRAC Corporation, as “p < 0.05”) for justifying scientific claims or conclusions can lead to erroneous beliefs and poor and a toxicologist focusing on assessment and decision making. A conclusion does not immediately management of risks to public health potentially become “true” on one side of the divide and “false” posed by environmental contaminants. He has served on the other. Researchers should bring many numerous corporate clients, the U.S. Congressional contextual factors into play to derive scientific Office of Technology Assessment, and public interest inferences, including the design of a study, the quality of the measurements, the external evidence organizations such as the Natural Resources Defense for the phenomenon under study, and the validity Council (NRDC). Dr. Michaels chaired the State of of assumptions that underlie the data analysis. Maine Scientific Advisory Panel, and for 20 years Pragmatic considerations often require binary, chaired the Certification Review Board of the Academy “yes-no” decisions, but this does not mean that p-values alone can ensure that a decision is correct of Board Certified Environmental Professionals. He has or incorrect. The widespread use of “statistical been Secretary of the NFPA Committee on Classification significance” (generally interpreted as “p ≤ 0.05”) as and Properties of Hazardous Chemicals, Board a license for making a claim of a scientific finding (or Member of the National Association of Environmental implied truth) leads to considerable distortion of the Professionals, and Member of the Editorial Advisory scientific process. Id. Boards of Springer-Verlag and Cambridge University 86. Kulldorff et al., supra note 84, at 1378. Press journals. He earned his doctorate at SUNY 87. EPA, supra note 61, at 3. at Stony Brook in 1979, and in 2004 was awarded 88. A. Hagenaars, L. Vergauwen, W. De Coen & D. Knapen, Structure- ABCEP’s Kramer Medal recognizing his professional Activity Relationship Assessment of Four Perfluorinated Chemicals contributions.

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NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 111 Administrative Decisions Update By Robert A. Stout Jr.

In the Matter of the Al- found that DEC staff satisfied its burden by establishing, leged Violation of Article 9 of by a preponderance of the evidence, that Respondent has the Environmental Conserva- maintained and used a structure, a portion of which is tion Law (“ECL”) of the State on State lands, and that Respondent does not possess a of New York and Title 6, Part permit or other authorization to do so. The Commissioner 190 of the Official Compilation further found that based on survey measurements made of Codes, Rules and Regulations in 1931 and thereafter, the evidence established an ap- of the State of New York (“6 proximately 8-foot encroachment. NYCRR”), by Mark A. Demeo, With respect to the allegations contained in the Respondent. amended complaint alleging that additional structures Order of the owned by Respondent may encroach on state land, in- Commissioner cluding “infrastructure” encroachments, the Commis- sioner noted that a neighboring property owner testified August 15, 2016 Robert A. Stout Jr. Summary of the Decision that other structures, including an underground septic tank, also encroached on state lands and created a draw- Respondent was alleged to have used a portion of a ing at the hearing to support his testimony. The Commis- structure on state land without a permit or other authori- sioner noted that the neighboring property owner is not a zation from the New York State Department of Environ- surveyor and nothing further was offered to support the mental Conservation (“DEC”) because a portion of Re- claims of additional encroachments. Therefore, the Com- spondent’s structure, known as the “Campers Last Stop,” missioner found that insufficient evidence was submitted encroaches on state lands. The complaint was subsequent- with respect to the additional structures. ly amended to allege that additional structures owned by Respondent may encroach on state lands. The Commissioner also diverged from the ALJ with respect to the required remedial relief related to the store The Administrative Law Judge (“ALJ”) recommended: encroachment. The Commissioner found that the proceed- (i) assessing a civil penalty of one hundred dollars ($100); ing did not fully develop the record, in part because it did (ii) ordering Respondent to remove that portion of the not reflect how much longer Respondent intends to oper- store that encroaches on state land and all other encroach- ate the store or what the anticipated structural life of the ments pursuant to a DEC-approved plan and (iii) directing store is. The Commissioner agreed that a site visit would DEC staff to conduct a site visit to confirm the property be appropriate in order to mark the encroachment of the line and determine if any other structures or “infrastruc- store structure and to determine the presence of any other ture associated with (Respondent’s) use of his property possible encroachments. also encroach on state land.” Order of the Commissioner The Commissioner found that Respondent used and maintained on state lands a portion of a structure that he The Commissioner assessed a civil penalty of $100 owns, known as Campers Last Stop store, and assessed a for the store encroachment. The matter was remanded to civil penalty in the amount of $100. However, finding that the hearings office with instructions to give consideration the proceeding did not fully develop the record regarding to: the expected duration of future use of the store and its remedial relief, the matter was remanded to the Office of estimated structural life; the existence of any other struc- Hearings and Mediation Services for a further hearing to tures and infrastructure on Respondent’s property; the develop the record with respect to remedial relief. Addi- date the structures or infrastructure was constructed or tionally, the Commissioner directed that a site visit be con- placed on state lands; who was responsible for creating ducted which would identify the presence and extent of the encroachments; and options to consider for addressing any structures and infrastructure in addition to the Camp- the encroachments. ers Last Stop store that are encroachments on state lands Accordingly, notwithstanding the Commissioner’s and obtain other information that the ALJ determines apparent rejection of Respondent’s equitable arguments would be beneficial to the record. relating to the limited scope of the encroachment in a foot- Background note (“this argument disregards principles of real property law and, moreover, that the property at issue here are State Respondent purchased the property containing the lands with constitutional protection...”), the instructions on camping store in 1996 and has operated it as a seasonal remand appear to suggest flexibility with respect to the re- business. The store was constructed at least 50 years ago medial relief imposed upon development of the record. and operated as a store prior to its purchase by Respon- dent. A survey conducted by DEC in 2002 for the pur- Robert A. Stout Jr. is an associate in the Environ- poses of locating a new boundary fence revealed that the mental Practice Group of Whiteman Osterman & Hanna boundary line runs through the store. The Commissioner LLP in Albany, New York.

112 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 Recent Decisions and Legislation in Environmental Law

Recent Decisions ure to join a necessary party, and because the plaintiff’s causes of action were time barred.17 Argyle Farm and Properties, LLC v. Watershed Agricultural Council, 135 A.D.3d 1262 (3d Dep’t 2016) Procedural History Facts The Supreme Court dismissed the complaint, from The plaintiff purchased a 475-acre farm within the which the plaintiff appeals. New York City (“the City”) watershed in 2002.1 The Issue Surface Water Treatment Rule2 requires the City to ad- equately control land use within the watershed, while Can a cause of action to modify or terminate a conser- Agricultural and Markets Law § 305-a precludes the City vation easement not listed under Environmental Conser- from regulating day-to-day operations of farmers within vation Law § 49-0307 be sustained? the watershed.3 The City has adopted a practice of enter- Rationale ing into agreements with farmers within the watershed through the Watershed Agricultural Council of the New The Supreme Court, Appellate Division, Third De- York City Watershed (WAC).4 The WAC administers the partment, did not decide upon the issues of standing, purchase of conservation easements that allow farms to statutes of limitations, or dismissal regarding most of the 18 operate while allowing the WAC’s Easement Committee plaintiff’s claims. However, the Court noted that ECL to regulate any commercial or residential development.5 § 49-0307 allows only three reasons for modification or In order to qualify for a conservation easement, the farm rescission of a non-profit’s conservation easement: “(1) must enter an agreement with WAC known as a Whole pursuant to the terms of the instrument creating the ease- Farm Plan (WFP), which requires the implementation of ment, (2) in a proceeding pursuant to [Real Property Ac- best management practices to protect the watershed.6 tions and Proceedings Law § 1951], or (3) by eminent do- main.”19 Neither eminent domain nor RPAPL § 49-0307 The plaintiff and WAC entered into a contract for the applied to the easement held by the non-profit WAC.20 sale of a conservation easement in December 2006, con- tingent on WFP agreement prior to closing.7 The plaintiff The terms of the conveyance provided that any declined WAC’s offer to have the WFP from an adjoining amendment or modification requires the written consent property, where the plaintiff was leasing land, extended of both the plaintiff and WAC, unless the modification to cover the plaintiff’s land.8 However, the WFP “was is “material,” in which case the Attorney General must 21 incorporated by reference into the deed conveying the also consent. Termination is allowed for condemnation conservation easement” upon the January 2008 clos- or on joint request of the parties where conditions have ing,9 along with Baseline Documentation Report that changed “‘so much that it becomes impracticable to ful- 22 described the property’s Acceptable Development Areas fill’ the purpose of the easement.” 10 (ADAs). None of the causes of action based on common-law Before closing, the plaintiff sought to install a septic contract principles are contained in the statute or in the 23 system for a converted barn residence.11 The defendants, easement itself, and were therefore not sustainable. The WAC and the New York City Department of Environ- Court viewed the plaintiff’s request for “interpretation” mental Conservation, maintained that the plaintiff was of the easement as “effectively . . . seeking to reform the required to install the septic system within the ADAs of easement,” which is not allowable under the terms of the property.12 Nonetheless, the plaintiff was issued a the easement or under ECL § 49-0307, since there was no 24 permit in January 2011, and subsequently installed the showing of changed conditions. 13 septic system outside the ADAs. The Court similarly dismissed the plaintiff’s claim WAC determined, within its guidelines issued in No- under General Business Law § 349, because the plaintiff vember 2013, that septic systems generally are required had not alleged any misleading or deceptive practice to be installed within a property’s ADAs.14 Because the that impacted consumers at large, rather than just the 25 newly issued guidance conflicted with previously con- plaintiff, as required by that statute. The plaintiff’s al- veyed conservation easements, WAC offered to amend a legations that it had been harmed by WAC’s voting pro- property’s ADAs at WAC’s expense.15 Rather than avail- cedures in adopting the septic system guidelines were 26 ing itself of this option, the plaintiff filed suit requesting non-justiciable. the Supreme Court, Delaware County, to rescind the con- Conclusion servation easement, declare the plaintiff’s rights under The Appellate Division ruled that ECL § 49-0307 only the easement, and award compensatory damages.16 The allows for modification or termination of a conserva- defendants requested dismissal for lack of standing, fail- tion easement in certain circumstances: under power of

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 113 eminent domain, pursuant to RPAPL § 49-0307, or by the The executive director and two board members of terms of the easement itself. Those circumstances had not the Long Island Pine Barrens Society, Inc. (“Society”) been met in this case. challenged in the Commission’s decision in an Article 78 proceeding, brought in their capacities within the organi- David Crossman zation and individually.4 Albany Law School ‘17 Procedural History Endnotes The Supreme Court, Suffolk County, ruled that the 1. Argyle Farm and Properties, LLC v. Watershed Agricultural Council, petitioners did not have standing. On the merits, the 135 A.D.3d 1262, 1262 (3d Dep’t 2016). court held that the Commission’s “determination was not 2. 40 C.F.R. 141.70–141.75 arbitrary, capricious, or an abuse of discretion.”5 3. Id. at 1262–63. 4. Id. at 1263. Issue 5. Id. Whether the petitioner Society had standing to bring 6. Id. an Article 78 petition for review of the granting of an ex- 7. Id. traordinary hardship waiver to expand Westhampton’s gravel mining? 8. Id. 9. Id. Rationale 10. Id. at 1264. To have standing, an organization must show that 11. Id. at least one of its members has standing to sue; that the 12. Id. at 1263–64. organization’s asserted interests are “germane to its 13. Id. at 1264. purposes” and that the participation of the individual 14. Id. members is not required for it to assert the claim or 6 15. Id. grant appropriate relief. The Society’s executive direc- tor established that he met the first prong of the test for 16. Id. standing by demonstrating that he “uses and enjoys” the 17. Id. area “to a greater degree than most other members of the 18. Id. public,” both individually and professionally.7 Moreover, 19. Id. at 1265. the “zone of interests” which the Society seeks to protect 20. Id. include the threatened injury that further development 21. Id. in the Pine Barrens represents.8 The Supreme Court, 22. Id. Appellate Division, Third Department, found that the 23. Id. Society met the second and third prongs of the test, and 9 24. Id. therefore had standing. 25. Id. at 1266. Although the Society had standing to challenge the 26. Id. at 1266–67. decision, the challenge failed on its merits. The Appel- late Division found that the record supported the de- * * * terminations that the hardship was not self-created and that there was no other beneficial use of the property.10 Long Island Pine Barrens Soc’y, Inc. v. Cent. Pine Additionally, the court found that the property would Barrens Joint Planning & Policy Comm’n, be subject to other zoning restrictions if it were used for 138 A.D.3d 996 (2d Dep’t 2016) something other than a mine. The Commission’s deter- mination was not arbitrary and capricious or an abuse of 11 Facts discretion. Westhampton Property Associates, Inc. (“Westhamp- Conclusion ton”) is the owner and operator of a gravel mine, part of The Appellate Division ruled that the Supreme Court which is located in the Long Island Central Pine Barrens incorrectly held that petitioners did not have standing core preservation area within the Town of Southamp- 1 to commence an Article 78 proceeding to reviewing the ton. Pursuant to Environmental Conservation Law §§ Commission’s determination. However, in reviewing the 57-0121(10) and 57-0123(3)(a), Westhampton requested decision, the Appellate Division found that the decision an extraordinary hardship waiver to expand the depth of 2 was not arbitrary and capricious, nor an abuse of discre- its mine 18 feet. After holding public hearings, the Cen- tion. tral Pine Barrens Joint Planning and Policy Commission (“Commission”) granted the waiver.3 David Crossman Albany Law School ‘17

114 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 Endnotes 20149 in which the court annulled the the Board’s deci- 1. Long Island Pine Barrens Soc’y, Inc. v. Cent. Pine Barrens Joint sion to rescind the negative declaration made pursuant to Planning & Policy Comm’n, 138 A.D.3d 996, 996 (2d Dep’t 2016). SEQRA.10 2. Id. Issues 3. Id. 4. Id. (1) Whether the court erred in determining that Board members and the mayor of the Village of Pittsford 5. Id. had a conflict of interest that disqualified them 6. Id. at 997 (quoting Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 775 [1991]). from participating in deliberations or determina- tions concerning the Project. 7. Id. 8. Id (2) Whether the court properly annulled the chal- 9. Id. lenged resolution on the grounds that the Board 10. Id. at 998. lacked authority to rescind its negative decision under the circumstances of the case. 11. Id. Rationale * * * The Fourth Department, Appellate Division, found the court erred in determining that the Board member Pittsford Canalside Props., LLC v. Village of and mayor had a conflict of interest that disqualified Pittsford, 137 A.D.3d 1566 (4th Dep’t 2016) them from participating in deliberations or determina- tions concerning the Project.11 The Appellate Division Facts held that “resolution of questions of conflict of interest Petitioner is the owner and developer of Westport required a case-by-case examination of the relevant facts Crossing (hereinafter “Project”), a proposed mixed-use and circumstances.”12 Although a board member and development in respondent Village of Pittsford (herein- the mayor expressed opposition to the Project before and after “Village”).1 Respondent Board of Trustees of Village after their elections, they were not disqualified from par- of Pittsford (hereinafter “Board”) acted as lead agency for ticipating. Inasmuch as their “alleged bias involved only the purpose of conducting an environmental review of expressions of personal opinion,” their opposition did not 13 the Project pursuant to the State Environmental Quality constitute a basis for finding a conflict of interest.” The Review Act (SEQRA).2 After a three-year review of the court agreed with respondents that the “expression of Project, the Board issued a negative declaration, finding opinion by [Board members and the mayor] on matters 14 that the Project would not have a significant adverse en- of public concern ‘is to be encouraged, not penalized.’” vironmental impact, and issued the requisite special per- However, the court rejected Respondent’s claim that the mits for the Project.3 Board has authority to rescind its negative decision be- cause the Board was only authorized to rescind its nega- Following approval by the Village Planning Board tive declaration “prior to its decision to undertake, fund, of the preliminary site plan for the Project, the Board ad- or approve an action,” and the Board had made its deci- opted a resolution in which it made findings that there sion to approve the Project when it issued the resiquite had been “substantive changes” to certain aspects of the special permits.15 Project that would have a “potential significant adverse impact” which was not considered in the original SEQRA Conclusion review.4 Subsequently, the Board passed a resolution re- The court modified the judgment, in part, and con- scinding the negative declaration and issued a positive cluded that a member of the Board and the mayor did not declaration under SEQRA.5 engage in a conflict of interest that disqualified them from participating in deliberations or determinations concern- Petitioner then sought, under CPLR article 78, a judg- ing the Project.16 The court further held that the Board ment “reversing, annulling and vacating and/or setting lacked authority to rescind its negative declaration when aside” the resolutions and the positive declaration as well it had already issued the requisite special permits.17 as reinstating the negative declaration.6 Petitioner alleged conflicts of interest and decisionmaker bias against a Tinamarie Fisco member of the Board and the mayor.7 Respondent sought Albany Law School ‘17 a judgment declaring that the Board members and mayor Endnotes did not have a conflict of interest with respect to the Proj- 1. Pittsford Canalside Props., LLC v. Village of Pittsford, 137 A.D.3d 1566 ect.8 (4th Dep’t 2016). 2. Id. Procedural History 3. Id. This Article 78 proceeding challenges a judgment of 4. Id. the Supreme Court, Monroe County entered October 29,

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 115 5. Id. allege that the town board erred when it issued a negative 6. Id. at 1567. declaration, and the Respondents must prepare an EIS. 7. Id. The Petitioners brought seventeen causes of action 8. Id. to the Supreme Court of Seneca County, all of which the 9. Id. court denied. Petitioners alleged bias in board members 10. Id. as the reason the negative declaration was issued, but 11. Id. the court found the petitioners did not bring enough 3 12. Id. at 1568 (quoting Parker v. Town of Gardinder Planning Bd., 184 evidence to support the claim. Petitioners argued an EIS A.D.2d 937, 938 (3d Dep’t 1992)). should be required based solely on the size of the project, 13. Id. at 1568 (quoting Laird v. Town of Montezuma, 191 A.D.2d 986, 987 which the court denied because there is no rule about a (4th Dep’t 1993)). mandatory EIS for a specific sized project.4 Petitioners’ 14. Id. at 1568 (quoting Byer v. Town of Poestenskill, 232 A.D.2d 851, 853 claim of inadequate review of the project was denied (3d Dep’t 1996)). because the Town had properly considered the impacts 15. Id. at 1568 (quoting United Water New Rochelle v. Planning Bd. of from construction and because the applicant had made Town of Eastchester, 2 A.D.3d 627, 628 (2d Dep’t 2003)). several changes to the project in response to the Town’s 16. Id. concerns.5 17. Id. The court also rejected the Petitioners’ allegation that the Town employed the wrong standard under SEQRA * * * for the mitigation measures that the Casino incorporated into the project. The court stated that an EIS is only jus- Casino Free Tyre v. Town Bd. of Town of Tyre, tified if the project will cause at least “one significant 51 Misc. 3d 665 (N.Y. Sup. Ct. 2016) adverse environmental impact.” If the agency finds that Facts there is no adverse environmental impact, then an EIS is not required. The court determined that the Town cor- Casino Free Tyre, a community organization in the rectly found no adverse impact; therefore, an EIS was not Town of Tyre, is concerned that the building of the casino, necessary.6 and all other actions related to the construction, will have a negative environmental impact on the town. Casino To determine whether proper mitigation measures Free Tyre demands that the Town of Tyre require Lago were used, the Town identified several different impacts Resort & Casino to prepare an Environmental Impact that the project potentially could have, explained the Statement (EIS). The Town claimed compliance with Envi- potential impacts, considered changes regarding the im- ronmental Conservation Law and the State Environmen- pact, and then stated why the impacts would or would tal Quality Review Act (SEQRA) regulations by evaluat- not have an adverse effect on the environment. The court ing the negative effects that the casino could have on the determined that the Town properly determined any nec- town and issuing a negative declaration.1 essary mitigation measures.7 Petitioners urged the court to look at the added traffic from the Casino and the ad- Procedural History verse effect the traffic would have on the environment. Casino Free Tyre petitioned the court to vacate the The court distinguished H.O.M.E.S. v. New York State negative declaration and vacate all other actions resulting Urban Dev. Corp., 69 A.D.2d 22 (4th Dept. 1979), in which from the negative declaration, including halting construc- the court ruled that the City of Syracuse did not properly tion on the casino project by respondents, Lago Resort & mitigate the traffic issue with a traffic impact study. In Casino, LLC (Casino). The petitioners also request that contrast, in this case the Town prepared a detailed traffic Casino prepare an EIS before taking the project any fur- impact study.8 ther.2 Conclusion Issue The court dismissed the Casino Free Tyre challenge, Whether the Tyre Town Board erred in granting a determining that the negative declaration pursuant to negative declaration pursuant to SEQRA for the Lago Re- SEQRA was appropriate and that the casino project could sort and Casino project. move forward as planned. The court denied relief, costs, and disbursements requested by either party.9 Rationale SEQRA requires an agency, including a Town Board, Linnea E. Riegel to comply with the informational provisions of SEQRA Albany Law School ‘18 before commencing action on a project. If the agency finds Endnotes that the project will not have a harmful effect on the en- 1. Casino Free Tyre v. Town Bd. of Town of Tyre, 51 Misc. 3d 665 (N.Y. vironment, the agency may issue a negative declaration Sup. Ct. 2016). and terminate environmental review. Here, the Petitioners 2. Id. at 667.

116 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 3. Id. at 668. 2. Id. 4. Id. at 669. 3. Id. 5. Id. at 674. 4. H.R. 4470 at § 2(D). 6. Id. at 670–671. 5. Summary H.R. 4470, available at https://www.congress.gov/ 7. Id. at 672. bill/114th-congress/house-bill/4470/summary. Id 8. Id. at 673. 6. . Id 9. Id. at 674–675. 7. . 8. Id.

* * * * * * Safe Drinking Water Act Improved Compliance Awareness Act, H.R. 4470 Meyer v. Zoning Board of Appeals of City of Utica, 139 A.D.3d 1406 (4th Dep’t 2016) This bill, H.R. 4470 (hereinafter, “the bill”), was intro- duced in the House on February 4, 2016 and was received Facts by the Senate on February 11, 2016.1 It was sponsored by Petitioner brought this CPLR article 78 proceeding Representative Daniel T. Kildee (D-MI-5) along with seven- appealing the judgment of the Supreme Court, Oneida ty-seven other cosponsors, sixteen of which were original County, granting respondent, Stewart’s Shops Corp., a cosponsors.2 The bill seeks to amend the Safe Drinking Wa- use variance to construct a service station with accessory ter Act as a means of preventing another tragic water crisis retail shop.1 The petitioner contends that the determina- like the one that happened in Flint, Michigan in 2014.3 tion granting the use variance “lacks a rational basis and 2 First, the bill requires public water systems to alert is unsupported by substantial evidence.” Upon review, their customers when lead concentration levels in drink- respondent established that applicable zoning regulations ing water exceed lead limits under the national primary caused an unnecessary hardship to its ownership of the 3 drinking water regulations, supplementing the current subject property. Furthermore, a negative declaration regulations that require reporting to the Environmental was issued by the Zoning Board of Appeals (ZBA), pur- Protection Agency (hereinafter EPA).4 The public water suant to Environmental Conservation Law (ECL), Article systems must also communicate the potential adverse 8, State Environmental Quality Review (SEQR). The ZBA effects on human health from exposure, corrective steps identified relevant areas of environmental concern “[and] 4 that are being undertaken in response to the lead levels, took a hard look at them.” On appeal, Petitioner argued and whether or not customers should seek separate, safer that there was no reasoned elaboration underlying the 5 water supplies.5 The second part of the bill serves as a ZBA’s determination. safeguard and further implicates the EPA; if the afore- Procedural History mentioned first step is not taken by public water systems within twenty-four hours of the dispatch of the informa- Appeal from a judgment of the Supreme Court, tion to the EPA, and the lead levels have “significant Oneida County, entered May 12, 2015. The judgment dis- potential to have serious adverse effects on human health missed the petition in its entirety. as a result of acute exposure,” the EPA must step in and notify customers that this dangerous level has been met.6 Issue Is the determination of the lower court granting the The proactive steps to be taken under the bill address use variance supported by substantial evidence? informational and educational needs. The bill requires that community water systems’ consumer confidence Rationale reports include a clear definition of what the “action Generally, local boards have broad discretion in re- level” is, so that consumers understand the risks at issue 7 viewing area variances, and the “judicial function in re- in this type of communication. The bill also includes a viewing such decisions is a limited one.”6 A ZBA shall not requirement that the EPA formulate a plan for “targeted grant a use variance without a showing that applicable outreach, education, technical assistance, and risk com- zoning regulations and restrictions have caused an unnec- munication” for those population groups that are at the essary hardship on the applicant.7 In determining wheth- greatest risk for adverse health effects from drinking lead- er an area variance should be granted, the ZBA considers infused drinking water.8 whether “granting the area variance will produce an Kathleen L. McGee undesirable change in the character of the neighborhood Albany Law School ‘17 or a detriment to nearby properties; the benefit sought by Endnotes the applicant can be achieved by some method, feasible 1. Safe Drinking Water Act Improved Compliance Awareness Act, to the applicant, other than a variance; the requested area H.R. 4470, 114th Cong. (2015-2016), available at https://www. variance is substantial; granting the proposed variance congress.gov/bill/114th-congress/house-bill/4470. would have an adverse effect or impact on physical or

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 117 environmental conditions in the neighborhood or district; between ExxonMobil and CPD contained an indemnity and the alleged difficulty is self-created.”8 provision that transferred all of Exxon’s environmen- tal liabilities to CPD.2 A plumbing supply store, Faucet Upon review, the court affirmed that the zoning Works, is located adjacent to the CPD site and “seeks to regulations created an unnecessary hardship and that hold the current and former owners of the CPD Site, in- the variance was appropriate. Although SEQR requires cluding Exxon and CPD, responsible under RCRA and that the ZBA consider potential environmental impacts 9 NYNL for petroleum contamination of the Faucet Works in its decision-making process, the role of the courts is Site.”3 Faucet Works alleged that: (1) contamination from merely to assure “the agency itself has satisfied SEQRA, 10 the CPD site has migrated to the Plumbing Supply site, procedurally and substantively.” A court’s review is triggering liability under the Resource Conservation and supervisory only, which insures that the agencies will Recovery Act (RCRA), (2) Exxon and CPD are strictly li- honor their mandate in SEQR by “complying strictly with able for damages resulting from petroleum migration, prescribed procedures and giving reasoned consideration 11 and (3) CPD and Exxon intentionally breached their du- to all pertinent issues revealed in the process.” Here, it ties to mitigate the issue, “resulting in general negligence, was determined that the ZBA properly “identified the rel- trespass, and nuisance.”4 Plumbing Supply also brought evant areas of environmental concern… [and] took a hard 12 in Cumberland Farm Inc. (CFI) and Groundwater & Envi- look at them.” Finally, the court rejected the claim that ronmental Services, Inc. (GES) as third-party defendants there was no reasoned elaboration underlying the ZBA’s for the nuisance claim.5 determination; this issue was properly barred from ap- pellant review because it was not properly preserved for Procedural History 13 review. The lower court ruled on several motions, including: Conclusion (1) granting the defendant CPD’s motion for judgment on the pleadings; (2) granting defendant CFI’s motion to The judgment on appeal is unanimously affirmed dismiss plaintiff’s Second Amended complaint; (3) both without costs. granting and denying CFI’s motion to dismiss CPD’s Jonathan P. Catania “First Amended Third Party Complaint (FATPC)”; and (4) Albany Law School ‘17 moving to reconsider, for injunctive relief only, the origi- Endnotes nal nuisance claim the plaintiff brought against both CDP 6 1. Meyer v. Zoning Bd. of Appeals of City of Utica, 139 A.D.3d 1406 (4th and CFI. Dep’t 2016). Issue 2. Id. Whether the lower court’s orders on motions should 3. Id. be terminated, and specifically, whether the nuisance 4. Id. claim can be retried for injunctive relief only. 5. Id. 6. Pecoraro v. Bd. of Appeals, 2 N.Y.3d 608, 613 (2004). Rationale 7. N.Y. Gen. City Law § 81-b. Generally, nuisance claims are subject to a three-year 8. Pecoraro, 2 N.Y.3d at 612–13. statute of limitations period, which is why the lower 7 9. N.Y. Envtl. Conservation Law § 8-0101. court dismissed the claim “as time-barred” under New York law. However, the three-year limitations period only 10. Jackson v. N.Y. State Urban Dev. Corp., 67 N.Y.2d 400, 416 (1986). bars actions for monetary damages.8 Here, the plaintiff Id. 11. at 417. sought injunctive relief. Moreover, although the plaintiff 12. Meyer v. Zoning Bd. of Appeals of City of Utica, 138 A.D.3d at 1406. could have adequate relief without the nuisance claim 13. See generally Blue Lawn v. County of Westchester, 293 A.D.2d 532, 534 under RCRA, the court used its “discretion to reinstate (2002). the nuisance claim for injunctive relief only.”9 CPD sued under the Navigation Law as a means of * * * remediating the damages from the petroleum spill. The Plumbing Supply, LLC v. ExxonMobil Oil claim was found to be time-barred because CPD did not Corp., 2016 U.S. Dist. LEXIS 69863 (S.D.N.Y. obtain approval from the New York Department of En- vironmental Conservation (DEC) for the cost to cleanup. May 27, 2016) CPD therefore sought to amend the claim to allege facts 10 Facts that the DEC approved the clean-up. Both CFI and EMC argued that the amended complaint failed to show that In 2011, ExxonMobil conveyed its interests in approxi- DEC approved the clean-up because: (1) CPD had the in- mately eighty gas stations located in New York pursuant formation to show DEC approved, but did purposefully to a Sale and Purchase Agreement (SPA). The transaction omitted it; (2) the amended complaint would cause delay including the sale of a station in White Plains known as 1 and prejudice; and (3) the amended complaint was oth- the CPD New York Energy Corp.’s (CPD) site. The SPA erwise futile.11 The court found that these arguments had

118 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 no merit, especially because CPD’s plan to “assess and re- Procedural History mediate the air quality inside plaintiff’s property, though After an unsuccessful public hearing conducted by not pleaded in detail, falls within [the] broad definition the Department to consider the petition, the plaintiffs because it seeks to mitigate petroleum-related damages to filed a complaint in the Superior Court of Massachusetts.6 12 plaintiff’s property.” After a hearing in March 2015, the judge entered a judg- ment in favor of the Department, finding that the three Conclusion regulatory initiatives above satisfied the requirements of The court granted the motion for reconsideration of § 3(d).7 The plaintiffs appealed and asserted that the De- the nuisance claim, granted the motion for leave to amend partment has not met its obligations under § 3(d) through the claims against CFI and EMC, and denied the claims the three regulatory initiatives.8 against GEC.13 The court also ordered CPD to file a Sec- ond Amended Third Party Complaint and First Amended Issue 14 Cross Claim by a specific set date. The issue is whether the Department has met its obli- Linnea E. Riegel gations to “promulgate regulations establishing a desired Albany Law School ‘18 level of declining annual aggregate emission limits for Endnotes sources or categories of sources that emit greenhouse gas emissions” under § 3(d) of the Act by initiating three 1. Plumbing Supply, LLC v. ExxonMobil Oil Corp., 2014 U.S. Dist. LEXIS 165646, *2 (S.D.N.Y. Oct. 23, 2014). regulatory schemes including sulfur hexafluoride regula- 9 2. Id. tions, RGGI and LEV. 3. Id. at *13. Rationale 4. Id. The court rejected the argument made by the Depart- 5. Pumbing Supply, LLC v. ExxonMobil Oil Corp., 2016 U.S. Dist. LEXIS ment that it had fulfilled its obligations under the § 3(d) 69863, *2 (S.D.N.Y. May 27, 2016). of the Act by instituting three regulatory initiatives: sulfur 6. Id. hexafluoride regulations, RGGI, and LEV. In order to de- 7. Id. termine whether the Department met the requirements 8. Id. at *4. of § 3(d) of the Act, the court had to interpret what the 9. Id. section requires. The court concluded that the language 10. Id. at *7. of § 3(d) is unambiguous and “requires the department to promulgate regulations that address multiple sources or 11. Id. at *8–10. categories of sources of emissions, impose a limit on emis- 12. Id. at *11–12. sions that may be released, limit the aggregate emissions 13. Id. at *15. released from each group of regulated sources or catego- 14. Id. ries of sources, set emissions limits for each year, and set limits that decline on an annual basis.”10 * * * Based on this interpretation, the court rejected the Department’s position that the three regulatory initiatives Isabel Kain v. Dep’t of Envtl. Prot., 2016 WL satisfied § 3(d).11 As to the sulfur hexafluoride regulations, 2859219 (Mass. 2016) this created maximum annual rates of allowable leakage Facts for gas-insulated switchgear that are insulated with sulfur hexafluoride.12 A maximum leakage rate is different from This case arose from the Department of Environ- a maximum limit required by § 3(d) in that it does not mental Protection’s (“Department”) interpretation of the specify a value that cannot be exceeded, it just says how Global Warming Solutions Act (“Act”) with regard to the much of the total gas capacity is allowed to leak out.13 This implementation of regulations pursuant to § 3(d) of the regulation would only control the rate of leakage (a ratio) 1 Act. This section of the Act provides that the Department rather than a total collective amount of sulfur hexafluoride “shall promulgate regulations establishing a desired level emissions that are permissible.14 of declining annual aggregate emission limits for sources or categories of sources that emit greenhouse gas emis- As to RGGI and the carbon dioxide budget trading sions.”2 The Act provides that these regulations were to program, the court reasoned that the reductions of emis- be issued by January 1, 2012 and take effect a year later.3 sions from this regulation were already accounted for in 15 However, the Department failed to meet the deadline, the initial figure of reduction of emissions in the Act. and a group of residents submitted a petition to the De- Additionally, the structure of the trading program allows partment.4 The Department issued a statement that sev- a state to purchase allowances from another state to meet eral regulatory schemes fulfilled § 3(d), including sulfur the compliance requirements, and therefore, it does not hexafluoride regulations, Regional Greenhouse Gas Initia- ensure reductions in carbon dioxide emissions from sourc- 16 tive (RGGI) and carbon dioxide budget trading program, es in Massachusetts specifically. and a low emission vehicle program (LEV).5

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 119 As to the LEV program, the reasoning of the court is proposal on grounds that he does not own a motor ve- much the same as on the RGGI challenge. The court held hicle and it would be burdensome for him and similarly that the LEV program was already accounted for in the situated students to use public transportation to attend initial figure of reduction of emissions in the Act, and that classes at Amherst.2 the Legislature was aware of both RGGI and LEV when it “directed the Department to promulgate regulations in Petitioner Joel Giambra, former county executive of accord with new Statewide emissions limits,” and there- Erie County, challenged on grounds that, if the building fore, neither LEV nor RGGI satisfies the legislative intent were constructed at Amherst and not in Buffalo, “[he] behind the Act.17 would be harmed in that all of the work [he had] done and all of the procedures [he had] fought for would Conclusion be shown to have been useless.”3 Petitioner Joseph The court held that the regulatory initiatives cited by Golombek Jr., a Buffalo city councilman, challenged on the Department do not fulfil the requirements of § 3(d) of grounds that constructing the building at Amherst— the Act.18 The court vacated the judgment of the Superior and outside the city of Buffalo—would diminish his court and remanded the matter for entry of a judgment reputation among constituents who expect the council- declaring that “§ 3(d), requires the department to promul- man to safeguard the city from “adverse economic deci- gate regulations that address multiple sources or catego- sions” and promote economic development within city ries of sources of greenhouse gas emissions, impose a lim- limits.4 it on emissions that may be released, limit the aggregate emissions released from each group of regulated sources Procedural History or categories of sources, set emission limits for each year, Petitioners commenced this Article 78 proceeding and set limits that decline on an annual basis.”19 following Supreme Court, Erie County’s determination that petitioners lacked standing pursuant to SEQRA and Taylor Cuomo dismissal of their petition.5 Albany Law School ‘18 Endnotes Issue 1. Isabel Kain v. Dep’t of Envtl. Prot., 2016 WL 2859219, *1 (Mass. 2016). Whether plaintiffs assert a valid cause of action chal- 2. Id. lenging the proposed building pursuant to SEQRA. 3. Id. Rationale 4. Id. 5. Id. To raise a SEQRA challenge, plaintiff must establish “[1] an environmental injury that is in some way differ- 6. Id. ent from that of the public at large, and … [2] that the 7. Id. alleged injury falls within the zone of interests sought to 8. Id. be protected or promoted by SEQRA.”6 The court noted 9. Id. the rationale of the Act is to promote the “maintenance 10. Id. at *5, *9. of a quality environment” for state residents.7 Here, peti- 11. Id. at *9. tioners did not assert an environmental injury sufficient 8 12. Id. to establish a valid cause of action. The court reasoned 13. Id. at *10. that “urban sprawl, traffic congestion, redistribution of 14. Id. residential development, and the routing of mass transit in the future” are within the “zone of interests” pon- 15. Id. at *11. dered by SEQRA.9 However, none of the petitioners re- 16. Id. side in, or in close proximity to, the Amherst community 17. Id. at *12. that would be impacted by the proposed construction.10 18. Id. Petitioners therefore were unable to assert an individu- 19. Id. alized environmental injury “different from that of the * * * public at large” sufficient to establish standing under SEQRA.11 Turner v. County of Erie, 136 A.D.3d 1297 (4th Dep’t 2016) Conclusion The appellate court concluded that the Supreme Facts Court properly dismissed petitioners’ claim.12 Petitioners raised a State Environmental Quality Review Act (SEQRA) challenge to the proposed con- Patrick Duprey struction of a new academic building on the Amherst Albany Law School ‘18 Campus of respondent Erie Community College.1 Peti- Endnotes tioner Wilfred Turner, an ECC student, challenged the 1. Turner v. County of Erie, 136 A.D.3d 1297, 1297 (4th Dep’t 2016).

120 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 2. Id. at 1298. a lead paint condition at the residence,”11 there was in fact 3. Id. a hazardous condition.12 4. Id. The court also found that the defendant had actual 5. Id. at 1297. notice when she admitted receiving some documents from 6. Id. the Oneida County Department of Health indicating the 7. Id. presence of lead paint at that apartment.13 As to the issue 8. Id. at 1298. of whether the defendant had constructive notice, “a tri- 9. Id. able issue of fact [on notice] is raised when [the evidence] 10. Id. shows that the landlord (1) retained a right of entry to the premises and assumed a duty to make repairs, (2) knew 11. Id. at 1298–99. that the apartment was constructed at a time before lead- 12. Id. at 1299. based interior paint was banned, (3) was aware that paint was peeling on the premises, (4) knew of the hazards of * * * lead-based paint to young children and (5) knew that a young child lived in the apartment.”14 In this case, the Rodrigues v. Lesser, 136 A.D.3d 1322 defendant had constructive notice because she retained a (4th Dep’t 2016) right of entry and assumed a duty to make repairs; knew that the residence was constructed before lead-based paint Facts was banned; and knew that young children lived in the The defendant owned various apartments in Oneida apartment.15 County.1 Plaintiffs are former tenants of one of the defen- dant’s properties.2 Plaintiffs have suffered cognitive and The defendant also failed to meet her burden of estab- behavioral difficulties and allege that those difficulties lishing that any exposure to lead at the apartment was not were caused by their childhood ingestion of peeling and a cause of the cognitive injuries of the plaintiffs insofar as chipping paint in the apartment.3 the defendant submitted reports from a clinical psycholo- gist attributing plaintiffs’ injuries to their exposure to lead Procedural History as children.16 Plaintiffs submitted an affirmation from a The action was commenced in Supreme Court, Onei- medical expert opining that the cause of plaintiffs’ injuries da County, seeking damages for injuries allegedly sus- was their exposure to lead, leading the court to conclude tained as a result of exposure to lead paint as children.4 that there were triable issues of fact as to whether the con- Plaintiffs appealed the Oneida County Supreme Court’s dition of the apartment was the cause of their injuries.17 order granting the defendant’s motion for summary judg- ment and dismissing the complaint and all cross claims.5 Conclusion The Appellate Division held that the Supreme Court Issue erred in granting the defendant’s motion for summary Whether the defendant landlord had notice of the judgment dismissing the complaint and cross claims dangerous condition, and if so, whether she may be against the defendant. The court reversed the trial court’s found liable for failure to repair such dangerous condi- decision and reinstated the plaintiffs’ complaint and cross tion. claims against the former landlord.18

Rationale Justin Reyes Albany Law School ‘18 A landlord’s liability is based on “traditional common- Endnotes law principles,”6 meaning that “a landlord may be found liable for failure to repair a dangerous condition, of which 1. Rodrigues v. Lesser, 136 A.D.3d 1322, 1323 (4th Dep’t 2016). it has notice, on leased premises if the landlord assumes 2. Id. at 1322. a duty to make repairs and reserves the right to enter in 3. Id. at 1324 (quoting Robinson v. Bartlett, 95 A.D.3d 1531 (3d Dep’t order to inspect or to make such repairs.”7 The “plaintiff 2012)). must demonstrate that the landlord had actual or con- 4. Id. at 1322. structive notice of, and a reasonable opportunity to rem- 5. Id. 8 edy, the hazardous condition.” 6. Id. at 1322 (quoting Chapman v. Silber, 97 N.Y.2d 9, 19–20 (2001)). Although the defendant contended that there was no 7. Id. evidence of a hazardous condition, the court reasoned that 8. Id. (quoting Pagan v. Rafter, 107 A.D.3d 1505, 1506 (4th Dep’t there can be no dispute that the existence of chipping and 2013)). peeling lead-based paint is, in fact, a hazardous condi- 9. Id. at 1323. tion.9 A defendant “must affirmatively establish the merits 10. Id. at 1323 (quoting Orcutt v. American Linen Supply Co., 212 A.D.2d of its cause of action or defense.”10 Here the court found 979, 980 (4th Dep’t 1995)). that, since the defendant failed to establish “the absence of 11. Id. (quoting Jackson v. Brown, 26 A.D.3d 804, 805 (4th Dep’t 2006)).

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 121 12. Id. Rationale 13. Id. Regarding the first issue, the court found that al- 14. Id. though the pollution levels varied greatly over time, the 15. Id. at 1323. pollutant levels corresponded to the permits in effect 12 16. Id. at 1324. at the time of violation. The district court viewed the 17. Id. requirement for permit violations to show repeated viola- tions of identical numerical values of MAERT limits.13 18. Id. at 1322. At first instance, the district court viewed the changes in * * * numerical limits that was evidenced in the MAERTs that 14 Env’t Tex. Citizen Lobby, Inc. v. ExxonMobil, a new permit was at issue. 2016 U.S. App. LEXIS 9751 (5th Cir. 2016) On appeal, the court found the CAA identifies spe- cific pollutant permits, and if the pollutant violates the Facts permit governing at the time of the violations because of Exxon’s industrial complex in Baytown, Texas in- amendments or renewals, become the basis for determin- 1 cludes a refinery, an olefins plant, and a chemical plant. ing whether violations are repeated or ongoing.15 The The plant is governed by Title V of the Clean Air Act 2 court uses an approach courts have used when assessing (CAA). Plaintiffs, at the direction of the district court, the Clean Water Act in which the decisive information compiled data on Exxon’s emissions into various spread- is whether the pollutant is discharged at a higher rate sheets that included Maximum Allowable Emission Rate than the permit authorizes, resulting in a violation, not Tables (MAERTs) and Title V deviation reports.3 The simply the numerical threshold.16 For that reason, pol- table was categorized by pollutants, resulting in great lutants that “have been discharged at higher rates than variations of the numerical limits listed.4 Under this title, authorized by permit” constituted a violation regardless Exxon’s permits had incorporated certain conditions that 17 identified emissions level limits.5 It was undisputed that of whether the numerical limits are the same. (1) the permits for all three plants are under the Texas Regarding the second issue, unaddressed by the HRVOC (highly reactive volatile organic compounds) district court, the court identified two approaches to Rule, which limits facility-wide emissions of HRVOCs, calculating the economic benefit to determine a remedy: and (2) the three plants incorporate federal regulations (1) the cost of capital, i.e., what it would cost Exxon to that prohibit plant flare emissions “for periods exceeding 6 remedy their violation; and (2) the actual return on capi- five minutes during any two-hour period.” The plain- tal, i.e., the benefits that Exxon received by declining to tiffs’ expert witness regarding economic benefits was spend the capital to correct the violation.18 Under the relied on to calculate the benefit received by Exxon due second approach, the court found that plaintiffs may to its noncompliance.7 The expert calculated the overall use Exxon’s opportunity cost for not using its capital benefit from delayed compliance with Texas Commission to achieve compliance with interest added to the extent on Environmental Quality (TCEQ) from 2005 to 2012.8 that its expenditures added productivity.19 The court Procedural History relied on the plaintiffs’ economic benefit expert, deemed reliable by the district court, to reexamine the economic The plaintiffs appealed from the district court’s rul- 20 ings on five of seven counts.9 The district court found benefits derived from noncompliance. The court found that the plaintiffs’ allegations of violations were inconsis- evidence, provided by plaintiffs, that Exxon received eco- tent and treated the violations as conditions that applied nomic benefits from forgoing projects to move towards 21 to separate air contaminants.10 The plaintiffs appealed compliance. from the district court’s decision that there was no eco- Conclusion nomic benefit received from delaying preventative instal- lations and rejection of plaintiffs’ expert testimony.11 The court vacated the district court’s judgment and remanded the issue to the district court to determine the Issue correct number of actionable pollutant violations when This article addresses only the following issues (1) treated in correspondence with the relevant permits.22 whether the district court erroneously assessed the data Regarding economic benefit derived from Exxon’s viola- regarding whether MAERT limit violations resulted in tions, the court found the district court erred in failing to emissions upsets regarding the same pollutant from the consider evidence as to whether projects undertaken by same sources were repeated or ongoing; and (2) whether Exxon demonstrated that Exxon received an economic the district court erred in declaring that there was no eco- benefit from noncompliance.23 The issue was remanded nomic benefit realized by Exxon’s violation of the emis- to consider whether any projects are “necessary to cor- sions standard in calculating a penalty. rect” the violations at issue in the suit.24 Maxwell Radley Albany Law School ‘18

122 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 Endnotes 14. Id. at 26. 1. Env’t Tex. Citizen Lobby, Inc. v. ExxonMobil Corp., 2016 U.S. App. 15. Id. (citing 42 U.S.C. §§ 7604(a)(1) & (f)(4)). LEXIS 9751, 3 (5th Cir. 2016). 16. Id. at 26–27 (citing Allen Cty. Citizens for the Env’t, Inc. v. BP Oil Co., 2. Id. at 4 (citing 42 U.S.C. §§ 7661a-7661d). 762 F. Supp. 733, 740–41 (N.D. Ohio 1991), aff’d, 966 F.2d 1451 (6th Cir. 1992)). 3. Id. at 12.a. 17. Id. 4. Id. at 22. 18. Id. at 48–49 (quoting United States v. Allegheny Ludlum Corp., 366 F. 5. Id. 3d 164, 169 (3d Cir. 2004)). 6. Id. at 5. 19. Id. at 52 (citing United States v. Gulf Park Water Co., Inc., 14. F.Supp. 7. Id. at 53–54. 2d 854, 863–64 (S.D. Miss. 1998). 8. Id. at 54. 20. Id. at 53–54. 9. Id. at 8–9. 21. Id. 10. Id. at 14. 22. Id. at 28. 11. Id.at 49. 23. Id. at 59. 12. Id. at 26–27. 24. Id. 13. Id. at 21.

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NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 123 Section Committees and Chairs The Environmental Law Section encourages members to participate in its programs and to contact the Section Officers or Committee Chairs for information.

Adirondacks, Catskills, Forest Preserve David J. Freeman Corporate Counsel and Natural Resource Management Gibbons, P.C. George A. Rusk Claudia K. Braymer One Pennsylvania Plaza, 37th Floor Ecology and Environment, Inc. Caffry & Flower New York, NY 10119-3701 368 Pleasantview Drive 100 Bay Street [email protected] Lancaster, NY 14086-1316 Glens Falls, NY 12801 [email protected] [email protected] Coastal and Wetland Resources Amy K. Kendall Robert M. Hallman Thomas A. Ulasewicz Knauf Shaw, LLP 227 E. 57th Street FitzGerald Morris Baker Firth PC 1400 Crossroads Bldg. New York, NY 10022 16 Pearl Street, Suite 101 2 State Street [email protected] Glens Falls, NY 12801 Rochester, NY 14614 [email protected] [email protected] Diversity John L. Greenthal Agriculture and Rural Issues Reed Super Nixon Peabody LLP Scott H. Wyner Super Law Group, LLC 677 Broadway, 10th Floor NYS Dept. of Agriculture and Markets 411 State Street, Suite 2R Albany, NY 12207 10B Airline Dr. Brooklyn, NY 11217-1709 [email protected] Albany, NY 12235 [email protected] [email protected] Joan Leary Matthews Dominic R. Cordisco National Resources Defense Council Ruth A. Moore Drake Loeb PLLC 306 Warren Street Cornell Cooperative Extension 555 Hudson Valley Avenue, Suite 100 Brooklyn, NY 11201 Dutchess Co. New Windsor, NY 12553 [email protected] 2715 Rt 44 [email protected] Millbrook, NY 12545 Energy [email protected] Terresa M. Bakner Yvonne E. Hennessey Whiteman Osterman & Hanna LLP Barclay Damon LLP Elizabeth C. Dribusch One Commerce Plaza 80 State Street New York Farm Bureau, Inc. Albany, NY 12260-2015 Albany, NY 12207 P.O. Box 5330 [email protected] [email protected] 159 Wolf Road Albany, NY 12205-0330 Continuing Legal Education & Ethics Devin McDougall [email protected] Randall C. Young Sive Paget & Riesel P.C. New York State Department of 460 Park Avenue, 10th Floor Air Quality Environmental Conservation New York, NY 10022 Robert R. Tyson Region 6 [email protected] Bond, Schoeneck & King, PLLC 317 Washington Street One Lincoln Center Watertown, NY 13601-3744 Keith G. Silliman Syracuse, NY 13202-1355 [email protected] VHB [email protected] 100 Great Oaks Blvd., Suite 109 James P. Rigano Albany, NY 12203 Brownfields Task Force Rigano, LLC [email protected] Lawrence P. Schnapf 538 Broadhollow Rd., Suite 217 Schnapf, LLC Melville, NY 11747 Enforcement and Compliance 55 East 87th Street, Suite 8b [email protected] Eugene John Kelly Jr. New York, NY 10128 Harris Beach PLLC [email protected] Genevieve Trigg 677 Broadway, Suite 1101 Whiteman Osterman & Hanna LLP Albany, NY 12207 One Commerce Plaza, Suite 1900 [email protected] Albany, NY 12260 [email protected]

124 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 Environmental Business Transactions Global Climate Change Legislation Jon Schuyler Brooks Carl R. Howard Jillian Kasow Phillips Nizer LLP US Environmental Protection Agency New York State Senate 600 Old Country Road, Suite 305 290 Broadway Legislative Office Building Garden City, NY 11530-2011 Office Of Regional Counsel Room 846-A [email protected] New York, NY 10007-1866 Albany, NY 12247 [email protected] [email protected] Robert H. Feller Bond, Schoeneck & King, PLLC Virginia C. Robbins John L. Parker 22 Corporate Woods Blvd., Suite 501 Bond, Schoeneck & King, PLLC Riverkeeper, Inc. Albany, NY 12211 One Lincoln Center 78 North Broadway [email protected] Syracuse, NY 13202 White Plains, NY 10603 [email protected] [email protected] Environmental Impact Assessment Lisa A. Hochman Michael B. Gerrard Membership 61 Vine Road Arnold & Porter LLP Robert Alan Stout Jr. Larchmont, NY 10538-1216 399 Park Avenue Whiteman Osterman & Hanna LLP [email protected] New York, NY 10022 1 Commerce Plaza [email protected] Albany, NY 12260 Mark A. Chertok [email protected] Sive Paget & Riesel PC J. Kevin Healy 460 Park Avenue, 10th Floor Bryan Cave LLP Frank Piccininni New York, NY 10022 1290 Avenue of the Americas 301C Main Street [email protected] New York, NY 10104 Roslyn, NY 11576 [email protected] [email protected] Environmental Insurance Gerard P. Cavaluzzi Hazardous Waste/Site Remediation Mining and Oil & Gas Exploration 2 Wells Avenue David J. Freeman Alita J. Giuda Croton-on-Hudson, NY 10520 Gibbons, P.C. Couch White, LLP [email protected] One Pennsylvania Plaza, 37th Floor 540 Broadway, 7th Floor New York, NY 10119-3701 Albany, NY 12207 Daniel W. Morrison III [email protected] [email protected] Jones Morrison, LLP Penthouse Amy Lynn Reichhart Adam J. Schultz 670 White Plains Road Nixon Peabody LLP Couch White LLP Scarsdale, NY 10583 1300 Clinton Square 540 Broadway, #7 [email protected] Rochester, NY 14604 Albany, NY 12207 [email protected] [email protected] Environmental Justice David W. Quist Land Use & Historic Preservation Pesticides New York State Department of Health Parks & Recreation & Transportation Megan Rose Brillault Division of Legal Affairs & Infrastructure Beveridge & Diamond PC Rm 2512, Empire State Plaza Michael D. Zarin 477 Madison Ave., 15th Floor Corning Tower Zarin & Steinmetz New York, NY 10022-7380 Albany, NY 12237-0026 81 Main Street, Suite 415 [email protected] [email protected] White Plains, NY 10601 [email protected] Telisport W. Putsavage Peter M. Casper Edward F. Premo II Putsalvage PLLC New York State Department Harter Secrest & Emery LLP 17 Elk Street, 5th Floor of Environmental Conservation 1600 Bausch & Lomb Place Albany, NY 12207 Office of General Counsel Rochester, NY 14604 [email protected] 625 Broadway, 14 Floor [email protected] Albany, NY 12233-1500 [email protected]

NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 125 Petroleum Spills Solid Waste Water Quality Douglas H. Zamelis Michael S. Bogin George A. Rodenhausen Law Office of Douglas H. Zamelis Sive Paget & Riesel PC Rodenhausen Chale LLP 7629A State Highway 80 460 Park Avenue, 10th Floor 20 Spring Brook Park Cooperstown, NY 13326-3315 New York, NY 10022 Rhinebeck, NY 12572-1194 [email protected] [email protected] [email protected] Steven C. Russo Wendy A. Marsh Greenberg Traurig LLP Philip H. Dixon Hancock Estabrook, LLP 200 Park Avenue Whiteman Osterman & Hanna LLP 100 Madison Street, Suite 1500 New York, NY 10166 One Commerce Plaza Syracuse, NY 13202-2791 [email protected] Albany, NY 12260 [email protected] [email protected] Toxic Torts Gary S. Bowitch Cheryl P. Vollweiler Melody Westfall Bowitch & Coffey LLC Traub Lieberman Staus Scalfone Law PLLC 17 Elk Street & Shrewsberry LLP 247 West Fayette Street, Suite 203 Albany, NY 12207 Mid-westchester Executive Park Syracuse, NY 13207-1645 [email protected] [email protected] 7 Skyline Drive Hawthorne, NY 10532 [email protected]

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126 NYSBA The New York Environmental Lawyer | Fall 2016 | Vol. 36 | No. 2 Section Officers THE NEW YORK Chair Lawrence P. Schnapf ENVIRONMENTAL LAWYER Schnapf, LLC Editor-in-Chief 55 East 87th Street, Suite 8b Miriam E. Villani New York, NY 10128 Sahn Ward Coschignano, PLLC [email protected] 333 Earle Ovington Blvd., Suite 601 Uniondale, NY 11553 Vice-Chair [email protected] Kevin M. Bernstein Bond, Schoeneck & King, PLLC Issue Editors One Lincoln Center Justin M. Birzon Syracuse, NY 13202-1325 Associate Counsel [email protected] New York State Assembly Room 513—Capitol Treasurer Albany, NY 12248 Marla E. Wieder [email protected] Assistant Regional Counsel U.S. Environmental Protection Agency Region II Prof. Keith Hirokawa 290 Broadway, 17th Floor Albany Law School New York, NY 1007-1823 80 New Scotland Ave. [email protected] Albany, NY 12208 [email protected] Secretary Aaron Gershonowitz Howard M. Tollin Forchelli Curto Sterling Environmental Services 333 Earle Ovington Boulevard 135 Crossways Park Drive, Third Floor Uniondale, NY 11553 Woodbury, NY 11797 [email protected] [email protected]

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