Environmental Law: Legislative Update - 1999
The principal environmental achievement of the 1999 session of the New York State Legislature concerned the siting of new power plants. In addition, a few laws were enacted to protect the state's water and groundwater resources, such as the Hudson River Sanitation Act, which requires certain marinas to install facilities that pump sewage out of marine holding tanks on vessels. Another piece of legislation requires all water well drillers to obtain certificates of registration from the New York State Department of Environmental Conservation (DEC). The drillers must file a notice with DEC before drilling and submit a report to DEC upon completion of the well.
As analyzed by this column on September 24, two bills to revise New York's Superfund, brownfields and oil spill programs were proposed in 1999 but were not enacted. However, they will likely be reintroduced and subject to vigorous debate in the spring of 2000. Both bills would codify the state's voluntary cleanup program and create methods for setting soil cleanup standards that are tied to the site's present and future land use.
Power Plant Siting
Very few new electric power plants have been built in New York State over the past two decades. However, the deregulation of the electric power industry, the strong economy, the wider availability of natural gas, and more stringent controls on air emissions have combined to lead to a spate of proposals to build new electric power plants and rebuild or expand old ones. Most of the projects would use natural gas and therefore emit less air pollution than older coal- and oil-fired plants.
The permitting of power plants with a generating capacity of at least 80 MW is governed by Article X of the Public Service Law, which is designed to provide something approaching "one stop shopping" under the aegis of the New York State Board on Electric Generation Siting and the Environment (the "Siting Board"). This process substitutes for the State Environmental Quality Review Act ("SEQRA") and has the ability, where warranted, to supersede municipal regulation.
A quandary had arisen, however, because two of the key permitting programs pertinent to power plants -- the State Pollutant Discharge Elimination System ("SPDES"), for water pollution, and the Title V program, for air pollution -- are federal programs that have been delegated by the U.S. Environmental Protection Agency ("EPA") to DEC. Since it was not clear that this delegation could also be exercised by the Siting Board, the status of these permits under the Article X process was uncertain.
A bill (S. 6143, A.B. 9039) to amend Article X passed both houses in a special session in October, and Governor Pataki has indicated that he will sign it. The legislation authorizes DEC to issue the SPDES and Title V permits if the Siting Board is unable to do so. The legislation will also increases to $300,000, from $100,000, the amount that applicants must place in an "intervenor account" to facilitate the participation of municipalities and citizen groups in the permitting proceedings. Moreover, it establishes a pre-application process under which interested parties would be allowed greater participation in the siting process. The bill requires the project's environmental studies to evaluate "the cumulative effect of air emissions from existing facilities and the potential for significant deterioration in air quality, with particular attention to facilities located in areas designated as severe nonattainment."
A new law will ensure that certain large livestock farms continue to be eligible for agricultural nonpoint source abatement funding. Chapter 166 amends the Soil and Water Conservation District Law to allow these farms to be eligible for funds through the Environmental Protection Fund or the 1996 Clean Water/Clean Air Bond Act. DEC is developing a permit system for nutrient management for concentrated animal feeding operations (CAFOs). Upon receiving a permit, CAFOs would have no longer been eligible for agricultural nonpoint source abatement assistance, since the farms would technically be considered point sources. Chapter 166 will enable farms to avoid a financial penalty for compliance with the permitting regulations by allowing them to apply for agricultural nonpoint source abatement funding.
A second new law that affects farming in New York revises the Department of Agriculture and Markets' regulatory program for agricultural liming materials. Chapter 251 strengthens the prohibition against the sale, gift or other transfer of lime products not meeting certain requirements, extends licensing requirements to all persons who label and distribute commercial fertilizer, and increases tonnage fees to support the fertilizer inspection program. The Department recognized that the potentially adverse environmental impacts from the use of by-products and solid waste products on agricultural land warranted strengthening of the labeling requirement and the Department's testing and enforcement authority.
A provision in the enacted state budget bill amends the Clean Water/Clean Air Bond Act to authorize grants to large companies for water or wastewater infrastructure projects. One part of the Bond Act originally created a $30 million fund to help small businesses in upstate New York comply with state and federal environmental regulations. The new law removes the word "small" so that any size business can qualify for the funds. It also adds a provision to allow the funds to be spent on water and wastewater infrastructure. The new language was written a the request of Senate majority leader Joseph L. Bruno to spur economic development upstate. Senator Bruno also hopes that the legislation will help attract a microchip factory to his district in Rensselaer County. Some environmentalists contend that the amendment subverts the Bond Act's goal to clean up pollution by authorizing money to promote development.
The 1999-2000 state budget provides a record $1.2 billion for environmental protection and recreational programs, an increase of 15.6 percent over last year. The budget includes:
$307 million in new funding from the Bond Act for priority projects to restore brownfields, ensure safe drinking water, clean up air and water resources, and support local landfill/recycling projects;
$134 million in new state and federal funding for the Clean Water State Revolving Fund low-interest loan program to build and rehabilitate municipal sewage treatment and water pollution control facilities;
$125 million in new funding from the Environmental Protection Fund for ongoing programs such as land acquisition, the Hudson River Estuary Plan, and the Hudson River Park project;
$40.8 million to support the state's efforts to control pollution for automobiles, heavy-duty vehicles, and industrial sources of air pollution;
$34.2 million for the oil spill prevention and cleanup program;
$30 million for the State Parks Infrastructure Fund;
$16 million from the Environmental Protection Fund and Bond Act for restoration and protection projects to implement the Hudson River Estuary Management Plan;
and $4.9 million to develop and operate a pesticides sales and use database.
Chapter 25 applies to the licensing of liquefied natural gas facilities. It allowed the moratorium on issuing certificates of environmental safety for the siting of facilities, and certification of routes to transport liquefied natural gas, to expire on April 1, 1999. However, it extended the moratorium in cities with a population of one million or more to April 1, 2001.
Chapter 157 clarifies that volunteer firefighters and fire departments are not strictly liable for discharged petroleum when these discharges result from performance of their firefighting duties and there is no willful or gross negligence. This law also applies to volunteer fire companies, volunteer fire districts, and volunteer fire protection districts. However, the immunity does not apply for discharges on the property of the fire company, district, or department.
Two laws relating to land use were enacted in 1999. Chapter 276 approves a land exchange. It authorizes DEC to lease a portion of state lands in the Town of Mansfield, Cattaraugus County to HoliMont, Inc. in exchange for other lands of equal or greater value to be used for reforestation. Chapter 322 concerns forest product sales. It revises the procedures for some smaller sales of products from reforestation areas. It requires public notice in the Procurement Opportunity Newsletter for sales of products from reforestation areas appraised at $10,000 or more.
Another land use measure passed both houses in 1999, but was vetoed by Governor Pataki. That bill (S. 5399, A. 8727) provided that any land use regulation enacted by a county, town, or village in a groundwater protection area must include a definition of "open space" that is protective of the water quality of the area and must distinguish between open space and recreational space.
A provision in a budget bill for the Department of Health (Chapter 412) appropriates $2 million for the Department to conduct a cancer mapping program. The program will attempt to match types and frequencies of cancer with various sources of pollution. The funding will help the Department continue its ongoing project to map incidence of cancer throughout the state, and to carry out related epidemiological and educational follow-up activities.
Chapter 199 enacts the Hudson River Sanitation Act. It provides for a review of sewage discharge from recreational uses and requires certain marinas to install and maintain facilities that pump sewage out of marine holding tanks on vessels. DEC is charged with producing material for the boating public on the environmental benefits of using pump out stations and their locations throughout the state.
Chapter 244 corrects an inconsistency in the Environmental Conservation Law (ECL) under which water treatment plants that provide drinking water were charged a higher SPDES permit fee than wastewater treatment plants that discharge contaminated water. In many cases, the same municipality owns both facilities. The legislation includes publicly owned drinking water treatment plants within the definition of "municipal facility" for purposes of the SPDES permit fee. This ensures that DEC will not charge a publicly owned drinking water treatment plants the higher rates charged industrial facilities.
Chapter 395 requires all water well drillers to obtain certificates of registration from DEC. All water well drilling must comply with Department of Health regulations. Before drilling, water well drillers must file a notice with DEC and submit a report to DEC upon completion of the well. By January 1, 2003, any person responsible for the on-site supervision of water well drilling must have passed a certification test from the National Groundwater Association or an equivalent body approved by DEC. The Department of Health must establish standards for water wells, including drilling, construction, abandonment, repair, maintenance, and water flow.
Chapter 203 extends Nassau County's authority to enforce certain provisions of the ECL concerning water pollution until October 1, 2001. The legislation extends the authority of Nassau County, first granted in 1990, to enforce certain water pollution control provisions, including the general prohibition against pollution and pollution of the marine district, and for the control of bulk petroleum storage. Suffolk County's authority to enforce certain provisions of the ECL was allowed to expire.
Chapter 364 relieves certain small dams from DEC permitting requirements. The law is designed to shift DEC's focus from the permitting of small dams, which pose negligible safety risks, to proper maintenance and repair of larger structures. The volume of permit applications for small dams had increased significantly because small dams are more frequently being used in wetlands restoration and stormwater management projects.
A flurry of legislation addressed protection of New York's fish and wildlife resources. A number of these laws affect hunting. For example, Chapter 230 requires DEC to revoke hunting, fishing, or trapping licenses of people who illegally take wildlife while in or on a motor vehicle. Chapter 208 prohibits "canned shoots" of intentionally confined non-native, big game animals for a fee. These animals include cougar, wolf, bear, certain deer, and bison. It prohibits a person who owns, operates, or manages a facility or hunting preserve from shooting, spearing, or charging a fee to shoot or spear, animals that are tied, hobbled, staked, or placed in a small pen or cage. It protects non-native big game animals, usually obtained as surplus animals from zoos or private breeders, and captive-bred big game animals. Other state laws already protect wild big game animals native to New York.
Postscript on Takings
On July 23, 1999, this column, under the headline "Groundwater Contamination as a 'Taking'," discussed an April 9, 1999 decision by Judge Eldon E. Fallon of the U.S. District Court in the Eastern District of Louisiana, Mongrue v. Monsanto Co. In deciding a motion on the pleadings, the court declared that (upon a proper factual showing) a violation of the takings clause of the U.S. Constitution could be made out where a private defendant's allegedly polluting activities were authorized by state permit.
On October 21, 1999, Judge Fallon ruled on defendant's motion for summary judgment. He found that, on the facts, plaintiffs had not made out a takings claim against Monsanto. The court found that Monsanto did not fall within those categories of private entities that may lawfully expropriate land (such as certain railroad and utility companies), and moreover that Monsanto's activities were purely private and did not serve a "public and necessary purpose." Therefore they could not constitute a "taking." This ruling severely limits the applicability of this theory to other cases.
Michael B. Gerrard is a partner in the New York office of Arnold & Porter. The American Bar Association has just published his fifth book, The Law of Environmental Justice: Theories and Procedures to Address Disproportionate Risks. Barnett Lawrence and Elizabeth Stringer of the firm's Washington, D.C. office assisted in the preparation of this article.