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Environment Committee Alert
March 28, 2012

Contact: Darren Suarez

New York State Budget

Governor Andrew M. Cuomo, Senate Majority Leader Dean Skelos and Assembly Speaker Sheldon Silver on March 27, announced an agreement on the 2012-2013 New York State Budget.

All Funds spending will total approximately $132.6 billion, a decrease of $135 million from last year. This is the second consecutive year with a net reduction in All Funds spending, the first time this has happened in at least three decades.

State Funds will total approximately $88.8 billion in 2012-13. The Budget achieves flat state agency spending through the ongoing redesign of agency operations to reduce duplication, redundancy and waste.

New York Works Task Force. The New York Works Task Force is the centerpiece of Governor Cuomo's jobs program. The Task Force will coordinate comprehensive capital plans, overseeing all investment in infrastructure projects, and accelerating hundreds of critical projects across the state.

Repairing New York's Dams and Flood Control Infrastructure. The New York Works Funds will designate $102 million, leveraging more than $100 million in matching funds, to repair aged and otherwise failing structures, including levees, flood walls, dams, pumps and channels. The $102 million will include $18.5 million to repair state-owned dams, $56 million to perform maintenance of flood control facilities such as levees, and $27 million to implement coastal hazard and inlet navigation maintenance projects, plus over $100 million in matching funds.

Rebuilding New York's State Parks. The New York Works Fund will provide $89 million, leveraging $143 million in total funding, to rehabilitate state parks. Projects will be funded in every region of the state, making improvements in 48 state parks and historic sites that serve 37 million visitors annually.

Transportation/Environment/Economic Development. S.6258-D/A.9058-D 

The following proposals were not include in the final budget:

Assembly proposal to:

Assembly (Part GG) Health Study. This new part would commission a $100,000 study, by a school of public health within the State University of New York. The study would examine the potential public health impacts that could be caused by the extraction of natural gas using horizontal drilling and high-volume hydraulic fracturing. 

Senate (Part UU) Bottle Bill Enforcement. This provision would amend sections of the New York State “Bottle Bill” to include provisions that are intended to counter fraud. The provision contains a civil right of action to enforce provisions of the “Bottle Bill.”  Additionally, the provision includes additional criminal sanctions for failing to perform any duty imposed by this title.

Senate (Part VV) Home Heating Oil. This provision would extend from 2012 until 2015 a requirement that all number two heating oil in the state shall not have a sulfur content greater than fifteen parts per million.

Senate (Revenue Part LL) Environmental Zones. These provisions would reestablish the definition of environmental zone, to include census tracks and block numbering areas which have a poverty rate at least two times the poverty rate for the county in which the areas are located. Additionally, this part would increase the tax credit for premiums paid for environmental remediation insurance up to the lesser of $50,000 (from $30,000) or 50% of the cost of the premiums.

EPA Proposed Carbon Pollution Standard for Future Power Plants.

On March 27, 2012, the Environmental Protection Agency (EPA) proposed the first Clean Air Act standard for carbon pollution from future power plants. The proposed standard is limited to new power plants.

The new standard sets a limit of 1,000 pounds of carbon dioxide emissions per megawatt-hour of electricity produced. The standard will effectively require new coal plants to include carbon capture and storage. The EPA will allow new plants to begin operating with higher levels of emissions as long as the average annual emissions over a period of 30 years met the standard.

The EPA Administrator Jackson told reporters that the agency has "no plans" to issue climate rules for existing plants.

Sackett v. Environmental Protection Agency

In Sackett v. Environmental Protection Agency  the Supreme Court held the petitioners may bring a civil action under the Administrative Procedure Act to challenge the issuance of the Environmental Protection Agency’s administrative compliance order under Section 309 of the Clean Water Act, requiring them to take certain actions with respect to their property.

The case was 9-0 decision with an opinion by Justice Scalia on March 21, 2012. Justices Ginsburg and Alito each filed concurring opinions.

Michael and Chantell Sackett own a small (0.63 acre) lot near Priest Lake, Idaho, on which they intend to build their family home. The Sacketts had obtained no information that gave them any reason to believe that their property contained “wetlands” regulated under the Clean Water Act. They obtained all required local permits and began to build their new home when they were issued an order to stop the development, and restore the property to its former state or face fines that the EPA said could reach $75,000 a day. The EPA acted under the Clean Water Act, and it insisted that the couple could not sue to challenge the order and had to wait for court review at the option of EPA.

The Court stated that it was not deciding if the Sackett’s should win their court case, but only they had a right to file it at their choosing.

State Environmental Quality Review Act - Revised Model Environmental Assessment Forms, effective October 1, 2012

On January 25, 2012, the Department adopted revised model environmental assessment forms (EAFs) (to be published at 6 NYCRR 617.20, appendices A and B). This is the first major update to the forms in decades.

The revised model EAFs, which replace the existing ones set out at 6 NYCRR 617.20, appendices A, B, and C, are a general update to the existing forms, and incorporate consideration of areas of environmental concern that have arisen since the existing forms were last promulgated in 1978 and 1987. In addition to substantive changes, the structure of the forms has been updated, to make them easier to use.

The effective date of the new forms has been postponed until October 1, 2012. The Department is preparing detailed guidance instructions for completing the forms (called the workbooks), and expects to solicit public comment on the workbooks through its website and notice in the Environmental Notice Bulletin once the workbooks are completed in draft.

A substantial number of the concerns contained in the Business Council’s comments were addressed in the revised model EAFs.

EPA Testing in Dimock Does Not Show Contamination

On March 15, the Associated Press reported that the EPA declared that well water testing at 11 homes in Dimock, PA show no signs of contamination from natural gas development. Regulators say water samples from six of the 11 homes showed sodium, methane, chromium or bacteria, but at safe levels. Arsenic was found in the well water of two homes but at low levels.

A handful of residents are suing Cabot Oil & Gas Corp., saying the Houston-based driller contaminated their wells with potentially explosive methane gas and with drilling chemicals.

Cabot Oil & Gas Corp has stated that they did not utilize a hydraulic fracturing fluid that contained that sodium or chromium, and evidence indicates strongly that the arsenic is of a natural origin; simply the contamination was not the result of hydraulic fracturing fluids.

Of note is according to an updated study released by the Center for Rural Pennsylvania last year, more than 40 percent of private water wells tested in the state don not meet basic health and safety standards for drinking water.

Spring Environment Conference

The Business Council of New York State, Inc. will host its 2012 Spring Environmental Conference on Thursday, April 19, at the Hotel Albany, Albany, NY. This one-day conference provides participants with an update on environmental issues by key officials from the New York State Department of Environmental Conservation (NYS DEC), and the United States Environmental Protection Agency (U.S. EPA).

The Honorable Joseph Martens, Commissioner of the NYS DEC, and Judith Enck, Regional Administrator of the U.S. EPA, Region 2, will be among the speakers addressing environmental professionals from the manufacturing, industrial, engineering and legal sectors. This year’s luncheon keynote address will be given by Colonel John R. Boulé, District Commander, U.S. Army Corps of Engineers, New York District. The New York District is responsible for the Corps’ water resource development, navigation, and regulatory activities in northeastern New Jersey, eastern and south-central New York State, including the New York Harbor and Long Island, and parts of Vermont, Massachusetts, and Connecticut.

Participants will have the opportunity to hear from and meet the experts who write and implement environmental laws and regulations. They will get the latest information on key topics including: Marcellus Shale, SEQRA short and long form changes, developments in environmental justice, and updates on solid waste and remediation.

Empire Energy Forum on the Marcellus Shale

On April 4th and April 5th, the Empire Energy Forum is holding two forums for community leaders to hear explanations about the science and the process of hydraulic fracturing to unlock the rich store of natural gas in the Marcellus Shale region.

Discussions by a panel of recognized experts on the following subjects: overview of the Marcellus Shale, hydraulic fracturing “How it Works”, Pennsylvania experience, economic impact on New York State, road improvement issue, and regulation waste water issues. Admission to this event is free. Registration is required as space is limited.