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DEC Drafts Replacement Stormwater Permit for Construction Activity

Vicki G. Schlierer

On October 28, the New York State Department of Environmental Conservation (“Department”) published a notice in the Environmental Notice Bulletin of the availability of the draft Stormwater General Permit for Construction Activity (GP 0-10-001) (“Permit”) which will replace the current permit on its expiration in April 2010.  At the same time, the Department noticed a draft SPDES General Permit For Stormwater Discharges from Municipal Separate Storm Sewer Systems (“MS4s”) and revisions to its Designation Criteria For Identifying Regulated Municipal Separate Storm Sewer Systems.  Written comments on both permits and the Designation Criteria must be submitted by December 16, 2010 to:

Teresa Diehsner

NYS DEC - Division of Environmental Permits

625 Broadway, 4th Floor

Albany, NY 12233-1750

txdiehsn@gw.dec.state.ny.us

In addition, the following public hearings will be held.  All hearings will start at 2:00 pm.

• November 10, 2009 - NYS DEC Stony Brook Office
• November 17, 2009 - Victor, NY Town Hall
• November 24, 2009 - NYS DEC Headquarters, Room 129 A and B, Albany
• December 1, 2009 - Putnam County

 

A copy of the proposed permit can be found at:

http://www.dec.ny.gov/docs/water_pdf/gpcons01001.pdf

Court Decision Gives SEQRA Standing to Those Who “Use and Enjoy Natural Resources”

Vicki G. Schlierer

An October 27, 2009 Court of Appeals ruling will make it easier for environmental groups to bring suit under the State Environmental Quality Review Act (SEQRA), by giving standing to anyone who can "prove that he or she uses and enjoys a natural resource more than most other members of the public."  The decision came as the environmental group Save the Pine Bush tried to block a hotel planned for the environmentally sensitive Pine Bush area in the City of Albany.  While the court ultimately ruled against the environmental group, stating that the city had performed a proper SEQRA review of the project, it also ruled that Save the Pine Bush had the right to sue, rebuffing the City's argument that only actual neighbors of the project have proper standing to launch such a challenge.  Environmental groups have struggled with the concept of standing since 1991, when a state court ruled that potential plaintiffs had to show that they were close enough to a proposed development to be specially affected by its impact. The full decision in the Matter of Save the Pine Bush, Inc. v Common Council of the City of Albany can be found at: http://www.nycourts.gov/reporter/3dseries/2009/2009_07667.htm

Chesapeake Energy Corporation Receives EPA Award

Vicki G. Schlierer

      Chesapeake Energy Corporation has been selected by the U.S. Environmental Protection Agency (EPA) as the Natural Gas STAR Production Partner of the Year.  The Natural Gas STAR Program is a voluntary program that encourages reduction of methane emissions and documentation of those reductions.  Suzie Waltzer, EPA Natural Gas STAR Program Coordinator, said, “We are very pleased to honor Chesapeake as the 2009 Natural Gas STAR Production Partner of the Year… As the nation’s most active driller and one of the largest producers of natural gas in the U.S., we greatly appreciate Chesapeake's overall strong participation in the Natural Gas STAR Program.”      

    Chesapeake employee Andrew McCalmont was also honored as the Implementation Manager of the Year.  Further information on the Natural Gas STAR program is available at http://www.epa.gov/gasstar/. 

    The West Firm is pleased to represent Chesapeake in New York State.

DEC Announces Public Hearings on Draft Supplemental Environmental Impact Statement

Vicki G. Schlierer

    The New York State Department of Environmental Conservation has announced the schedule for public hearings on the draft Supplemental Environmental Impact Statement (“dSGEIS”) for the Oil, Gas and Solution Mining Regulatory Program.  The hearings will be held as follows:

·        Wednesday, Oct. 28, Sullivan County Community College, E Building, Seelig Theater, 112 College Rd., Loch Sheldrake, NY 12759.

·        Tuesday, Nov. 10, Stuyvesant High School, High School Auditorium, 345 Chambers Street, New York, NY 10282.

·        Thursday, Nov. 12, Chenango Valley High School, High School Auditorium, 221 Chenango Bridge Rd., Chenango Bridge, NY 13901.

·        Elmira - Corning, Date and location to be determined.

    Hearing locations will open at 6 p.m. for individual questions and sign up with the public comment session starting at 7 p.m.  Individuals intending to speak will be required to sign in upon arrival and will be called in the order registered.  There is a five-minute limit on oral presentations.  Formal presentations such as PowerPoint are not allowed, but speakers may supplement their oral presentations with written comments. Written and oral comments receive equal consideration.

    In addition to presenting comments at one of these hearings, comments on the dSGEIS may be submitted on line at http://www.dec.ny.gov/cfmx/extapps/SGEISComments/; by e-mail to dmnsgeis@gw.dec.state.ny.us; or in writing to dSGEIS Comments, Bureau of Oil & Gas Regulation, NYSDEC Division of Mineral Resources, 625 Broadway, Third Floor, Albany, NY 12233-6500. Comments must be submitted by November 30, 2009.

    To view a copy of the dSGEIS, click here.

OSHA Proposes Major Changes to Hazard Communication Standard

Vicki G. Schlierer

On September 30, 2009, the Occupational Safety and Health Administration (“OSHA”) made public a proposal to modify the existing Hazard Communication Standard to conform to the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (“GHS”).   Many international organizations and stakeholders, including the United States, participated in dthe development of the GHS.  The purpose of the GHS was to address inconsistencies in hazard communication and to provide a single system to classify chemicals, labels and safety data sheets. 

Among other things, the proposed changes to the current Hazard Communication Standard would:

1. Revise criteria for the classification of chemical hazards;
2. Revise labeling requirements to include the use of standardized signal words, pictograms and precautionary statement;
3. Provide a standard format for Material Safety Data Sheets;
4. Revise employee training requirements;
5. Revise certain definitions;
6. Modify the standards for flammable and combustible liquids;
7. Revise requirements for process safety management; and
8. Modify many substance-specific health standards.
   

Comments on the proposal are being accepted through December 29, 2009.  Comments may be submitted on the Federal e-Rulemaking Portal at www.regulations.gov or by sending three copies to the OSHA Docket Office, Docket No. OSHA-H022L-2006-0062, U.S. Department of Labor, Room N-2625, 200 Constitution Ave. N.W. Washington, D.C. 20210.

To view a copy of the proposal, go to http://edocket.access.gpo.gov/2009/E9-22483.htmv.

 

The West Firm Recognized by New York Super Lawyers®

Vicki G. Schlierer

For the third year in a row, Thomas West, founder of The West Firm, has been selected as a New York State Super Lawyer ®.  Tom was featured in an article in the 2009 edition of the Upstate New York Super Lawyers ® magazine.  Click here to view the article.

DEC Releases Draft Final Supplemental Generic Environmental Impact Statement

Vicki G. Schlierer

On September 30, 2009, the Department of Environmental Conservation released its draft Final Supplemental Generic Impact Statement for the Oil and Gas Industry ("SGEIS").  This document addresses high volume hydraulic fracturing of the type associated with drilling in the Marcellus Shale.  Public comment on the draft will be accepted through November 30, 2009.  To view a copy of the SGEIS, go to The West Firm web site at www.westfirmlaw.com/pdf/09302009SGEIS.pdf. 

Pro-Drilling Rally Held in Bainbridge, New York

Vicki G. Schlierer

On Sunday, August 23, 2009, approximately 2000 people attended a rally supporting oil and gas exploration and recovery in the Southern Tier of New York.  The event, held in the General Clinton Park in Bainbridge was a grassroots lobbying effort opposing the FRAC Act, legislation to tighten federal regulations on hydraulic fracturing.  In makeshift booths and pavilions, lawyers and financial firms offered their services and volunteers collected signatures on letters to federal representatives, including U.S. Rep. Maurice Hinchey, D-Hurley.

Both state Senator Thomas W. Libous and Assemblyman Clifford Crouch, R-Guilford, promised support. "We are not on the (Governor David)Paterson team," said Libous, R-Binghamton. "We are on your team. That's why we are here."  In a separate interview, Libous said he was not opposed DEC's decision to review the environmental impacts and update regulations but feels it is taking far too long and hindering economic development.

To view a copy of a local article covering the event, click here.

DEC Adopts New Dam Safety Regulations

Vicki G. Schlierer

On August 12, 2009, the New York State Department of Environmental Conservation announced the adoption of revisions to the state’s dam safety regulations.  The revisions include a new 6 NYCRR Part 673 and changes to 6 NYCRR Parts 608 and 621.  The new regulations were promulgated to incorporate changes that were previously made to the Environmental Conservation Law in 1999 and 2006.  The new regulations apply to dams with heights over six feet, or impoundment capacity greater that one million gallons, except dams with a height of less than 15 feet with a maximum impoundment capacity of less than three million gallons.

 Some of the notable changes include:

• The Department has discretion to accept equivalent reports from or to federal agencies in lieu of reports required under Part 673. (section 673.3)
  

• Requires an inspection and maintenance plan for Intermediate Hazard and High Hazard Dams. (section 673.6)
  

• Requires Emergency Action Plans for Intermediate Hazard and High Hazards Dams to be submitted to the Department; such plans to be updated annually and provided to certain parties. (section 673.7)
  

• Requires regular Safety Inspections to be conducted by an engineer and reports to be provided to the Department. (section 673.12)
  

• Requires Engineering Assessments for Intermediate Hazard and High Hazard Dams. (section 673.13) 
  

The text of the revised regulations and a summary of the final rule can be found on The West Firm’s web site at http://www.westfirmlaw.com/pdf/damsafteyregs2009.pdf.

A CD with the complete rulemaking package, including the Responsiveness Summary, Flexibility Analysis and SEQRA documents, is available by contacting:

Alon Dominitz
NYS DEC - Division of Water
Dam Safety Section
625 Broadway, Albany,NY 12233-3504
Phone: (518) 402-8151 E-mail: damsregs@gw.dec.state.ny.us

Pennsylvania Study Finds Severance Tax Will Negatively Affect Drilling Activity

Vicki Schlierer

A newly-released study by Penn State University has found that a severance tax in Pennsylvania on natural gas drilling would decrease drilling activity by more than 30 percent and result in an estimated $880 million net loss in the present value of the state’s tax revenue over the next ten years.  Pennsylvania Governor Ed Rendell has been advocating a new “extraction tax” on companies that drill for natural gas in the state, claiming that the tax would produce up to $107 million per year, an infusion of cash needed to balance his $28.8 billion budget plan for 2009-2010.  However, the study, commissioned by the Marcellus Shale Committee, a organization of industry representatives opposed to the proposed tax, and authored by researchers at Penn State University, reports that any revenue gains would be more than offset by declining state and local income taxes resulting from lower drilling activity under the severance tax.  The high level of drilling activity in Pennsylvania, according to the study, is a function of relatively lower taxes, and since the severance tax cannot be passed on to consumers, drilling activity would decrease across the state.  Governor Rendell disagreed, stating that a similar tax in West Virgina has had no effect on drilling activity.

The report was officially released by Pennsylvania State Representatives Tim Solobay (D-Canonsburg) and Brian Ellis (R-Butler), part of the 60-member House Oil & Gas Caucus, a group opposed to the proposed tax.  “The high level of drilling activity in Pennsylvania is partially a result of relatively lower taxes” compared to other states, said Mr. Solobay.  “This report sends a strong warning that if we impose a severance tax on natural gas production, we will miss out on this opportunity.”

A complete copy of the study, titled “An Emerging Giant: Prospects and Economic Impacts of Developing the Marcellus Shale Natural Gas Play” can be found on The West Firm’s web site at: http://www.westfirmlaw.com/pdf/EconomicImpactsofDeveloping%20Marcellus.pdf.