On August 26, 2019, Bull Run Energy LLC filed an application to construct a 449-megawatt (MW) wind energy facility in the towns of Altona, Clinton, Ellenburg, and Mooers. It is expected to include up to 139 wind turbines, together with associated access roads, an electrical collection system, meteorological towers, an operation and maintenance building, electrical interconnection facilities, and for construction purposes a concrete batch plant and construction staging and laydown yards. The property being considered for all these components total approximately 54,200 acres. The project area is bordered by the Adirondack Park to the south and the Canadian border to the north.
The Bull Run Project was initially proposed in 2015 and had been largely dormant since 2017 until recently. Additional information about the project is available on the New York Department of Public Service DMM website for the project, available here.
As of September 19, 2019, there are only three public comments about the project and no local parties to the proceeding. In any Article 10 proceeding, intervenor funds are provided for use by local public or municipal parties. Funds can be used to at least partially offset the cost of retaining technical experts and attorneys. Funds are available regardless of whether a party supports or opposes a project. The deadline for interested parties to request intervenor funds to participate in this matter is September 27, 2019.
For inquiries about the process for siting large power plants pursuant to Article 10 of the New York State Public Service Law, please contact Benjamin E. Wisniewski or Bridget O’Toole. The Zoghlin Group represents individuals, public interest groups, and municipalities in Article 10 proceedings throughout New York State.
In March of 2019, a Rochester resident sued the City of Rochester (the “City”) seeking to compel the City to provide footage from police body cameras under New York’s Freedom of Information Law (“FOIL”). The City resident specifically sought footage of body cameras worn by police officers who allegedly shot his dog — which was in his fenced-in back yard — on October 19, 2018. The resident claimed that the officers entered his property without a warrant and without his permission.
The resident asked the City for the footage, but was told in an email that the City “did not possess any body-worn camera recording of (the officer) shooting and killing” the dog. However, after the resident’s attorney submitted a FOIL request to the City seeking the footage, City officials acknowledged that the incident had been recorded, but nonetheless refused to provide the recording.
Accordingly, the resident sued the City this year, asking the New York State Supreme Court to force the City to release the video, pursuant to FOIL. In an April 25, 2019 decision, the Court granted the resident’s petition, and ordered the City to provide video, which it did.
But the case didn’t end there. Under FOIL, a successful petitioner can obtain attorneys’ fees and costs from the agency that illegally denied access to the requested record, especially where “the agency had no reasonable basis for denying access”. Accordingly, the Court held that the City was required to pay the resident’s attorneys fees from the lawsuit, and ordered the City to pay the resident $10,000.00.
This case highlights the importance of the Freedom Of Information Law. FOIL offers an important tool for individuals, groups, and businesses to gain access to government records, promote transparency, and provide a check on local power. Likewise, the federal Freedom of Information Act (“FOIA”) grants public access to federal government records, subject to specific exceptions.
Whereas the press and those concerned with government oversight sometimes use FOIL/FOIA to make information public, others use it to obtain evidence in anticipation of litigation, to stay informed about projects that may affect them, or simply to monitor what government agencies are up to.
For municipalities and agencies, though, the risks of failing to comply with FOIL can be significant, and a mistake can be expensive. The possibility that a Court may grant attorneys’ fees and costs both encourages government agencies to provide records that the public has a legal right to access, and helps offset the cost of litigation for individuals, groups, and businesses who were illegally denied access to public records.
If you are concerned about how a potential FOIL violation may affect you or your business, would like help submitting a FOIL request or appeal, would like to challenge a FOIL denial in court, or if you are a member of a local government or government agency that has been accused of a FOIL violation, be sure to contact an experienced attorney for help.
For inquiries related to the Freedom Of Information Law, the Freedom of Information Act, the Open Meetings Law, and other Municipal Law issues, please contact Jacob H. Zoghlin, Esq. or Mindy L. Zoghlin, Esq. at The Zoghlin Group, PLLC.
See “Rochester Must Pay $10,000 In Police Video Case,” By Bennett Loudon, The Daily Record, August 9, 2019, available at https://nydailyrecord.com/2019/08/08/rochester-must-pay-10000-in-police-video-case/.
Public Officers Law §89(4)(c).
Earlier this year, an individual and two businesses (“Plaintiffs”) brought suit to challenge the Town of Canandaigua’s local sign ordinance. The complaint, which was filed in the United States District Court for the Western District of New York on June 28, claims that the Town’s local sign law violates Plaintiffs’ rights under the First and Fourteenth Amendments, and seeks an injunction, damages, and attorneys fees.
The dispute arose in May, when Town officials sent letters to property owners threatening to impose penalties, fines, and other punishments if they did not remove outdoor advertising signs from their properties. The Town claimed that the Lamar advertising signs on the local business’s property violated the Town’s sign ordinance, which (with limited exceptions) only permitted signs that advertise a business or service that is available on the premises where the sign is located rather than off-premises.
Sign laws can raise tricky issues because they must balance community concerns and zoning goals against protections for freedom of speech. Cases like these can be so complicated that entire seminars are sometimes dedicated to discussing these issues.
In January of 2018, Mindy L. Zoghlin, Esq. (the Principal Attorney at The Zoghlin Group) presented a Continuing Legal Education seminar (a “CLE”) on the subject of sign laws at the New York State Bar Association’s Annual Meeting. In her presentation, Mindy Zoghlin discussed a significant United States Supreme Court case — Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015) (“Reed”) — which addressed a municipality’s authority to regulate signs.
In Reed, the Supreme Court struck down the Town of Gilbert’s sign ordinance, which required permits for all outdoor signs, and which exempted certain signs from the permit requirement if they fell into specific categories. The majority in Reed essentially held that if someone must read a sign to understand what sign rule applies (or how a sign rule applies), then the law is “content-based,” and therefore subject to the highest level of judicial review known as “strict scrutiny.”
Under strict scrutiny, a government regulation (in this case a sign ordinance) will only be upheld if the government establishes that the law furthers a “compelling governmental interest” and is narrowly tailored to achieve that interest. In practice, when courts evaluate a law using strict scrutiny, the law usually ends up being struck down. As the old adage in the legal community goes: “strict scrutiny is strict in theory, but fatal in fact.”
By contrast, Justice Alito’s concurrence in Reed suggested that sign ordinances could lawfully distinguish between signs that advertise goods or services available on-premises from those that advertise goods and services available off-premises. Under Justice Alito’s reasoning, such distinctions are not necessarily “content-based,” but may instead be “content-neutral,” and would therefore be subject to a lower level of judicial review known as “intermediate scrutiny.”
Under intermediate scrutiny, a government regulation will only be upheld if it furthers an important government interest and does so by means that are substantially related to that interest.
Because the facts of Reed involved only private speech rather than commercial speech, lower courts have since held that the majority opinion in Reed does not require the application of strict scrutiny to laws regulating commercial speech (rather than private speech). Instead, many courts have held that, as Justice Alito’s concurrence in Reed suggested, and as the Supreme Court previously held in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980) (“Central Hudson”), intermediate scrutiny applies to regulations on commercial speech. Accordingly, whether a sign law survives a legal challenge depends, at least in part, both on whether it treats signs differently based on their content, and whether it regulates private signs or commercial signs.
While the rules may seem complicated, and the differences minor, the consequences of enacting an improper sign law can be significant. Plaintiffs challenging unconstitutional government action often seek attorneys’ fees, which can turn a seemingly small sign violation into an expensive lawsuit. The possibility of recovering attorneys’ fees also makes such cases more palatable to plaintiffs because recovery of such expenses by successful plaintiffs reduces the cost of challenging unconstitutional laws.
Accordingly, if your municipality is considering a local sign law, it should first seek advice from a land-use attorney who understands the constitutional limitations on such laws. Likewise, if local government officials try to force you to remove a sign from your home or business, you may have the right to challenge them. In either case, before you enact such a law, enforce it, defy it, or challenge it, make sure you talk to an experienced attorney who can help.
See “Lawsuit Challenges Canandaigua Sign Ordinance,” By Bennett Loudon, The Daily Record, July 30, 2019, available at https://nydailyrecord.com/2019/07/30/lawsuit-challenges-canandaigua-sign-ordinance/.
See Docket Report for Lamar Advertising of Penn, LLC et al v. Town of Canandaigua et al, Case Number 6:2019cv06487, Western District of New York, Justia Dockets & Filings, June 28, 2019, available at https://dockets.justia.com/docket/new-york/nywdce/6:2019cv06487/124411.
See “Local & State Government Section Meeting,” 2018 NYSBA Annual Meeting Schedule for January 25, 2018, available at http://www.nysba.org/am2018lstgovt/.
Drafting effective legislation is hard. Drafting local legislation to regulate the development of wind and solar energy facilities is harder. Government officials and residents alike need to balance many competing interests when drafting a local law governing wind and solar energy siting. How much development is desirable? Where should wind turbines and solar panels be built? What scale of green energy development is consistent with existing community character and a town’s plan for development? Are there public safety considerations? How can a municipality protect itself against zombie turbines and zombie solar panels? These are important questions, and a good local law should address all of them. The answers are likely to be entirely specific to your town.
There are many template laws available online, but it is important to remember that local laws are not a one-size-fits-all proposition. When reviewing a template, policymakers should consider who drafted or is promoting the law, and what the person or entity’s interest is in providing such a template. For example, NYSERDA provides a template local solar law here. This template may be a great starting point for some towns, but all towns should keep in mind that NYSERDA has a vested interested in promoting wind and solar energy production in New York State.
On the other side of the spectrum, the laws here, here, and here are drafted or supported by people, towns, or entities who are, for whatever reason, opposed to large scale development of renewable energy in certain locations.
For inquiries about drafting wind and solar laws, or for siting large power plants pursuant to Article 10 of the New York State Public Service Law, please contact Benjamin E. Wisniewski. The Zoghlin Group represents individuals, public interest groups, and municipalities in Article 10 proceedings throughout New York State, and has experience helping both government and public parties tackle the challenging task of updating local energy laws.
On June 5, 2019, the Observer published an article on a potential Open Meetings Law violation by the Chautauqua County Planning Board. The article alleges that, at a June meeting, the Board was considering an application involving the acquisition of land for soccer fields for Jamestown Community College. Before presenting on the plan, the College’s president allegedly asked if members of the media were present.
When the Board learned that a reporter from the Observer was present, it voted to go into executive session to discuss “privileged information.” However, the Board’s description of the topic that it sought to discuss in private — “privileged information” — was probably not specific enough to comply with state law.
Pursuant to New York’s Open Meetings Law, all meetings of public bodies must be open to attendance by the general public. The law only allows public bodies to exclude the public from portions of its meetings (known as “executive sessions”) to discuss eights categories of topics. The law further establishes that, to enter an executive session, a public body must: (1) vote to do so during a properly noticed and open meeting; and (2) identify the general subjects to be considered.
Under the law, “privileged information” is not specific enough of an explanation of the topics to be discussed during an executive session. To more fully comply with the law, the Board should have explained that it was going into executive session to discuss “the proposed acquisition, sale or lease of real property” and that “publicity would substantially affect the value thereof.” In a situation like this, if a Board can give the public more details about the topic to be discussed during the executive session without affecting the value of the property — such as the purpose of the proposed acquisition, who the property would be purchased from, or the location of the property under consideration — its decision is more likely to comply with the law.
Compliance with the Open Meetings Law is extremely important, both to the public and to the public entities. From a policy perspective, open meetings help protect the integrity of public entities by ensuring that public business is conducted in a transparent manner. For businesses and local residents, open meetings help the public stay informed about what’s happening in their communities.
For public bodies, though, the risks of failing to comply with the Open Meetings Law can be significant, and a mistake can be expensive. Under certain circumstances, courts are empowered to (1) declare that a public body has violated the, (2) require the public body to participate in a training on its obligations under the Open Meetings Law, (3) annul any action taken by the public entity in violation of the law, and (4) award a successful party the costs and attorney fees associated with successfully prosecuting an Open Meetings Law violation.
If you are concerned about how a potential Open Meetings Law violation may affect you, your business, or your neighborhood, or if you are a member of a public body that has been accused of an Open Meetings Law violation, be sure to contact an experienced attorney for help.
See “Meeting closed over potential JCC land buy,” By M.J. Stafford, Observer, June 5, 2019, available at https://www.observertoday.com/news/page-one/2019/06/meeting-closed-over-potential-jcc-land-buy/.
See Public Officers Law §105(1)(h).
Nine years ago, for $1,200, a Dunkirk native bought a piece of land from the City of Lockport that contained a three-story, 16,000 square-foot building. His plan was to demolish the building and convert the property, which used to be an industrial power plant, into a gas station. But that never happened.
Within days of purchasing the property, New York State halted the purchaser’s plan to demolish the building because he had disturbed asbestos from the old power plant without (1) conducting an asbestos survey or (2) hiring a licensed contractor to remove it. His problems didn’t end there, either. More and more environmental issues associated with the property began to pile up that could be extremely expensive for the Dunkirk native.
In 2012, the United States Environmental Protection Agency (the “EPA”) added the property to the federal Superfund list, and then demolished most of the building a couple of years later. And because the Superfund law allows the government to recover cleanup costs, the Dunkirk native could end up being responsible for the $2.3 million that the EPA spent on demolition and cleanup.
In 2013, he was fined $40,000 for violations of the City building code (allegedly failing to remove a dumpster containing asbestos from the property, leaving the dumpster open, and allowing the wind to blow the asbestos around the neighborhood).
After the EPA discovered an underground fuel storage tank at the property, in 2016, the New York State Department of Environmental Conservation (the “DEC”) spent $68,000 to remove it, and recommended a $17,000 fine.
To make matters worse, the Dunkirk native also racked up $6,000 each year in unpaid property taxes. However, the environmental issues with the Property were so bad that the City didn’t seek to foreclose on it.
This story should serve as a teachable moment: Don’t underestimate the importance of environmental due diligence. If you’re considering buying a piece of property that used to be a power plant, industrial facility, or gas station, check to see if there’s a history of contamination or another risk factor that may result in environmental liability. If you’re considering buying such a property to develop, or only discover such problems after purchasing it, contact an experienced environmental attorney to help understand the risks, options, and how to move forward. As the Dunkirk man’s story demonstrates, the cost of going it alone, or “figuring it out” as you go along, could be significant. So don’t risk it!
For inquiries related to contaminated properties, questions about recovering the costs of remediation from a prior owner or person who caused the contamination, or help understanding other environmental law issues in New York State, please contact Jacob H. Zoghlin, Esq. or Mindy L. Zoghlin, Esq at The Zoghlin Group, PLLC.
See “Purchased for $1,200, Lockport Superfund site could cost owner millions,” By Thomas J. Prohaska, Buffalo News, June 8, 2019, available at https://buffalonews.com/2019/06/08/his-lockport-land-was-declared-a-superfund-site-and-cleaned-now-he-could-owe-millions/?utm_medium=more_stories.
The Siting Board cannot issue a Certificate unless it makes specific findings and determinations pursuant to Section 168 of the Public Service Law. These findings and determinations are described here. In a recent case, one wind energy developer argued that intervenor, municipal, and agency parties bear the burden of proving that a Certificate should not be granted. Will this argument prevail? And if so, how would the shift in burden of proof change the conduct of Article 10 proceedings?
The burden shifting argument is unlikely to prevail because both the State Administrative Procedure Act “SAPA” and Article 10 regulations place the burden of proof squarely an applicant for a Certificate. See State Administrative Procedure Act (“SAPA”) § 306(1) (“Except as otherwise provided by statute, the burden of proof shall be on the party who initiated the proceeding.”); 16 NYCRR 1000.12(b)(1) (“The applicant has the burden of proof to demonstrate that all findings and determinations required by section 168 of the PSL can be made by the board, and after the board’s jurisdiction has ceased, that all determinations required by the commission may be made.”). And legality aside, it would violate fundamental principles of fairness and due process for the Siting Board to simply presume a facility should be built unless other parties to the proceeding can prove otherwise.
But if the burden is in fact shifted, the impact on Article 10 proceedings would be dramatic. If state agencies or intervenors fail to identify potential problems early in the Article 10 process, would the case be disposed of via settlement without any testimony or cross-examination of witnesses? Would the initial review of an application for compliance with PSL 164 gain additional rigor, and would extended public comment be welcomed? Would Presiding Examiners entertain dispositive motions made by applicants and aimed at knocking out intervenor issues without the need for a live hearing and follow-on briefing? The answers to these questions are unknown, but if the burden of proof is shifted, Article 10 practitioners may soon know them all too well.
For inquiries about the process for siting large power plants pursuant to Article 10 of the New York State Public Service Law, please contact Benjamin E. Wisniewski. The Zoghlin Group represents individuals, public interest groups, and municipalities in Article 10 proceedings throughout New York State.
Last week, the Commissioner of the New York State Department of Environmental Conservation (the “DEC”) announced that a Niagara County man had been sentenced for an attack on an Environmental Conservation Police Officer.1 The attack allegedly occurred in 2018 when the defendant was driving an off-road Utility Vehicle (a “UTV”). DEC Commissioner Basil Seggos explained, “the defendant in this case purposely injured our officer in an attempt to evade charges, and I thank the Niagara County Sheriff’s Department and District Attorney ... for their help in bringing this case to justice.”
According to a DEC Press release, the Environmental Conservation Police Officer (the “ECPO”) responded to a report of trespassing on private property, and found the defendant and another man at the scene operating a UTV and an All-Terrain Vehicle (an “ATV”). Both men refused the ECPO’s order to stop. When the officer attempted to place the defendant under arrest, the defendant again refused to stop the UTV, and ended up dragging the ECPO while fleeing the scene. After being dragged for an estimated 400 yards, the officer reportedly sustained injuries to his forehead, as well as cuts and bruises to his arms and legs.
The DEC Bureau of Environmental Crimes Investigation led the search for the two men, with assistance from the Niagara County Sheriff’s Office and the New York State Police. The case was prosecuted by the Niagara County District Attorney’s Office. The defendant (the UTV driver) eventually pled guilty to assault in the third degree (a Class A misdemeanor), was sentenced by a Town Justice to one year in jail, and was ordered to pay $2,237 in restitution to the State for equipment that was destroyed during the assault.
The driver of the ATV, who had previously plead guilty to attempted reckless endangerment (a Class B misdemeanor) and ATV trespassing (a violation), paid $1,030 in fines and surcharges.
If these two men had just stopped when they were ordered to, they likely would’ve only been charged with ATV trespassing or a minor violation. Instead, their poor reaction in this situation led to more severe charges and sentences. This case highlights something that is obvious to most — you shouldn’t interfere with an investigation, refuse lawful orders, or assault an officer.
When faced with a government investigation, it’s important to respond calmly, deliberately, and peacefully. Being evasive, violent, or antagonistic will just land you in more trouble. If you find yourself the subject of an environmental investigation, you need to make sure you understand the reasons for the investigation, and get advice from a knowledgeable person who can help.
See “DEC Announces Sentencing of Man for 2018 Assault on an Environmental Conservation Police Officer,” New York State Department of Environmental Conservation, Public Involvement and News, Press Release, June 6, 2019, available at http://www.dec.ny.gov/press/117194.html.
Although the Siting Board makes the final decision to grant a Certificate of Environmental Compatibility and Public Need, most of an Article 10 proceeding is conducted before Presiding Examiners, not the Siting Board itself. The Presiding Examiners are administrative law judges from the New York State Department of Public Service and the Department of Environmental Conservation. Presiding Examiners are assigned to an Article 10 case shortly after a Preliminary Scoping Statement is filed, and remain with a case through the penultimate, trial-like adjudicatory proceedings. One of the last and most important actions taken by the Presiding Examiners is to issue a Recommended Decision to the Siting Board. The Siting Board relies heavily on the Presiding Examiners Recommended Decision when deciding whether to grant or deny a Certificate.
On May 23, 2019, the Presiding Examiners in the Application of Eight Point Wind, LLC, Case No. 15-F-0062 issued a Recommended Decision (available here).On May 24, 2019, the Presiding Examiners in the Application of Baron Winds, LLC, Case No. 15-F-0122, issued a Recommended Decision (available here). Check back to this blog soon for my analysis of some of the key recommended findings and determinations in these decisions.
Rochester, N.Y., May 15, 2019— The Daily Record selected Frances M. Kabat, Associate Attorney, The Zoghlin Group, PLLC. to receive an Excellence in Law Award, “Up & Coming Attorneys”.
The Daily Record’s Excellence in Law program honors members of the legal community with three distinguished awards: Top Women in Law, Up & Coming Attorneys, and Unsung Legal Heroes.
Top Women in Law awards recognize the outstanding accomplishments of female attorneys who are making notable contributions to the legal profession while inspiring positive change in the community. The Up & Coming Attorneys category honors those who demonstrate professional accomplishment, community service and a strong commitment to the legal profession early in their careers. To be considered, nominees must be admitted to the bar for 10 years or less. The Unsung Legal Heroes category honors staff members—paralegals, legal secretaries, administrators, law librarians and legal marketers—who help lawyers achieve success.
“This year’s Excellence in Law honorees are exceptional. Not only are they professionally accomplished, but they are committed to making a difference in their community,” said Suzanne Fischer-Huettner, publisher of The Daily Record. “The honorees, in the categories of Top Women in Law, Up & Coming Attorneys, and Unsung Legal Heroes, uphold the highest legal standards and improve communities throughout Western New York. It is an honor for The Daily Record to recognize their accomplishments.”
The 2019 Excellence in Law Awards will be presented June 6 at a luncheon and awards reception starting at 11:30 a.m. at the Hyatt Regency Rochester, 125 East Main Street in Rochester. Winners will be profiled in a special magazine that will be inserted into the June 7 issue of The Daily Record and available online at www.NYDailyRecord.com.The event hashtag is #TDREvents.
For more information about sponsorships and tickets for the Excellence in Law Awards, visit www.NYDailyRecord.com or call 585-363-7271.
About The Daily Record
The Daily Record has been providing essential legal news and information to Western New York for 111 years. With insightful articles and columns keeping the community apprised of the latest industry trends; local, state and federal decisions; bankruptcies, judgments, foreclosures and public notice information; plus comprehensive listings of up-to-date business transactions for Monroe County, The Daily Record is your source for all things law, real estate and finance. The Daily Record is part of BridgeTower Media, one of the country’s leading business-to-business media companies with 44 print and digital publications in more than 20 U.S. markets.
2019 Excellence in Law Honorees
Top Women in Law
Up & Coming Attorneys
Unsung Legal Heroes
Property owners, businesses and municipalities across New York State are experiencing flooding at an historic rate. The causes run the gambit from poorly maintained municipal stormwater systems to the flooding we have seen in 2017 and 2019 along Lake Ontario. Water is one of the most destructive forces of nature and once it starts coming in it can be very difficult to stop.
If your property is currently flooding, you should do the following:
After the flood waters have receded, you should do the following:
Last week, the Town of Westerlo Planning Board determined that the Costanza Solar Project will not have a significant adverse environmental impact provided specific conditions are met, including (1) updating the Stormwater Pollution Prevention Plan (“SWPPP”) and (2) doubling the quantity of evergreen plantings in the c-100 area.
Because projects like this must be disclosed in New York State’s Environmental Notice Bulletin (the “ENB”), we now know that the proposal involves the amendment of a previously approved Site Plan. The new site plan would reduce the footprint at the northern most portion of the project due to the selection of more efficient panels. As in the original application, the proposed facility will produce 2Mw. The project is located at 198 County Route 405 in the Town of Westerlo, New York.
Interested businesses, groups, and individuals have thirty days from May 22, 2019 (the date of publication of the notice on the ENB) to submit comments related to this action. In our experience, many people do not fully appreciate the impact that their comments can have. Well-crafted comments can highlight community concerns, raise unforeseen issues that require further attention, demonstrate substantive or procedural impediments to approval, and otherwise prove persuasive to local agencies. We have found that those who participate in the process have a better chance of having their concerns heard and addressed.
See “Conditioned Negative Declaration — Albany County,” New York State Department of Environmental Conservation, Environmental Notice Bulletin, May 22, 2019, available at https://www.dec.ny.gov/enb/20190522_not4.html.
After the Tonawanda Coke plant closed, government officials and local researchers expressed concerns about the environmental impacts that chemical contamination could cause to nearby neighborhoods and the Niagara River. Those concerns were justified by the discovery of about 900,000 gallons of ammonia waste, leaking tanks, and soils contaminated with “heavy metals like lead, mercury, cyanide and arsenic, PCBs and polycyclic aromatic hydrocarbons, a class of chemicals linked to increased rates of cancer.”1
Researchers have been conducting additional soil sampling from the surrounding communities of Green Island and the City and Town of Tonawanda to determine how far off-site the chemicals may have travelled, and therefore how extensive of a remediation is required.
After an initial tour of the surrounding area, Basil Seggos, the Commissioner of the New York State Department of Environmental Conservation (the “DEC”), estimated that “cleaning up Tonawanda Coke could take years.” 2
Based in part on those discoveries, the Erie County Legislature adopted a resolution in January 2019 asking the United States Environmental Protection Agency (the “EPA”) to designate the Tonawanda Coke facility a Superfund Site.3
But the Town of Tonawanda apparently has other plans for the Site. In a letter to the DEC, the Town Supervisor for Tonawanda requested that the DEC take the site off the Superfund list and re-assign it to the DEC’s Brownfield Cleanup Program (the “BPC”), which was established “to encourage private-sector cleanups of brownfields and to promote their redevelopment as a means to revitalize economically blighted communities.” According to local officials, the BPC could help facilitate a faster, safer, and more cost-effective cleanup and redevelopment of the site.
The questions and debates that the local municipalities are facing with the Tonawanda Coke plant are by no means unique to this facility. In fact, a plethora of local governments, businesses, and individuals all across New York face questions all the time about how to deal with contaminated properties, including what government programs can help and how to recover cleanup costs from the person or entity responsible.
See “Tainted soil found near Tonawanda Coke as on-site threat lessens,” By T.J. Pignataro, The Buffalo News, January 16, 2019, available at https://buffalonews.com/2019/01/16/tonawanda-cokes-immediate-on-site-threat-lessens-as-attention-turns-to-tainted-soil-in-nearby-neighborhoods/.
See “DEC commissioner says Tonawanda Coke cleanup could take years,” By Chris Caya, WBFO, Buffalo’s NPR News Station, January 17, 2019, available at https://news.wbfo.org/post/dec-commissioner-says-tonawanda-coke-cleanup-could-take-years.
See “Erie County legislators: Make Tonawanda Coke a Superfund site,” By Sandra Tan, The Buffalo News, January 17, 2019, available at https://buffalonews.com/2019/01/17/erie-county-legislators-make-tonawanda-coke-a-superfund-site/.
The United States Department of Justice (the “DOJ”) recently opened a criminal inquiry into another automobile manufacturer’s emissions-certification process.1
In the last several years, as emissions and fuel efficiency standards have tightened, automobile companies have faced accusations of violating those standards and falsifying tests or technical data. Some have questioned the accuracy of the companies’ computer-modeling methods, while other companies have been accused of installing “defeat” devices to help their vehicles cheat on the emissions tests.
In January, one automobile company paid the DOJ nearly $800 million dollars to settle claims that it had allegedly equipped vehicles with illegal emissions-management software. Likewise, other automobile companies have incurred billions of dollars in fines and legal settlements tied to alleged attempts to circumvent emissions requirements and cheat on emissions tests. As the automobile industry is seeing, taking shortcuts — or intentionally cheating to avoid compliance — can lead to substantial legal problems, including criminal investigations.
Although environmental laws and regulations can be complex and technical, ensuring strict compliance is extremely important. Whether you’re a Fortune 500 company, a statewide operation, or a small business, it’s better to incur the costs of compliance up-front than to cut-corners and risk large fines, legal liability, and criminal prosecution. Often that means engaging professionals to help you understand the legal constraints (such as on discharges), whether you are required to register or report to administrative agencies, or how to obtain and renew any required permits.
See “Ford Says Justice Dept. Has Opened Criminal Inquiry Into Emissions Issues,” By Tiffany Hsu, The New York Times, April 26, 2019, available at https://www.nytimes.com/2019/04/26/business/ford-emissions-criminal-investigation.html.
Earlier this year, the New York State Department of Environmental Conservation (the “DEC”) presented the results of a comprehensive environmental investigation of the Niagara Sanitation Landfill near North Tonawanda, New York1. The Landfill had accepted a variety of waste from the surrounding community over the course of its operation from 1955-1968, including soils contaminated from construction of the LaSalle Expressway and from Love Canal waste.
When the DEC and the New York State Department of Health investigated the Landfill in the 1980s and 1990s, they initially determined that it did not pose a significant threat to public health or the environment. However, DEC re-evaluated the area in 2013, and discovered that on-site areas of exposed waste and elevated contamination levels were present. This caused the Landfill to be reclassified as a Class 2 Superfund site in December 2015.
As a result of the reclassification, a full comprehensive remedial investigation was required. Occidental (previously Hooker Chemical) then entered into a consent order with the DEC, voluntarily removed the Love Canal-related waste in 2014 and 2015 and disposed of it at an approved facility.
Despite these findings, the DEC assured nearby residents that “there is no migration of contamination from the landfill adversely impacting surrounding properties.”
However, after some nearby residents’ homes tested positive for hazardous chemical materials, a group of citizens sued the Town of Wheatfield. Their lawsuit alleges that contaminated water from the site — containing arsenic, barium, lead, and mercury — migrated onto adjacent properties and into the sewer system, causing health issues for the residents.
Stories such as these demonstrate the importance of ensuring that hazardous materials are disposed of properly, and the significant problems that can result if proper steps are not taken.
See “DEC Presents Niagara Sanitation Landfill Results,” By David Yarger, Tribune, WNYPapers, April 4, 2019, available at https://www.wnypapers.com/news/article/current/2019/04/04/136591/dec-presents-niagara-sanitation-landfill-results.
In working with municipalities and individuals across the State we have encountered a common concern. Many people believe that Article 10 of the New York State Public Service Law (available here) expressly preempts all local zoning and land-use laws. This concern can lead to a fatalistic attitude and stymie active participation by host municipalities and intervenor parties in Article 10 proceedings. In my personal opinion, that concern is overblown. The interplay between Article 10 and local law is much more nuanced than a case of express supersession.
As a threshold issue, Article 10 does not expressly preempt all local laws—it only expressly preempts local laws that are procedural in nature or that require local permits for the construction of a facility. Unlike procedural laws, Article 10 does not expressly preempt substantive local laws such as height limitations, setback buffers, and zoning district requirements. Instead, the rule is that the Siting Board must apply such substantive laws by default. This procedural/substantive distinction in the law and regulations signals a clear recognition by the State government that a local government’s constitutional power to plan and regulate land-use should not be so easily overridden.
But the story doesn’t end with an easy distinction between procedural and substantive laws. First, the line between what is procedural and what is substantive is often gray and wavering. Second, even if a law is substantive, the Siting Board still has the power “not to apply” the law. This places the burden of proof on an applicant to show why a local law should be overridden, and the burden is both heavy and highly technical.
On April 24, 2019, Excelsior Energy, LLC (a subsidiary of NextEra Energy Resources, LLC), submitted a Public Involvement Program for a proposed solar energy facility to be located in the town of Byron, New York. Additional information about the project is available on the New York DPS DMM website for the project, available here.
As of May 6, 2019, there are no public comments about the project or parties to the proceeding. Only the Applicant’s employees and attorneys have appeared.
The filing of the PIP commenced a 150 day waiting period before the Applicant can proceed to the next step in the Article 10 process: the filing of a Preliminary Scoping Statement. In the interim, staff of the Department of Public Service will review the PIP and provide recommendations on how it could be improved The Applicant may then choose to incorporate or reject the suggested changes.
Unfortunately, the Applicant has already stated that it will not provide critical mailings relating to the availability of intervenor funding to most area residents: “Besides the open house notifications, Excelsior Energy Center does not plan additional broad mailings to area residents that do not register as stakeholders.” It remains to be seen how many residents actually “register” as stakeholders in response to the “general Project information” flyers they will receive. Will Excelsior Energy become yet another project where members of the local community only become aware of a project when it is too late to meaningfully participate in the pre-application phase of the proceeding?
Greene County’s plan to construct a new jail in Coxsackie, New York raises questions about how the proposed project will impact the environment and nearby residents. The project has made news recently as politicians and the public debate the size and cost of the proposed facility.1 According to recent reporting, the jail would take at least three years to complete, and could involve the County taking out a $39 million bond with the United States Department of Agriculture.
Because projects like this must be disclosed in New York State’s Environmental Notice Bulletin (the “ENB”), we now know that the proposal involves the construction of “an 80-bed County Jail facility with associated access roads, parking, and stormwater management areas for a total disturbance area of approximately 21.2 acres.”2 The building itself would include approximately 63,275 square-feet of floor space and, as currently designed, will cause permanent impacts to New York State Wetlands. The project also raises concerns about effects on protected wildlife because the site of the proposed jail is currently occupied habitat for the Short-Eared Owl (which New York State lists as endangered) and the Northern Harrier (which the State lists as threatened).
The proposal may also impact historical or cultural resources. According to the ENB, “the New York State Office of Parks, Recreation and Historic Preservation (“OPRHP”) has determined that the proposed activity will have an impact on registered or eligible archaeological sites or historic structures.” The potential impacts on the environment, historical resources, and nearby residents required the County to prepare a Draft Environmental Impact Statement (“DEIS”) for the proposed project, which is now on file with the Greene County Legislature. Those interested in learning more about the project should review the DEIS. Comments on the DEIS must be submitted in writing no later than May 3, 2019.
See “State approves jail project, recommends more beds,” By Sarah Trafton, Columbia-Greene Media, HudsonValley360, April 1, 2019, available at https://www.hudsonvalley360.com/article/state-approves-jail-project-recommends-more-beds?wallit_nosession=1.
See “Green County Jail Project, Application Identification Number 4-1928-00232/00001,” New York State Department of Environmental Conservation, Environmental Notice Bulletin, April 3, 2019, available at https://www.dec.ny.gov/enb/20190403_reg4.html#419280023200001.
On April 1, 2019, Morris Ridge Solar Energy Center, LLC (a subsidiary of EDF Renewables, Inc.), submitted a Preliminary Scoping Statement (“PSS”) for the proposed 1,350-acre Morris Ridge solar energy facility. Morris Ridge is proposed for the Town of Mount Morris in Livingston County, New York. Additional information about the project is available on the New York DPS DMM website for the project, available here.
Although the Morris Ridge solar project was publicly proposed on July 16, 2018, as of April 10, 2019 only four public comments on the project have been filed: three by local and state politicians who support the project, and one by a person who appears to generally support solar energy. The small number of comments raises concern that many people in the project area are not aware of the proposal. More vocal public opposition or support might be expected when a 1,350-acre facility of any kind is proposed for a rural community.
The United States Environmental Protection Agency (“EPA”) and the Army Corps of Engineers have proposed a new definition of Waters of the United States in an attempt to clarify federal authority under, and applicability of, the Clean Water Act (“CWA”)1. The deadline for submitting public comment on that proposed definition is rapidly approaching on April 15, 2019. A copy of the proposed rule can be found in the federal register2.
Since its inception in 1972, the Clean Water Act has regulated the discharge of pollutants into the “Waters of the United States”, but had not expressly defined the term. Prior to the implementation of the 2015 Rule, the definition of this term had been established by a number of Supreme Court decisions that only created additional uncertainties.
The proposed rule redefining “Waters of the United States”, if implemented in its current form, would replace the 2015 Rule promulgated by the previous administration defining the term, and would likely have the effect of reducing CWA jurisdiction overall.
If you are engaged in any activity that involves waterways or waterbodies that are not clearly navigable by boat, you should take a closer look at this proposed rule to determine how it may impact you. Your comments in support of or in opposition to the newly proposed definition are due by April 15, 2019.
A local recycling company in Wayne County was recently fined $725,000.00 by the New York State Department of Environmental Conservation (the “DEC”) for the illegal handling of electronic waste (“e-waste”)1. This whopping fine consisted of $225,000.00 that was to be payable within two years and an additional $500,000.00 fine that was held in abeyance if the company complies with the consent order entered with NYSDEC.
In August of 2016, the NYSDEC executed a search warrant at the Alpco Recycling facility in Macedon, NY2. Alpco is a local recycling facility known to take recyclable materials such as metals, cardboard, glass, and plastics. The facility was investigated for suspected non-compliance with New York’s Environmental Conservation Laws involving e-waste.
Electronic waste, or e-waste, as defined by New York’s Electronic Equipment Recycling and Reuse law regulates the disposal and handling of items such as computers; computer peripherals; small electronic equipment; small-scale servers; cathode ray tubes; or televisions that have been discarded or are entering the waste collection, recovery, treatment, processing, or recycling system, not including the casing or enclosure in which such item is typically assembled.
E-waste is known to contain toxic substances such as lead, mercury and cadmium, which if improperly handled, can leach into the ground and enter the groundwater.
Alpco lacked the appropriate permit to operate as an e-waste recycling facility, but was receiving e-waste such as old televisions and computer monitors, crushing them onsite and salvaging certain components for recycling.
This case demonstrates the significant, yet unavoidable, risk involved in not obtaining the correct permits or adhering to applicable regulatory program requirements.
See “Alpco fined $225,000 for improper handling of e-waste,” by WHAM, March 31, 2017, available at https://13wham.com/news/local/alpco-fined-225000-for-improper-handling-of-e-waste.
See “Alpco Recycling in hot water with DEC?” by Waynetimes.com, Times of Wayne County, August 20, 2016, available at https://waynetimes.com/news/alpco-recycling-hot-water-dec/
The Coast Guard and the New York State Department of Environmental Conservation (the “DEC”) are investigating tar balls and oil sheen that were found at Coney Island and along Long Island beaches in March, 20191.
According to the Coast Guard, oil found in the Arthur Kill waterway may have come from a containership. Officials said that a 15-inch hole was discovered in one of the ship’s fuel tanks, which may have been the source of the spill. After running a chemical fingerprinting of the recovered oil, Coast Guard personnel verified that the spilled oil came from the leaking containership.
At least 87 people and 16 boats responded to assist in cleanup efforts. Captain Jason Tama, the incident coordinator, reassured the public that “our priorities continue to be the safety of everyone involved including the public and responders, and environmental cleanup.”
In our experience, oil spills can be costly and time-consuming to cleanup, and can have far-reaching and unexpected consequences. Under New York Law, an injured person may bring a claim directly against the person or entity that caused a petroleum discharge for costs associated with cleanup, and may recover both direct and indirect damages, including attorneys’ fees. Thus, oil spills can create serious liabilities. Those who think they may have caused an oil spill, or those who believe that someone else’s oil spill is affecting them or their property, should consult an environmental attorney to evaluate their options.
See “Coast Guard Investigating New York Oil Spill,” By Kirk Moore, WorkBoat, April 1, 2019, available at https://www.workboat.com/news/coastal-inland-waterways/coast-guard-investigating-new-york-containership-oil-spill/.
In January of 2019, three hunters were charged in the Town of Mount Morris when a stray bullet struck a nearby house. Although the residents of the home were inside, nobody was injured. According to the New York State Department of Environmental Conservation (the “DEC”), the hunters could end up losing their hunting privileges for up to five years.1
State DEC officials and the Livingston County Sheriff’s Office investigated the incident, which led to the hunters’ arrest on January 2, 2019.
However, their troubles didn’t end there. The hunters were charged with multiple counts for alleged misconduct that interfered with the investigation. Instead of just being charged with failing to carry tags afield while hunting, they now also face charges for tampering with physical evidence (a felony) and providing a false written statement.
After responding to the initial report, interviewing witnesses, and examining the evidence, investigators determined that the statements provided by the hunters were not credible. Apparently, the hunters attempted to conceal their actions by planting spent shell casings on the ground in an area where the shots did not occur and lying to investigators.
The lesson here may seem obvious at first — don’t lie to investigators or attempt to cover up an accident — but it’s a mistake made all too often. Our experience with government investigations indicates that, when faced with potential liability, lying to or misleading authorities is never the right move. When in doubt, seek qualified legal counsel. They will be able to guide you through an investigation and help you avoid making the same mistakes that the hunters made here.
See “DEC: Hunter accused of firing bullet that struck Mount Morris home could lose license,” By Ben Beagle, Livingston County News, January 9, 2019, available athttps://www.thelcn.com/lcn01/dec-hunter-accused-of-firing-bullet-that-struck-mount-morris-home-could-lose-license-20190109.
On February 26, 2019, a novel procedural teleconference was held in the matter of Canisteo Wind Energy LLC. Canisteo Wind is a nearly 300 megawatt wind project proposed for Steuben County, New York. The DMM website for the case is available here.
The procedural teleconference was a first-of-its-kind in any Article 10 proceeding, and signaled an attempt by Presiding Examiners to address issues related to party status, intervenor funding, and scheduling earlier in the year-long Article 10 adjudication. Moving forward, this firm hopes that all Article 10 cases incorporate an initial teleconference similar to the conference held in Canisteo Wind.
In the future, the process would be further improved if intervenor awards were made verbally during the initial teleconference. By issuing an earlier ruling on party status and intervenor funding, intervenor parties would have additional time to review technical application documents with their attorneys and experts. This would help intervenors crystalize their concerns into litigable (and potentially resolvable) issues.
DEC Commissioner Basil Seggos announced in late 2018 that New York State had executed an Order on Consent with SA Dunn & Company, LLC (“Dunn”), which operates the Dunn Facility (a landfill and sand mine operation), for ongoing violations of its state mining permit1.
The Order was the culmination of a DEC investigation that began in January of 2018, when DEC observed persistent dust clouds emanating from the Dunn facility. Around that time, the Rensselaer County Legislature passed a resolution urging the DEC to increase their monitoring of the Dunn Landfill operations.
As a result of their investigation, DEC determined that “operational deficiencies [at the Dunn facility] were adversely impacting the quality of life in the surrounding community” and promised to take “all necessary measures to ensure this neighborhood is protected [and] to hold this facility accountable.” DEC Commissioner Seggos commented, “New York’s stringent rules and regulations governing mining operations exist to ensure facilities operating in our state adhere to the safest practices and highest standards possible to protect public health and the environment.”
The order assessed a $100,000 penalty against the Dunn Facility, required it to (1) develop and implement a dust control plan and (2) undertake several improvements to achieve significant dust reduction, and imposed a $225,000.00 Environmental Benefit Project primarily for the benefit of the Rensselear City School District and local community. Failure to comply with the Consent Order could lead to additional fines and even the revocation of the Facility’s permits.
Our experience with government investigations and the DEC indicates that an operator’s noncompliance with environmental laws or permit conditions can become a significant liability. This case demonstrates that obtaining a DEC permit does not end a facility’s obligations — they must still comply with applicable laws, regulations, and the conditions of their permit(s). In fact, permits often come with several conditions, the violation of which can result in fines or even permit revocation, which can be extremely costly to operators.
To avoid these potential risks and liability, operators should assiduously ensure that their facilities are in strict compliance. Host Municipalities, and those who live nearby such facilities, may do their part by reporting suspected violations to the governing federal, state, or local agencies for investigation and enforcement.
See “Landfill Operator in Rensselaer fined by DEC,” By Nicholas Buonanno, The Record, August 30, 2018, available at https://www.troyrecord.com/news/landfill-operator-in-rensselaer-fined-by-dec/article_37a8c768-fed1-5bd6-a9a5-88598be95045.html
On February 27, 2019, Invenergy Solar Project Development LLC submitted a revised Public Involvement Plan (“PIP”) for the proposed 3,800 acre Horseshoe Solar energy facility. Horseshoe Solar is proposed for the towns of Caledonia and Rush, primarily in Livingston County, New York.
Although the Horseshoe Solar project was publicly proposed on October 5, 2018, as of March 19, 2019 only one public comment on the project has been filed. This raises a concern that many people in the project area may not be aware of the proposal. More vocal public opposition or support might be expected when a 3,800 acre facility of any kind is proposed for a rural community.
Our experience in other Article 10 proceedings around New York indicates that virtually all PIP’s fail to provide the public with adequate notice of a project, particularly during the pre-application phase. PIP’s also often fail to educate the public about opportunities to participate in the Article 10 siting process. Such opportunities include the ability to request intervenor funding, attend stipulation negotiations, or provide comment and testimony during the adjudication phase. The lack of an effective PIP enforcement mechanism is a structural deficiency in the Article 10 and can lead to a lack of early and meaningful public participation in the process.
On February 27, 2019, Invenergy Solar Project Development LLC submitted a revised Public Involvement Plan (“PIP”) for the proposed 3,800 acre Horseshoe Solar energy facility. Horseshoe Solar is proposed for the towns of Caledonia and Rush, primarily in Livingston County, New York. The project also includes a major electrical substation in Rush. Additional information about the project can be found on the DMM website for its associated Article 10 proceeding, available here. A map of the facility is available on the official Horseshoe Solar website here.
The filing of the revised PIP is significant because it starts a 150-day period during which the Applicant is supposed to consult with the public, host towns, and state agencies about the project and potential impacts. After the consultation period ends, the Applicant can proceed to the next stage of the Article 10 review process by filing a Preliminary Scoping Statement (“PSS”).
On February 8, 2019, Galloo Island LLC withdrew its Article 10 Application for the 102.3 megawatt “Galloo Island Wind Farm”. Additional information about this proceeding, and the circumstances of the Applicant’s withdrawal, are available on the DMM website for Galloo Island.
The withdrawal comes after repeated delays in the Article 10 proceeding and after intervenor parties raised concerns over the developer’s “character” as an applicant. The Presiding Examiners noted, “[m]ore importantly, the question of Galloo’s compliance with [Code of Conduct] obligations is relevant to Galloo’s character and fitness, an issue open for the parties to raise and the examiners and Siting Board to review in an Article 10 proceeding.” Case 15-F-0327, Second ruling on Discovery Objections, p. 6 (available here).
Any party to an Article 10 proceeding, whether for or against a specific project, should review the Galloo Island docket.
The Town of Carmel’s “decision to dump mounds of asphalt millings eight feet high near the … shore [of Lake Mahopac]” sparked an Investigation by the New York State Department of Environmental Conservation (the “DEC”)1. That’s because a January 2019 DEC ruling prohibited the use of asphalt milling as fill in the state of New York. The Town brought the millings to the lakeside property “to fill in the low spots” and to raise the level of the land, which often floods.
However, asphalt millings contain compounds that have caused cancer in laboratory animals. So when it rains, stormwater may carry those compounds into local water bodies and beyond, potentially causing contamination and negative environmental or health impacts. This is especially concerning to Town residents, environmentalists, and the DEC because Lake Mahopac provides drinking water for about 450 households.
Here, the Town’s seemingly innocuous decision about where to store excess asphalt millings from road resurfacing jobs may now lead to a costly investigation, expansive remediation, fine, or even litigation. Handling government investigations can be complex, but the right knowledge and experience can help mitigate the damage. That’s because some problems can be avoided when you know where to look and can see issues coming. Whether it’s a local municipality, a small business, a homeowner, or a developer, seeking advice early can be critical to identifying, avoiding, or mitigating environmental liability, and to responding to government investigations when they arise.
See “Lake Mahopac Park Project Faces State Environmental Investigation, reveals local ties,” by David McKay Wilson, Rockland/Westchester Journal News, Feb. 8, 2019, available at https://www.lohud.com/story/money/personal-finance/taxes/david-mckay-wilson/2019/02/08/lake-mahopac-park-dec-probe/2794088002/
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