New York City Issues Rule to Phase Out Dirty Heating Oil

Environmental Law


Pursuant to its duty to preserve, protect, and improve the air resources of the City of New York, and in connection with PlaNYC’s Initiative 8 to promote the use of cleaner-burning heating fuels, the City of New York has issued a new rule that will phase out the use of No.6 heating oil in buildings. The new rule will amend Chapter 2 of Title 15 of the Rules of the City of New York to eliminate the use of No. 6 heating oil in over 10,000 of the City’s buildings. As the dirtiest type of oil when burned, No. 6 releases Particulate Matter (PM) and Nitrogen Oxides (NOx) into the air, causing negative health effects including asthma, decreased lung function, and other respiratory symptoms.

Under the new rule, by 2015, existing boilers using No. 6 oil must switch to a low-sulfur version of the No. 4 heating oil or to an equivalent cleaner fuel such as No. 2 heating oil or natural gas, unless the owner demonstrates that the PM and NOx emissions of the No. 6 oil meets the standards of the rule. Newly installed boilers are required under the rule to use only No. 2 oil or natural gas. Complete phase out of heating oil No. 6 and No. 4 will occur in 2030, at which time all boilers must use No. 2 heating oil or natural gas. Fully implemented, this new rule is expected to reduce the amount of fine particles emitted as a result of heating buildings by at least 63% and help in the City’s goal of reducing greenhouse gas emissions 30 percent by 2030.

For more information on heating oil regulations and fuel storage issues, please contact Miriam Villani or Jason Kaplan.

Posted by Miriam Villani

NYSDEC Issues Warning Regarding “Free Clean Fill”

Environmental Law


The New York State Department of Environmental Conservation (“NYSDEC”) issued a warning to Long Island’s residents and businesses to be wary of offers of “free clean fill.” Six Long Island homeowners have reported that the fill they received was in fact illegal solid waste. This report comes from an investigation by the multi-agency Solid Waste Task Force, which was created this past year to combat illegal dumping on Long Island.

NYSDEC defines “clean fill” as material consisting of concrete, steel, wood, sand, dirt, soil, glass, construction and demolition debris, and other recognizable inert material designated by the Department. The term “fill” is typically used to describe material comprised of these materials excavated from a site and then offered to others to be used to grade or level their property. However, fill can be contaminated with petroleum products, volatile organic compounds, or other hazardous materials. Using contaminated fill at a property can have costly consequences. NYSDEC Regional Director Peter Scully stated that “[o]nce offensive or contaminated soil is placed on a property and graded, the process of forcing removal becomes costly and difficult.” Separate and apart from the cost to clean up the contaminated fill, allowing the contaminated materials to be dumped on a property could open homeowners up to costly legal liabilities.

Legal liability is an unfortunate, but likely possibility if contaminated fill impacts surrounding properties. Should contaminated fill leach hazardous substances into the soil and groundwater and spread to neighboring properties, those neighboring property owners would have several causes of action to recover for property damage. Such damages would include, but not be limited to, the costs of cleanup and any other direct or indirect damages. They would also include any personal injury resulting from the exposure. If the fill was contaminated with petroleum products, the New York Navigation Law applies. An owner of a property from which petroleum contamination has emanated is strictly liable, without regard to fault, for all cleanup and removal costs and all direct and indirect damages.

Homeowners must be vigilant and protect themselves from being victimized. If suitable fill for leveling or grading is sought, the NYSDEC recommends contacting the Regional Materials Management Division. Additionally, notify the NYSDEC Regional Office and the local town clerk in writing, in accordance with the regulation set forth at 6 NYCRR Part 360-8.6(b), at least 30 days prior to undertaking any grade adjustment project. Ensure that the contractor is licensed by a government authority. Furthermore, ask questions about the source of the fill and whether the property from which it was taken was ever contaminated.

For more information on solid and hazardous waste and other environmental and land use issues, please contact Miriam Villani or Jason Kaplan.

Posted by Miriam Villani

EPA to Set Limits on Perchlorate in Drinking Water

Environmental Law


For the first time, the United States Environmental Protection Agency (“USEPA”) is preparing to regulate the chemical perchlorate in drinking water, and is focusing on the potential deleterious effects it may have on the next generation. Perchlorate will be regulated under the Safe Drinking Water Act (“SDWA”) which currently regulates approximately 70 organic and inorganic chemicals in drinking water. However, what is novel about the regulation of perchlorate is that the chemical is being regulated to protect future generations. Scientific research indicates that perchlorate can affect the thyroid and hinder the development of fetuses and infants. Perchlorate is both a natural and man-made chemical and can be found in such products as fireworks, road flares, bleach, and some fertilizers.

USEPA Administrator Linda Jackson said the USEPA will set limits on perchlorate and other toxic chemicals in drinking water. While some states already have limits on perchlorate in drinking water, this rule will provide a national standard.

The USEPA is considering the regulation of an additional 16 other toxic chemicals that may cause cancer as part of it’s Drinking Water Strategy. The Natural Resources Defense Council has pushed for this regulation for a decade and supports the move. “EPA’s decision to regulate perchlorate will not only protect our health, but reverse bad public policy that has put us at risk for years.”

USEPA is drafting a formal rule which it will publish for public comment.

For more information on drinking water regulations and toxic chemicals, please contact Miriam Villani or Jason Kaplan.

Posted by Miriam Villani

Investigation into the Severity of Pollution at Gowanus Canal

Environmental Law


In February, the United States Environmental Protection Agency (“USEPA”) released the results of a year-long investigation into the severity of contamination at the Gowanus Canal in Brooklyn, New York. The Brooklyn waterway was named a Superfund Site in 2010. The USEPA study confirmed the severe extent of pollution at the Gowanus Canal, which poses a significant threat to public health, especially to those who eat fish from the Canal or have repeated contact with its water and sediments.

Cleanup of the Canal will begin in 2015 and last approximately 10 years. The cleanup cost is estimated at $300 million to $500 million and will be paid by the polluters. Oil refineries, chemical plants, tanneries, manufactured gas plants, and other heavy industry that have lined the banks of the Gowanus Canal contributed more than a dozen contaminants, including polychlorinated biphenyls (PCBs), polycyclic aromatic hydrocarbons (PAHs), and various metals, including mercury, lead, and copper. Additionally, uncontrolled discharges of sewage and stormwater continue to contaminate the Canal.

The next step in the future cleanup of the Gowanus Canal is USEPA’s commencement of a feasibility study. This investigation will help the USEPA assess the options for addressing the contamination in the Canal. USEPA continues to monitor the Canal, sampling groundwater and soil along the banks to determine other possible sources of contamination from properties abutting the canal. The USEPA presented its findings of the remedial investigation on February 23, 2011, in Brooklyn.

For more information on the Gowanus Canal Superfund Site and other issues concerning land and water contamination, please contact Miriam Villani or Jason Kaplan.

Posted by Miriam Villani