Overview of EPA, Region 2 Biennial Conference at Columbia University on May 21, 2010

Overview of EPA, Region 2 Biennial Conference at Columbia University on May 21, 2010

   By John Nevius, Shareholder, Anderson Kill & Olick P.C.

The following is a summary overview of parts of the U.S. EPA, Region 2 Biennial Conference at Columbia University which was held on Friday, May 21, 2010:

Marcellous Shale:  property values in the southern third of NY state underlain by the shale are skyrocketing, but many municipalities lack the necessary infrastructure to deal with drilling waste water. Equivalent activity in PA shows that 100,000s of gallons of water are necessary to create the pressure needed to "frac" or fracture the shale formation at depth in order to extract petroleum. Estimates are uncertain, but the reserves available provide about 400 times the annual demand of NYC.

Infrastructure:  the federal government's efforts have been "in the basement" in terms of watershed protections and other efforts to protect drinking water supplies. This has resulted in NY suing EPA. EPA, however, has recently turned around (under the new federal Administration) and issued new detailed guidelines which were well received by NY officials charged with protecting state water quality.

*Note:  if NYC spent as much as Oswego in bringing the City up to codes in terms of separating sewer flow from storm water run-off, the cost would apparently be on the order of $700M.  Unfunded federal mandates involving this drainage separation issue and others were bemoaned across the board.

Superfund:  NPL (National Priorities List) site listing is up (a prelude to clean-up). Statistics show the easy sites have been addressed and big, complex sites such as the Hudson and Passaic Rivers, the Gowanus Canal and Lake Onandaga are the rule. These complex sites take longer to address. There is a federal effort to speed up CERCLA negotiations which have ballooned of late to almost a year on average. Approximately one quarter of the new NPL listings are in the NY/NJ area.

Federal Resources:  the NY area has been "dissed" in terms of water resource protection. The Hudson Estuary garnered only about $80M in funds while the program for the Chesapeake Bay exceeds $400M. NY still wins, however, as it has about 14% of the Chesapeake watershed, including portions of the Susquehanna River.

Clean Water Act Enforcement: remains messy at the federal level because of the plurality decision in the Rapanos case and the numerous split Circuit applications of various standards to what are "waters of the United States."  Justice Kennedy's separate opinion joining 4 others who sided with justice Scalia and the Circuit splits make this issue ripe for further S. Ct. clarification.

Superfund Liability Allocation:  the District Court's allocation math was allowed to stand recently by the S. Ct. in the Burlington RR case.  This despite the fact that the district judge used a complicated calculation based on waste volume and percentage of areal and chronological ownership. Unfortunately, the math never comes out to 100% because no one seems to have caught onto the fact that when fractions are multiplied, this simply works to make the numbers smaller . . .  This issue is very much in flux and the subject of intense debate.

Financial Assurance:  a recent Sierra Club lawsuit has forced the EPA to come out with regulations on this issue under CERCLA Section 108(b) within the next two years. This could be incredibly burdensome in terms of requiring bonding against future estimated clean-up obligations which bonding would tie up a huge amount of resources.

E-Waste:  there is a new e-waste law dealing with special waste from new electronics and computer technology.