Impact of New York’s Renewable Energy Permitting Program, PFAS Regulation
Oct. 26, 2020, 4:00 AM
New York state is currently making major changes to its environmental laws and regulations on three different fronts: climate change, renewable energy, and emerging contaminants. Each such change is newsworthy in its own right, but when considered together these three initiatives amount to a seismic shift in the state’s regulatory landscape. The effects of these changes will be felt in nearly every major industry, including electricity production, transportation (public and private), and real estate development.
The second in a two-part series, this article explores the new renewable energy permitting program and per- and polyfluoroalkyl substances (PFAS) regulation.
New Permitting Program for Renewable Energy Facilities
To ensure that new renewable energy projects can be built quickly enough to meet the requirements of the Climate Leadership Community Protection Act (CLCPA), the state recently enacted the Accelerated Renewable Energy Growth and Community Benefit Act (commonly called the Siting Law), which creates a new regime for permitting large-scale renewable energy projects (wind and solar projects that are 25 megawatts or larger). The program is expected to significantly accelerate the permitting process, particularly for projects sited on brownfields, landfills, and former commercial or industrial sites.
Under this program, a new Office of Renewable Energy Siting (ORES) within the Department of Economic Development will issue siting permits authorizing the construction of large-scale renewable energy projects. ORES is establishing uniform standards for the siting, design, construction, and operation for categories of projects, eliminating the need to establish specific standards for each individual project. Project-specific standards will be approved where the impacts cannot be addressed by the uniform standards. ORES may elect not to apply local laws that it determines would be unreasonably burdensome in view of CLCPA targets. When making such decisions, ORES must consider the project’s environmental benefits and the CLCPA’s renewable energy targets.
Aggressive timelines require ORES to grant or deny a permit within one year of receiving a complete application. For projects on certain existing or abandoned commercial properties (including brownfields, landfills, former commercial or industrial sites), ORES’s decision must be made even faster—within six months.
Regulations to implement the program must be promulgated by April 2021. Draft regulations were issued on Sept. 16, and are open for public comment. Additionally, the state scheduled seven public hearings to solicit additional input. A flurry of activity is expected during this critical time as developers, municipalities, and environmental advocates parse through the regulations and lobby for changes before the final regulations become effective.
In New York and across the country, legislation and regulation are evolving in response to PFAS, which are toxic, persistent, and bioaccumulative “forever chemicals” linked to cancer and other health issues. Thousands of PFAS compounds exist, but the focus has been on two compounds common in everyday products: perfluorooctane sulfonic acid (PFOS) used in firefighting foams; and perfluorooctanoic acid (PFOA) used in nonstick cookware, stain- and water-repellent fabric, food packaging, and more. From widespread use, PFAS is now frequently found in soil, landfills, and water, including drinking water.
Over the last two years, the state has been actively responding to the discovery of these chemicals in the environment. New York approved the strictest drinking water maximum contaminant levels in the country (10 parts per trillion for PFOA and PFOS) and committed hundreds of millions of dollars for PFAS firefighting foam disposal and PFAS-targeted water infrastructure improvements. It became the first state to regulate PFOS and PFOA as hazardous substances, and requires sampling for these compounds at active remediation sites.
New York’s focus on PFAS is expected to continue. Cleanup sites in New York remediation programs already must include investigation and remediation of PFAS in soil, groundwater, surface water, and sediment. The state will soon establish applicable cleanup levels with the opportunity for public comment. Due to the ubiquitous nature of PFAS in the environment (they can be found almost anywhere someone looks for them), and the extremely low cleanup levels expected to be established, PFAS investigation and remediation is expected to become a driver of new, and costly, soil and groundwater remediation projects.
With such investigation and remediation projects becoming commonplace in the next few years, more companies will have to manage the significant liabilities PFAS remediation will generate. Businesses will also need to anticipate the risks associated with historic PFAS handling and disposal practices, and properly allocate those risks in real estate, bank finance, and M&A transactions.
Overall, along with the CLCPA, the new Siting Law and the expected PFAS regulations fundamentally change long-standing environmental paradigms in New York state. The flurry of regulations expected from Albany in the next few years will usher in a new era of environmental regulation quite different from today. Those well prepared for the transition will be positioned to prosper from it, while those who are not will fall behind or find their business plans or goals outdated or not fully achievable. Businesses expected to be affected by these changes should, at minimum, take measures to monitor these critical developments on a regular basis, and, where appropriate, actively comment on proposed regulations.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
New Hampshire is the latest state to file suit against a number of companies, including Dupont and 3M, for their roles in a nationwide drinking water contamination crisis. The lawsuit claims that the polluted water is the result of the manufacture and use of perfluorinated chemicals, a group of more than 4,000 compounds collectively known as PFAS.
The suit in New Hampshire, announced on Wednesday (May 29), joins several other class-action and state lawsuits throughout the country.
The complaints alleges that the companies “failed to warn of the dangers of their products.” They also claim that the companies knew that releasing the compounds into the environment “would make groundwater and surface water unfit for drinking.”
PFAS are used to manufacture a wide variety of products, especially anything meant to make surfaces non-stick or heat resistant. They’ve been used to make clothing and shoes waterproof for decades (Gore-Tex, for example, has promised to remove all perflourinated compounds from their gear by 2023—they are referred to as PFCs on Gore-Tex’s website.) The most widely-known compound of the group is PFOA, a perfluorinated compound that is used to make Dupont’s Teflon non-stick pan coating.
Another of these compounds is known as PFOS, and is the main ingredient in widely used firefighting foam, which has lead to widespread contamination around military bases, airports, and firefighter training facilities. The Pentagon has found PFOS in the groundwater or drinking water at 126 military bases so far.
To understand what’s happening here, one has to understand the magnitude of the problem. Over the last decade, many US states—and countries around the world—have slowly realized they have a massive water contamination problem on their hands. PFAS were, and in some cases continue to be, widely used chemicals that do not degrade in the environment, and the health effects of exposure to elevated levels of it are just beginning to be understood.
PFAS are now detectable at low levels in the blood of virtually everyone. The US Centers for Disease Control and Prevention found PFOA in the blood of nearly every person they tested. In the United States, PFAS contaminates the drinking water of about 19 million people in 43 states.
Firefighting foam is the focus of the New Hampshire lawsuit, which cites groundwater contamination near the Pease Air Force base, and at several fire stations throughout the state.
The lawsuit names 3M, DuPont, the Chemours Company, Chemguard Inc., and a number of firefighting foam retailers at fault for endangering public welfare through their products.
New Hampshire joins a growing list of litigants. New York and New Jersey have ongoing lawsuits against 3M, Dupont and other companies who manufactured and used PFAS compounds. In 2017, DuPont and its spinoff, Chemours, settled a suit with some 3,500 residents in Ohio and West Virginia, agreeing to pay $671 million for polluting an area around a manufacturing plant in Parkersburg, West Virginia.
Class-action suits comprised of individuals exposed to PFAS-contaminated water have cropped up in Colorado, Michigan, New York, and Pennsylvania. A nationwide claim was filed last year. In 2018, North Carolina settled its lawsuit for $13 million and a requirement that Chemours provide “permanent replacement drinking water supplies” for residents whose wells were contaminated.
This post has been updated to clarify Gore-Tex’s perflourinated compound phase-out: The company eliminated PFOA from its gear in 2013. It has promised to phase out other perflourinated compounds “of environmental concern” from its gear by 2023.
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