Gotham Gazette

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Citizens Union


Council Wants City to Prepare for Extreme Weather of Climate Change


NEW YORK — For Sabrina Terry, the Sunset Park neighborhood where she works is at the front line of climate change.

The community along the Brooklyn waterfront is home to waste transfer stations, power plants, industrial facilities and tens of thousands of mostly low-wage immigrants. Devastating storm surges expected to be brought on by radically altered weather could flood the area and create a toxic brew.

“If you have a storm, who knows what is being washed up into the community? It’s not just the water — it’s what is being carried,” said Terry, an environmental justice planner who works for Uprose, a community-based organization.

Terry and her group have been vocal about their belief that the city wasn’t preparing sufficiently for the impact that climate change would have on coastal communities already struggling with environmental problems.

The City Council took steps to address those concerns yesterday, voting in favor of a bill that would enlarge the scope of a climate change panel and task force to focus on populations that are especially vulnerable to extreme weather events — such as the elderly, children and the poor. The legislation also makes the panel and task force permanent.

Council Speaker Christine Quinn said the point was to make sure that the city was thinking as broadly as possible.

“When you have severe weather circumstances and, say you need to evacuate people, it’s obviously more challenging at times to evacuate seniors, disabled New Yorkers,” she said in remarks to the press before their only full-council meeting in August. “If you don’t have a plan for that, it is going to be doubly hard.”

Councilman James Gennaro, who drafted the bill, said that when the city’s panel on climate change was created by Mayor Michael Bloomberg’s office in 2008, it was directed to focus its work on protecting critical infrastructure. “We feel it’s important to protect people, too,” he said.

The city launched PlaNYC in 2007, an ongoing sustainability planning effort involving 25 city agencies to prepare for population increase, strengthen the local economy and combat climate change. The city has also moved to reduce carbon emissions generated by government and by commercial and residential activity.

The mayor’s office was supportive of the council's measure. “It is building into law what we are doing,” said Bloomberg spokeswoman Lauren Passalacqua. “This is now a fixture of how the city thinks and operates.”

Terry praised the council for acknowledging the feedback from the environmental justice community. “In this new draft of the bill, they do acknowledge local leadership to ensure that this message gets out to the people who really need it,” she said.

Paul Gallay, president of Hudson Riverkeeper, called the legislation “groundbreaking.”

“This is an effort to get on top of the biggest challenge the city may face in coming years, and to be inclusive about it,” he said.

In remarks made at an environmental protection committee meeting Tuesday, Gennaro said that, if passed, it would be the first time a municipality in the U.S. had decided to codify climate change preparation measures within city law. That claim could not be verified by press time.

Maintaining and overseeing public health, natural systems such as wetlands and waterways, the city’s critical infrastructure and overall building stock, and the health of the local economy will be the focus of climate-change planning and adaptation efforts, according to the legislation.

The two bodies that the bill will make permanent, the New York City Panel on Climate Change and the Climate Change Adaptation Task Force, work together to forecast and plan for climate change within the five boroughs.

Gennaro explained that the adaptation task force functions as “the boots on the ground,” employing the analysis developed by the panel’s scientific experts. The task force will be responsible for planning and implementing “hard strategies,” such as a network of storm surge barriers; “green strategies,” including marsh restoration; and “soft strategies” — zoning, for example.

The task force is comprised mainly of relevant city agencies, but will also include public members "not limited to representatives from organizations in the health care, communications, energy and transportation fields,” according to the legislation.  

In 2010, the panel — made up of climate scientists and academics, along with legal, insurance and risk management experts from the private sector appointed by the mayor — released what was described as the first official climate change projections for the city.

According to the report, the city’s vulnerability to progressive sea level rise and the flooding of low-lying neighborhoods and infrastructure is a key challenge. Intensified storms could also cause more inland flooding. At the same time, heat waves are likely to occur more frequently and for longer periods; severe droughts are also projected.

The bill codifies one part of a two-pillar strategy to tackle climate change. Earlier legislation dealt with how the city can reduce its carbon emissions.

If the legislation becomes law, both the panel and the task force will be required to meet at least twice a year. The panel is required to release new climate change projections within one year of the release of climate data by the U.N.’s intergovernmental panel on climate change, and once every three years at minimum. The task force is required to create an inventory of potential risks and identify issues for further study within one year of new projections.

All reports are to be made available to the public and both bodies are to coordinate with the mayor’s Office of Long-Term Planning and Sustainability on developing borough and community-level communications strategies.

“It’s important to think reasonably about the impacts which are coming,” Gennaro said in an interview. “We are a coastal city.”

State Senator Calls for Gov to Meet with Fracking Critics


State. Sen. Tony Avella at an anti-fracking rally in June 2011. Photo by Adrian Kinloch, used under a Creative Commons license.

NEW YORK – State Sen. Tony Avella has called on Gov. Andrew Cuomo to meet with legislators, public health researchers and the director of the Oscar-nominated documentary “Gasland” to discuss the negative impacts of hydraulic fracturing.

"The gas and oil industry has already been readily engaged in the process of review and information sharing," he said in a letter sent to the governor yesterday. "It is now time to expand that review … to include numerous medical professionals, scientists and environmentalist[s] who have repeatedly stated their willingness to engage."

At a forum on Wednesday, Avella said he thought the governor and the state’s environmental regulatory agency are "moving rather quickly” on a decision to allow the controversial form of natural gas drilling - also known as fracking – in New York.

Avella’s challenge to Cuomo came during Wednesday’s hearing held by Democrats on the state’s environmental conservation committee in Manhattan, where dozens of opponents of fracking gathered to voice their concerns. They heard testimony from public health researchers, economists and natural gas experts.
The plan proposed by Cuomo and detailed in a Department of Environmental Conservation environmental impact statement would allow natural gas companies to drill within five southwest counties in upstate New York at the deepest core of the Marcellus shale rock formations.
In hydraulic fracturing sand, chemicals and water are injected to extract natural gas. The process has raised concerns over contamination of groundwater and the city’s watershed.
At the forum yesterday, Elaine Hill, a doctoral student from Cornell University studying the effects of unconventional natural gas development in Pennsylvania, Colorado and Texas claimed newborn babies within a close proximity to fracking wells could be subject to a significant decrease in birthweight.
Many anti-fracking environmental advocates and public health researchers present at the forum called for the DEC to accept an independent health and seismological assessment of the drilling process, saying the studies should be both peer-reviewed and separate from the natural gas company-funded studies.
Pepacton Institute economist Jannette M. Barth noted the ad-valorem tax, which measures gas value over time, may not start until 5 years of drilling – while surrounding communities incur immediate costs of production without any source of revenue.
Barth disputed a gas industry-funded study claiming 70,000 new jobs would be created through fracking in New York.
She said this will be “a boom and bust cycle” of short-term, out of state workers.

“They may work for two weeks at a time, while sending wages to home states helping those economies, but jobs are gone once the rig moves to another state,” Barth said
Attorney Elisabeth Radow noted that Nationwide Mutual Insurance Co., will not renew insurance on homes leased to fracking. She said with contamination of water and air quality “mortgages and home values would plummet.”
Chris Northrop, an oil and gas investor in Texas and New Mexico for 30 years, testified against the DEC being able to issue permits to natural gas companies and manage environmental requirements.
“There should be an autonomous environmental oversight,” he said.  

In the forum Avella said this is a “conflict of interest” after Senate Democrats accused the DEC of sharing information with drilling companies months before the public got to see the process.

In a NY1 report, the governor was asked to comment on the issue at a public event in upstate Utica.

"They should be talking to the industry," he said. "They should be talking to supporters. They should be talking to opponents. They should be talking to people in Pennsylvania. They should be talking to everyone. This decision should not be made in secret," he said.

In January, Avella along with two other state senators, introduced legislation to regulate fracking. One measure called for banning fracking in New York, while another called for treating contaminated water under hazardous waste regulations if fracking were to be permitted.
“Since there’s a Republican majority, the bills didn’t go anywhere,” said Avella spokesman Xavier San Miguel.  
Independent Oil and Gas Association of New York spokeswoman Cherie Messore noted that this new plan to start fracking has “huge economic benefits”
She said wells had already been successfully fractured. The governor’s plan would allow workers to “drill laterally into tight porous shale formations” that were previously “not accessible for the past ten or twelve years,” she said.  
She defended the natural gas industry as being “established for 60 years” in the U.S. and having an “absolute stellar record” with “no dangerous groundwater contamination.”
Messore also said the technology practiced is proven and safe. Commenting on lateral hydraulic drilling, she said: “In other parts of the U.S., this is a standard practice.”
James Smith, another spokesman for the IOGANY, said Wednesday’s forum was “more of a rally than an educational session.” He did not attend.  

Josh Fox, the director of “Gasland,” presented an emergency short film “The Sky is Pink” during the forum. He said that “over a thirty-year period half of all gas wells will fail” due to cement well case leakages, according to a study titled “Why Gas Wells Leak?” done by Schlumberger, the world’s largest oil services company.
But Smith said cement case leaks “happens naturally” and are not caused by drilling. He said that, in New York, seven layers of cement and steel well casings are made to protect fluid in the well pipes.
But he acknowledged that “the process isn’t foolproof” but added that there was a payoff for landowners who agree to drilling. He said they “will have wealth they never had before to keep their farms going.”

Koch, once courted by Indian Point operator to be pitchman, explains opposition to nuclear plant


Mayor Ed Koch at City Hall, date unknown. Photo from Flickr, courtesy Kheel Center, Cornell University.

Editor's Note: A previous version of this story incorrectly referred to the findings of a draft report based on data from the New York Independent System Operator.

NEW YORK – For former Mayor Ed Koch, the turning point in his thinking about nuclear power came in March 2011 after the radioactive cataclysm in Japan caused by a crushing tsunami.  

“It was incredible how the Japanese government changed its warnings from day to day,” Koch said of the response to the multiple meltdowns at the Fukushima Daiichi plant that became the worst nuclear disaster since the 1986 explosion at Chernobyl.  

“It was clear to me that the owners of the facility were lying. The Japanese government lied at times as well. I thought to myself, what's the sense of all of this? When I put all that together I said, the hell with it. I said, why are we tempting fate? Germany will eliminate all nuclear power, and that's what we should do,” Koch told the Gotham Gazette in a recent interview.  

Koch has joined a growing chorus of environmental advocates and politicians calling for Indian Point Energy Center in Westchester County to be shut down, saying the aging nuclear plant poses a danger to the 8 million people who live 24 miles to the south in New York City – especially in the wake of what was learned from the Fukushima disaster.

“We know there is no possibility of evacuating New York City,” he said. “There is no evacuation plan.”

Koch said he had been aware of the problem when he was mayor, but did nothing about it. “I thought, ‘It's not my problem. It's the governor's problem and the federal government's problem.’ I should have said it was my problem. I did nothing to address it at the time. I should have.”

Koch’s turnabout on nuclear power surprised some people, not the least of whom were officials at Entergy Corp., the owner of the Indian Point nuclear plant.

The company, which has applied to the U.S. Nuclear Regulatory Commission to extend its operating license for another 20 years, said it had approached Koch two years ago asking him to be pitchman for its coolant system. Koch confirmed that he had been approached by the company.

“I said if I were to do it, they would have to provide scientific opinions that the alternative method was acceptable scientifically and would do the job, to which they agreed,” Koch told the Gazette in an email.

“At that time, I was in support of the use of nuclear energy. Fukushima had not yet occurred. However, after thinking about the offer, I turned it down because I thought it would have an adverse impact on my pro bono efforts to get support for the campaign to have the legislature accept impartial redistricting,” he continued, referring to his fight for an independent redistricting commission. “When I called to say I wouldn’t do it, I was offered $150,000. I said no, I wouldn’t do it no matter what the pay.”

Entergy, through a spokesman, denied they offered him money, instead saying it was the former mayor who brought up the subject of payment. Both Entergy and Koch confirmed, however, that the former mayor ultimately declined to promote the facility.

In a June 13 column in The Huffington Post, written with Hudson Riverkeeper president Paul Gallay, Koch noted that one of Indian Point’s two reactors faces the highest risk of damage due to an earthquake of any nuclear facility in the U.S.

The claim was first reported in 2011 by MSNBC after an analysis of NRC data -- but was later disputed by the agency itself. "Nuclear power is a complicated, technical subject, and we naturally try to simplify it to make it understandable to the general public. Sometimes, however, simplification leads to misunderstanding, and misunderstanding causes fear," wrote NRC spokesman Eliot Brenner on the agency's website. The NRC, he said, does not rank nuclear plants according to seismic risk. 

Koch and Gallay also cited a 2008 study by scientists at Columbia University’s Lamont-Doherty Earth Observatory that confirmed that Indian Point sits “astride the intersection” of two active seismic zones.

Koch and Gallay also point out in their article that the plant’s fire safety plan does not meet minimum federal standards.

Entergy disputes these claims. Indian Point spokesman Jim Steets said the analysis conducted by Lamont-Doherty “is not fact-based. They have expressed opinions. We are prepared to withstand an earthquake 100 times greater than what would have been experienced in the Indian Point area.”

But he also added: “There is some evidence that earthquakes (in the area) could be stronger. We are looking into that.”

Steets said the cooling system for the Daiichi plant’s reactors was damaged by the tsunami, not by the earthquake that preceded it. But the results of an independent investigation commissioned by the Japanese parliament say otherwise.

“A conclusion denying quake damage cannot be drawn,” said the report released last week. “The recorded seismic motion at Fukushima Daiichi exceeded the assumption of the new guideline. It is clear that appropriate anti-seismic reinforcements were not in place at the time of the March 11 earthquake.”

As for the plant’s fire plan, Steets replied: “The issue has been resolved to NRC’s satisfaction. A lot of the remedies have been completed; others are being engineered and resolved.”

But it is Entergy’s evacuation plan for the area around Indian Point, in the case of an accident, that particularly resonates with the former mayor. The company confirmed that the plant’s “emergency planning zone” encompasses the 10-mile area around Indian Point and makes no provision for New York City.  

But Steets said the flooding that destroyed the Daiichi plant’s reactors was impossible at Indian Point’s location, and that the design of the plant negated the possibility of a massive explosion, such as the one at Chernobyl.

These factors would give the city time to mobilize in the event of an accident, he said.  “An emergency that necessitated a massive evacuation would not occur instantaneously,” Steets said.

The city’s Office of Emergency Management has designed an “area evacuation plan” that could be used in the event of a nuclear accident, a spokeswoman said. The plan is currently designed to evacuate one neighborhood or swaths of the city in coordination with transit agencies.

But OEM spokeswoman Judith Kane said it could be used to evacuate the whole city “in theory,” though she said it was “hard to imagine” such a scenario. She said that in the case of a nuclear emergency, the city would likely rely on plume modeling to track the spread of radiation and make decisions.

The disaster in Fukushima, she said, encouraged the agency to coordinate more closely with its counterpart in Westchester County. “It's inevitable with any disaster,” she said. “When something happens in another part of the world, it always raises the question, what would happen in New York City? Is this good enough? Does it cover the worst case scenario?"

After the disaster in Fukushima, a 12-mile exclusion zone was established around the Daiichi plant and approximately 170,000 residents were evacuated. Persons living 12 to 24 miles from the plant were first asked to remain indoors, and then evacuations were initiated for these areas as well.

Koch said that if he were in the current mayor’s position he “would be putting the city’s experts together preparing a memo of opposition to the renewal application.”

Mayor Michael Bloomberg has spoken in favor of renewing Indian Point’s licenses, and has sharply rejected the idea of closing the plant.

“Well, if you closed Indian Point down today we’d have enormous blackouts. There is no alternative to the energy that we get from Indian Point. Four or five years from now that probably is not going to be true,” Bloomberg said in June 2011. “All types of power generation have risks and nuclear hasn’t killed anybody.”

In their article, Koch and Gallay said the New York metro area does not require Indian Point for its immediate power needs, arguing there is enough surplus power available to close the plant now and still meet regional demands through 2020.

A study commissioned by New York City confirmed that 2011 data from the New York Independent System Operator showed sufficient power through 2020.

But the final version of the report by Charles River Associates adjusted the ISO's forecast of 91 percent energy efficiency penetration – the degree to which energy efficiency targets have been met – saying that a 50 percent rate was more "realistic."

After adjusting the ISO data, the final report argued that the grid would fall short in the summer of 2016. Charles River Associates also raised questions about the reliability of power distribution without Indian Point. And their study estimates that the city's consumers would see their energy bills increase by 5 to 10 percent if Indian Point were to close.

A separate study, by Synapse Energy Economics, found that the cost increase to consumers might actually be far less, only 1 to 3 percent.

Koch said that when challenging a nuclear power plant “local governments feel powerless. The Congress has taken most of the power of local governments away and made it solely a function of a federal agency.”

A case in point is Vermont’s attempts to close Vermont Yankee, an Entergy plant situated on the Connecticut River, which have been unsuccessful to date. A challenge to Vermont Yankee’s license renewal failed last month in federal court.

Phillip Musegaas, director of Riverkeeper’s Hudson River Program, said that the debate about keeping Indian Point open boils down to one question: “If you don’t need the power, why take the risk? Its location is fundamentally problematic.”

When asked what he believed was the fundamental obstacle to closing Indian Point, Koch responded: “It’s called money. People invested billions in these plants … and are going to fight tooth-and-nail to protect these investments.”

NRC public hearings on Entergy’s application for renewal of Indian Point’s licenses are set to begin in October, though seismic risk and evacuation planning won’t be evaluated as part of the process. The reactors are currently licensed to operate until 2013 and 2015, respectively.


Challenges mount at Hudson River Park

hrpt lg

Photo courtesy of the Hudson River Park Trust

It's the 50th anniversary of the building complex at Hudson River Park's Pier 40, and the aging, dilapidated commercial structure is in peril. The roof of the building's parking garage is falling in and the pier's support pilings are disintegrating as marine worm borers feed on them. The building itself has exposed wiring, rusted metal and a leaking ceiling. The halls are covered in graffiti. 

Still, Pier 40, which is used daily by both ball clubs and commuters despite the need for emergency repairs to its pilings and roof, is in significantly better condition than nearby Pier 54, which can't currently support the weight of the public and is inaccessible. 

These are just some of the growing problems at the Hudson River Park, a 550-acre park along Manhattan's western edge that draws over 17 million visitors a year.

At a recent meeting of the Hudson River Park Trust that drew nearby residents and environmentalists concerned about the construction of a natural gas pipeline that would run under the greenway, officials said the cost of making the repairs continued to balloon, with the work needing to overhaul Pier 40 alone estimated at $120 million.

The challenges have sent officials scrambling to find ways to raise revenue, floating several options including residential and retail use and a long-shot proposal to construct a Major League Soccer stadium on Pier 40. But any option would need to support the long-term financial health of the piers while also acquiescing to some of the community's demands.

Officials also said that the constraints of the Hudson River Park Act, created by New York state to establish the the greenway in 1998, limited their options and might need to be revised.

The park itself is only 80 percent complete, said Arthur Schwartz, a member of Community Board 2. At the same time, government funding has been cut from about $20 million a year to $6 million. The state has promised to fund the park to completion.

At the recent meeting, Trust president Madeline Wels said the urgency of the repairs and size of the costs calls for “creative” solutions that might well require an amendment to the Act. Emergency repairs alone will come to $80 million over the next 10 years, far exceeding both their reserve fund of $25 million and expected revenue.

“The park's intention was to be self-sustaining, and there's enough money for regular maintenance, but not for capital maintenance,” Wels said at the meeting. She noted that badly needed infrastructure repairs, some of which were caused by damage from Tropical Storm Irene and some from the marine worm borers “weren't anticipated.”

The Trust had expected a private developer to fix the problems at Pier 40, but no private developer has come forward to lease the property, and now the park is faced with covering the cost themselves.

Potential development proposals were analyzed by Tishman Construction and their findings were also presented at the meeting. Of these, the prospect for the most revenue, explained Jed Howbert, a Tishman representative, includes retail and residential use, ideas that officials acknowledged are unpopular with community members in the area. Regardless of what is developed, the Trust maintained that 50 percent of the park on Pier 40 would remain open space. 

The proposal to create a Major League Soccer stadium on the pier had not been received in time to be included in Tishman's study, however, and Schwartz said questions remain regarding the impact on residents, as the stadium would bring in about 25,000 fans per game or event. The impact of a stadium would not be known until an official request for proposals is distributed, said John Kelly, a spokesman for the Trust.

If residents want to hear different proposals, Wels said at the meeting, the first step would be to amend the Act and extend the 30-year lease limit that is currently in place, a restriction that makes some development ideas untenable. The Trust would also like to see an amendment permitting the ability to bond for more money.

“We're trying to help the Trust sustain itself by amending the law,” said Wels. “We will get better proposals, too.” 

But some residents at the meeting said any change to the law was going too far. Alison Tupper, a resident of the West 40s, acknowledged the dire budget hole, but said the real value of the greenway was its function as a park. “Changing the law could open the park to unintended consequences,” she said. 

Assemblywoman Debra Glick, an outspoken critic of some of the Trust's proposals, argued that deteriorating conditions were being used as a reason to drastically and quickly rewrite the Act's restrictions before the close of the current legislative session. 

“The Assembly has asked the HRPT for what their immediate need is so we have time to review things,” she said. “I don't think you make good decisions in crisis mode.”

The most urgent repairs are expected to cost approximately $15 million, she said, with $5.8 million going to Pier 40's most crucial repairs. Kelly said repairing the entire roof will cost $30 million, with an additional $90 million needed for repairing pilings. 

“I'd like to see the city and state provide that emergency infusion to make those repairs right now in order to buy enough time for a more thoughtful discussion,” Glick went on.

She said more time was also needed to get comments from the public on the proposal to change the Act that created the park, considering the “significant changes” being presented. "It took 3 to 4 years to draft [the Act] after literally scores of public meetings," she said.

Glick described the meeting as “severely lacking” in public involvement, calling it little more than a presentation of the options the Trust seemed most inclined to promote. In fact, following the Trust's presentation, additional Trust members, largely repeating what was already said, were given the first opportunity to speak at a meeting with a limited time frame for public speakers.

The Trust insisted the meeting was a culmination of six months of “intensive exploration” with elected officials, community boards, and active community groups. Should the Act be amended, there will be a “built-in time for public feedback” following any plan to move forward with a development proposal. 

Brad Hoylman, the Community Board 2 chair, said he was particularly frustrated by what appeared to be the city's apathy to the park's problems. Hoylman noted that Governor's Island would be receiving $260 million in city funds, a park used five months a year, while Hudson River Park is "used everyday of the year." He added that the city had provided money for the East River esplanade as well.

“We as west-siders have to ask, why aren't we getting a share of that money? They made plenty of money off of us,” he said. 

Representatives for the city didn’t respond to requests for comment. The mayor has called Governors Island “the centerpiece of our efforts to revitalize New York City’s waterfront.”


Matt Hunger, a Brooklyn-based freelance journalist, writes on everything from municipal issues to the arts and sports. He can be reached at matt.hunger(at)gmail.com.  

Exclusive: Proposed policy would allow industries to self-audit pollution-generating activities

Photo courtesy Hudson Riverkeeper

Industries that use pesticides, treat wastewater and store hazardous chemicals could have penalties for breaking pollution laws reduced or waived if they agree to self-report violations under a policy being considered by New York’s leading environmental regulator.

Any entity that enters into an agreement with the state Department of Environmental Conservation to self-audit would also “not be prioritized for inspection during the audit period,” stated a draft of the proposed policy obtained by the Gotham Gazette.

The DEC regulates sources of air and water pollution, including private industry, agricultural uses, and municipal facilities like waste transfer stations and sewage treatment plants. It is responsible for enforcing over 40 New York State environmental laws and over 50 federal laws, including provisions of the Clean Air and Clean Water acts. The agency would also be charged with regulating hydraulic fracturing in the Marcellus Shale.

The self-audit policy, described in a draft document dated May 14, would apply to any private business or public entity, including federal, state and municipal agencies and facilities, which are regulated under state environmental law.

A self-audit, however, “is not required for disclosure and may not be warranted in certain circumstances,” the document states. Environmental violations involving suspected criminal conduct would not be eligible for a penalty waiver.

Further, the DEC would conduct an inspection if it receives “a complaint concerning the regulated entity or have reason to believe that a violation has occurred resulting in serious actual harm.”

DEC Executive Deputy Commissioner Marc Gerstman said the goal of the proposed policy was to promote compliance with environmental laws.

“Nobody is being given a free ride or a ticket to pollute,” he said. Instead, the policy encourages companies to come forward when something goes awry. “If a company has a violation that they want to disclose, [they] have some comfort level that we will not impose penalties.”

The draft of the policy was distributed in the DEC’s central and regional offices for internal review. DEC officials also said the agency had “held stakeholder meetings with environmental groups, municipalities and businesses to get their input on developing a self-audit policy.” More meetings were planned, they said.

The federal Environmental Protection Agency would also have to clear the new policy. A spokeswoman for the agency said they were unaware of the proposed policy. The DEC said it had attempted to contact the EPA and would discuss it with their federal partner before it is finalized.

Read the draft DEC document below

Too unwieldy to implement?

The proposed policy has already stirred up some concern among current DEC employees who worry that it will be too unwieldy to implement given the agency's resource constraints. One worker who has conducted inspections and reviewed the document told the Gazette that “the glaring issue is who is going to review all these audits.”

“We don't have resources to keep up with normal enforcement,” said the employee, who was not allowed to speak about the policy publicly and spoke on the condition of anonymity. “If the audit policy becomes a priority, then enforcement becomes secondary.”

Since 2008, the agency has lost almost 800 employees, bringing staffing levels to their lowest point in over twenty years. Meanwhile, federal financial support for the DEC has steadily declined and the agency has become more reliant on New York State tax dollars and revenue from fees and penalties.

“Resource limitations” and “the high volume of activities potentially affecting human health and the environment as well as practical constraints” in part led the agency to develop the proposed self-audit policy and other “auxiliary strategies,” the draft document stated.

DEC spokeswoman Emily DeSantis said the policy would alleviate some pressure on personnel. “As more entities within the regulated community adopt approaches to assess environmental performance on their own, the policy will allow DEC to focus its enforcement efforts on the truly bad actors,” she said.

The Debate Over Self-Audit Agreements

Environmental self-audit and voluntary compliance policies have been used by both the federal government and sporadically at the state level since the early 1990s. The DEC’s newly proposed self-auditing program would greatly expand the agency's current use of self-reported information, representing a major shift in the state’s approach to environmental protection.

The proposed policy enables companies and other entities to enter into self-audit “agreements” with the DEC. These agreements can be comprehensive, covering all environmental laws and regulations applicable to a facility, or limited to a portion of those requirements. Companies and other regulated entities that commit through a self-audit agreement to minimize their impact using “environmental management practices and pollution prevention systems” would be offered a variety of incentives.

The incentives are still being developed but they could include public recognition of the company’s efforts and access to technical assistance services, according to the draft document. Perhaps more importantly, they could include additional assistance with penalties and timeframes for correcting violations.

Some critics argue that such self-auditing programs could lead to less frequent inspections, erode defined missions for state regulators and provide a shield for polluters against environmental enforcement and public oversight. Others said enforcement should be the focus of regulatory efforts.

Robert Sweeney, the Democratic chair of the state Assembly’s environmental conservation committee, said he was skeptical of the proposed policy, which he had not seen until it was provided to him by the Gazette.

“A better option would be to consider beefing up enforcement, which would pay for itself,” he said. In a subsequent email, he added: “It may be old-fashioned, but to keep people honest you need cops on the beat.”

Self-audit agreements could also deal a blow to transparency and acountability, said Bill Wolfe, director of the New Jersey office of Public Employees for Environmental Responsibility. “There are no public hearings… no discoverable documents,” he said. “The audit becomes a way to stay private.”

But others saw a benefit to the policy. Richard Schrader, the New York State legislative director for the National Resources Defense Council, said a self-audit policy “make sense as one of the tools for environmental compliance.” But he said such a policy requires “great care and caution … [It] can’t be a substitute for ensuring that the DEC has adequate enforcement staff, and they still have to pursue full-compliance in an aggressive fashion.”

Darren Suarez, the government affairs director for the Business Council of New York State, said self-audit agreements could be beneficial to both the companies themselves and to “the goal of reducing degradation to the environment.”

“A self-audit helps to identify areas where an institution may not be handling materials as well as they would want to,” he said, and later added: “If they can come into compliance, that’s the big incentive.”

DEC spokeswoman DeSantis said the program would encourage “comprehensive company-wide audits and best management practices, designed to identify and correct violations without fear of significant penalties.”

“In the end, companies and municipalities that have strong systems in place to ensure environmental compliance will prevent violations down the line,” she said.

Learning From Experience

A “voluntary compliance” policy was previously attempted by the DEC in the mid-1990’s under then-Commissioner Michael Zagata. But one retired DEC staffer with knowledge of the enforcement process said the agency’s personnel grew reticent to follow up on reports of violations after the policy was in place.

Paul Gallay, a DEC attorney from 1990 to 2000 and now president of Hudson Riverkeeper, said of the Zagata period: “The hidden message was, ‘We don’t have to enforce the way we used to.’”

Zagata, who is now the president and CEO of the Ruffed Grouse Society in Pennsylvania, said he could not remember if there was a written policy with clear parameters. But he said that voluntary compliance was something he was trying to push as a philosophy throughout the agency.

"Voluntary compliance, with the understanding that if you don't do it, there's a stick on the other side of the fence, is doable,” he said, but added that the agency would still need enough workers to verify noncompliance.

DEC administrative hearing records for a case settled in 2005 involving a gas station with registration and safety violations reference a backlog of enforcement cases due to the agency’s “voluntary compliance” program.

The case, which focused on the gas station’s underground tanks, took over a decade to resolve and hinged on whether the tanks were being tested for leaking that could seep into wells or other underground water sources.

“Although the tanks were due for testing in October 1992, DEC staff did not inspect the facility or take action to bring it into compliance with the testing requirement until June 2002,” hearing records stated. “This was part of an ongoing effort by DEC staff to reduce a backlog of overdue registrations and tank tests that had accumulated while the Department was pursuing a policy of voluntary compliance.”

Other states' experiences

As New York weighs a possible self-auditing policy, New Jersey is also re-visiting the idea after an earlier proposal was struck down. Meanwhile, the Massachusetts Department of Environmental Protection has used a form of self-auditing in its Waste-Site Clean-Up program since 1993; it has considered expanding the policy into wetlands management but has not made a final determination.

Public Employees for Environmental Responsibility released a 2008 press release charging that the “failure rate” among companies who self-audited using private licensed consultants was found after a state review to be 70 percent (21 of 30 sites).

Paul Locke, director of response and remediation for the Bureau of Waste Site Clean-Up at the Massachusettes DEP, rejected the criticism. “That is not representative of the universe of submittals of site clean-ups that we get,” he said.

He argued that privatizing aspects of environmental auditing and oversight can be appropriate in contexts where licensed professionals are engaged in well-defined tasks. “You have to set up the system so that they are checking in along the way -- you have multiple checks and balances. It’s not as clear-cut as the Wild West of self-auditing,” he said.

Kyla Bennett, who runs the New England PEER office and worked for the EPA for ten years, said she believes there is an inherent conflict of interest in allowing private companies to pay for environmental audit services as opposed to relying on public enforcement.

“Is it a risk? Absolutely…. You can skew things in one direction or another. It happens all the time. The Massachusetts DEP doesn’t have the money to go after licensed professionals, let alone go after violators,” she said.

Stretching Resources

The policy draft says self-auditing will “supplement” existing DEC environmental enforcement activities. How well environmental enforcement is currently working and the DEC’s ability to keep up with inspections has been a subject of scrutiny, especially given the DEC’s loss of staff.

Commissioner Joseph Martens told the Gazette in March that the DEC will not see an increase in staff “anytime soon,” due to the state’s fiscal situation. The draft’s reference to DEC’s resource limitations raises the issue of how the agency has searched to find ways to meet state and federal mandates.

A DEC employee with knowledge of the state’s petroleum bulk storage program, which regulates oil storage facilities of over 1,100 gallons typically found in gas stations, medium to large industrial businesses and public buildings, said private contractors have been brought in to help with the inspection backlog because the program is so shortstaffed.

The program is run in conjunction with the federal EPA. The employee, who was not allowed to speak publicly about the program and did so on the condition of anonymity, explained: “This year, over 24,000 PBS sites have overdue tank registrations. Historically we would send out notice of violation letters and attempt to get a penalty. DEC would get responses and that would be the ones we would work on. The ones who did not respond was a low priority. Think of the volume. No way can the DEC handle that volume effectively, not then and not now. We are trying to prioritize the volume of non-compliance. But I see this as a failure in the [PBS] regulation and its attempt to prevent oil spills.”

The DEC disputed the employee’s claim, saying that only 4,600 PBS registrations were more than 90 days overdue. Fewer than 600 are less than 90 days overdue. The DEC said most of the overdue regustrations were heating oil tanks, “which are generally overdue because they have been sold or have changed management companies.”

“DEC has and continues to promote compliance and do enforcement as necessary for these overdue registrations,” said DeSantis, the agency spokeswoman. “This enforcement is done every year and has been ongoing since 1997 when we had more than 8,000 facilities overdue for registration.”

The DEC has acknowledged that they stopped performing effluent sampling as a regular part of the State Pollutant Discharge Elimination System inspection program in fiscal year 2010-2011 after significant staff loss. Any facility that discharges into surface water needs a permit, including manufacturers, power plants and sewage treatment plants. The DEC uses self-reported data from regulated pollution sources as part of the SPDES program.

According to Environmental Advocates, a watchdog group that monitors the DEC, in 1990, the DEC sampled effluent 1,113 times to verify polluters’ reports.

In 2008, the DEC took 112 samples, a 94 percent decrease. The DEC said the sampling is not required by law. “This information continues to be self-reported by the permitees,” the agency previously told the Gazette.


The New York DEC is completing an internal review of the self-audit policy before introducing it more broadly. The agency has not indicated whether the policy would be tested out in one division first, or if it would apply to all of DEC's enforcement work. New York State Legislative approval for adoption of the policy is not required. The DEC’s Gerstman noted that the agency is “coordinating with the federal EPA as a partner.”

Suarez, of the Business Council, said the right questions to be asking are “what do you ultimately want to see and how do we get there? And (can this) allow businesses to stay here?”

Hudson Riverkeeper’s Gallay said there was a way to balance environmental law with business interests while also enforcing penalties. “When I worked for the DEC, we took great pride in bringing companies back into environmental compliance and economic health. You don’t need penalty forgiveness policies to do that,” he said.

The DEC has sole discretion to select eligible businesses and other entities for participation in self-audit agreements, the draft document states, and to exclude “bad actors” that have a history of non-compliance. Regulated entities that own or operate multiple facilities can still be eligible even if one of their facilities is under investigation.

Federal Reports Warn of Staff Shortages at DEC


Staffing and resource shortages at the Department of Environmental Conservation’s (DEC) Shellfisheries division have been flagged as an “emerging problem” by the U.S. Food and Drug Administration. FDA program evaluation reports released in late 2011 cite staffing-related issues in three of the Shellfisheries division’s four units. A January 2012 letter to DEC Commissioner Joseph Martens, which accompanied the FDA’s bi-annual evaluation of the division, notes that one of the units, “May be currently stretched to its operating limits. FDA encourages the DEC to invest the necessary resources to keep the Growing Area Classification Program in compliance (…) the FDA is concerned with the loss of staff in the Growing Area Classification Unit which is critical to protecting public health.”

In an interview last month with Gotham Gazette, Commissioner Martens stated that the DEC will not see an increase in staff “anytime soon” due to the state’s fiscal situation. The DEC has lost almost 800 employees since 2008. Agency staffing levels are at their lowest point in over twenty years.

Monitoring Shellfish Safety

The DEC’s Shellfisheries division monitors water quality in state shellfish growing areas, and regulates the harvest, handling and processing of shellfish. The division is part of the DEC’s Bureau of Marine Resources (BMR), and is responsible for both maintaining the state’s shellfish resources and protecting public health. Shellfish are an important part of New York’s multi-million dollar seafood industry. Clams, mussels, scallops and oysters comprise over half of the state’s commercial catch, according to the New York Seafood Council, a non-profit industry association. Because shellfish pump and filter water through their bodies, they can absorb pollutants, bacteria and other contaminants, which can lead to illness when the fish are consumed. DEC’s Shellfisheries division works in conjunction with federal agencies such as the Environmental Protection Agency and the Food and Drug Administration to maintain national sanitation standards within the New York shellfish industry. Local municipalities are also responsible for monitoring shellfish-related activity, but the DEC is responsible for establishing and maintaining baseline regulations.

A DEC staff person speaking on condition of anonymity pointed out that of any division at the DEC, Shellfisheries has the most acute link to public health. “What we do is directly public health related every day. It's just part of what we do…Contaminated or spoiled shellfish could get out and people could get sick.” Earlier this month, the Shellfisheries division closed portions of Shinnecock Bay and Mattituck Creek in Suffolk County due to the appearance of biotoxins, which are naturally occurring but are potent neurotoxins when ingested. Monitoring and preventing biotoxin contamination is a relatively new challenge for the DEC. The State first closed shellfish areas due to the identification of biotoxins in 2006, and the plankton blooms have appeared along the Northeastern seaboard. The presence of biotoxins in New York shellfish growing areas occurred a month earlier than anticipated this year. Says the DEC staffer, “this problem has expanded. We have no more people to do the work. It is pushing us to the limit.”

The FDA Weighs In

The FDA praised the Shellfisheries division’s “pro-active” development of a biotoxin monitoring system in its 2011 review. It also determined that the division’s growing area classification unit, which monitors sources of water pollution in about a million acres of marine and ocean territory, was not in full compliance with federal regulations. Monitoring water pollution is especially critical in New York because the Long Island coastline is densely populated. National Shellfish Sanitation guidelines require that DEC biologists conduct a series of shoreline surveys targeting sources of pollution, such as water treatment plants, that can impact shellfish areas.

The shoreline surveys are re-done every 12 years on a rotating basis as pollution sources change. The surveys are then used to set up water sampling stations, which enable the Shellfisheries division to accurately classify the safety of growing areas. Water sampling is conducted year round.

The FDA flagged an open growing area which had not been surveyed since 1994, along with sampling data that needed completion. Growing areas whose surveys are not up-to-date are eventually closed until current information is obtained. These closings impact the local shellfish industry. The survey report and sampling were subsequently completed and the growing area classification unit is back in compliance.

But the FDA discussed the resource strain caused by increased biotoxin monitoring and the re-opening of "conditional" harvesting areas closed because of earlier budget cuts. According to the FDA, the growing classification unit “is already highly dependent on borrowing staff and resources from other programs to accomplish minimally required field activities.” The unit will be reviewed again this year. In a written response to questions about the FDA review, Emily DeSantis, DEC’s Director of Public Information, stated, “we provided the USDA with an action plan to address the non-conformities in the Growing Area Program. We have implemented that plan.”

Staffing and Funding Issues

The 2011 FDA review also found staffing related issues in the DEC’s Shellfisheries plant inspection and lab units. The Shellfisheries division has a dedicated unit which inspects wholesale plants and shipping facilities where oysters, clams, etc. are unloaded and processed for distribution. The unit is an important part of the safety process because they are looking for potential cases of spoilage and poisoning before product heads to restaurants and stores. The FDA recommended to DEC in 2011 that the agency fill two vacant inspector positions, stating “that at current staffing levels, it will be nearly impossible for DEC to achieve the minimum number of plant inspections required under the NSSP ordinance in the future.” Emily DeSantis responded that the agency has filled one of the plant inspection unit’s two vacant positions, and that “we feel that we are adequately staffed at this time.”

The FDA review also discusses instances when the Shellfish Sanitation Program was constrained by lack of funding for additional testing, equipment, and staff time. According to the FDA, during the biotoxin closures in spring 2010, DEC staff sent samples out of state for analysis as they tried to secure funding for a specialized form of testing that could be performed locally. The Division’s Vp monitoring program, which tests for strains of a particular pathogen found in Oyster Bay in 1998, has been suspended since 2009 due to lack of funding. According to the FDA, Vp-related illnesses spiked in 2009 and sporadic cases occurred in 2010. “Several (cases) may have had associations to shellfish harvested in New York waters.” The FDA discussed the Shellfisheries division’s inability to purchase gene-probe materials, and questioned whether “such monitoring may have prevented Vp-contaminated shellfish from being sold and consumed if DEC-BMR had the necessary screening materials sooner.”


DEC has administered other cost cutting measures impacting the Shellfisheries division, such as restricting overtime, which the FDA argues has “Significantly reduced the time frame for accomplishing water sampling…and has resulted in 30% loss of sampling opportunities.” Samples previously gathered over a 5 day period must now be gathered in 3 or 4 days. The necessity for water sampling activity has increased as the division responds to the evolving biotoxin situation each spring. According to the FDA, the compression of sampling activity due to funding restrictions has “overwhelmed” DEC’s shellfisheries lab because samples must be processed rapidly. The FDA has also proposed that the lab may need another technician.

The FDA’s most recent reports raise a number of questions about how far resources can be stretched before core functions that protect public health and natural resources become untenable. The FDA did not comment on this story. The DEC has argued that some of the impact of recent staffing losses throughout the agency can be mitigated by efficiency and technology improvements. An anonymous source within the Shellfisheries division observes, “(we are) constantly in catch-up mode. It’s grinding people down. You don’t do more with less. You can only do less with less.” In reference to the division’s work to track biotoxins and man-made pollution sources in the state’s shellfish growing areas, he adds, “We are just marginally keeping our heads above water. At some point we will fall too far behind.”

Where Tech and Environment Meet

Photo by Jonathan Camhi

Lief Percifield wants to let New Yorkers know about possible sewage seeping into their drinking water.

Every year 27 billion gallons of untreated sewage are released into New York Harbor during Combined Sewage Overflows, causing a number of health concerns. Percifield explains that a Combined Sewage Overflow occurs when rainwater overloads the city’s sewage pipes. The pipes then spew the rainwater and sewage out of overflow points along New York Harbor to keep from flooding the sewers.

Percifield, a graduate student at Parson’s, wants to place sensors at these overflow points that would detect Combined Sewage Overflows and alert New Yorkers when they are occurring. If New Yorkers conserve more water during the overflows, then less sewage will be spit out into the harbor, he says.

Percifield would like to sell light bulbs that would turn color to indicate an overflow that people would place in their kitchens or bathrooms. People would then wait until the overflow subsides (they usually last 4-6 hours) before doing their wash or taking a shower.

But Percifield still hasn’t worked out many details of his alert system. For instance, he’s not sure how to manufacture some components of his system in a cost-effective way, or how he will distribute the light bulbs.

“I would hope that Home Depot would sell them at some point. In the short term I have no idea,” he says.

He might not have every part of his plan worked out, but his project still caught the eye of In Our Backyards, an organization that raises funds for local environmental projects around New York City. With the organization’s help, Percifield raised $3,240 to get his project off the ground and build his first sensor and light bulb prototypes. He has installed his first sensor at an overflow point on the Gowanus Canal by Bond St. and 4th St. and he now has a light bulb in his bathroom telling him not to shower when a Combined Sewage Overflow is happening. Percifield says he is now talking with the city’s Department of Environmental Protection about helping him install and maintain his sensors.


In Our Backyards has helped fund over 125 other green projects like Percifield’s since it started in May 2009. Erin Barnes, one of the organization’s co-founders, says they call themselves a “crowd-resourcing” organization, combining crowd funding through their website and resource organizing in terms of helping their projects find volunteers and network with other organizations.

Barnes says that the co-founders – all graduates of the Yale School of Forestry – wanted to give New Yorkers an opportunity to reconnect with the environmental movement. Many environmental causes tend to seem distant and complicated to most urbanites, Barnes says.

“We wanted to change that [perception] and turn it on its head,” she says.

To date In Our Backyards has raised nearly $175,000 and successfully funded 101 projects including urban farms, community gardens, chicken coops and recycling programs. The organization receives funding from several foundations, and takes 20 percent of the money it raises for projects to cover its own costs.

The only criteria the organization uses to qualify a project for funding is that it must benefit the public in some way and it must have an environmental angle.

Most projects come to In Our Backyards through word-of-mouth, says Brandon Whitney, another co-founder. The staff canvases environmental events and green markets across the city spreading the word about their work and networking with potential donors. The organization also holds networking and fundraising workshops to teach project leaders how to reach out to donors in their neighborhood.

Local Support and Impact

The average donation for one of the projects is just $35, and most of the donations come from people living within two miles of the project they are funding, says Whitney.

“It’s people helping out in their own neighborhoods, which is really cool,” Whitney says.

Often the neighborhood residents who donate to a project also volunteer time to work on its development. Volunteers lead the majority of In Our Backyards’ projects.

Pollos del Pueblo is a project that is turning a vacant East New York lot at 2358 Pitkin Ave. into the area’s first chicken coop. The project is raising funds through In Our Backyards and is managed by the Cypress Hills Local Development Corporation, a local non-profit.

About 25 local residents are pitching in to clear the lot and turn it into a functioning chicken coop and vegetable garden providing organic eggs and produce for the community. Many of the volunteers also donated to the project.

“This is something that we don’t have in our neighborhood and in our supermarkets, fresh fruits and vegetables,” says Mercedes Sandoz, a volunteer who has lived in the area for 26 years.

Last Tuesday Sandoz and a number of the other volunteers were mowing the knee-high grass and weeds that had taken over the lot, clearing the way for the chickens that will come in June.

Less than 25 percent of food retailers in the neighborhood offer fresh produce, according to Cypress Hills, which acquired the vacant lot to develop affordable housing. But since the lot was too small for a housing development, the non-profit decided to use it to address the shortage of fresh produce in the area, says Nuala Gallagher, the project’s manager from Cypress Hills.

The Pitkins Avenue lot will eventually house 10 raised vegetable gardens, a chicken coop and maybe a greenhouse.

The project will hold seminars to teach local residents how to practice urban farming in their own backyards. Local children from Cypress Hills’ after school program will also come work on the farm and learn about nutrition.

Sandoz and the other local volunteers transforming the lot are excited to see their time, sweat and money go into something that will make their neighborhood healthier.

“Now all the food is frozen,” Sanoz says. “The old healthy recipes, the old traditions, grandma’s recipes, I think we should go back to that.”

Nuala Gallagher says that she hopes to expand the project to other lots. More than 30 percent of the lots in the area are vacant, she says.

In Our Backyards is looking to expand too. The co-founders say they are now wrapping up their pilot phase here in New York and want to use their “crowd-resourcing” method to bolster local environmental projects in other cities.

“We’re just trying to show that there’s a lot of great things going on at a local level,” Brandon Whitney says.

Analyzing Hydroelectric

Photo by William Alatriste

The City Council today passed legislation requiring an analysis of the city’s water supply as a potential source for hydroelectric power.

The analysis will be conducted by the city’s Department of Environmental Protection and will take 18 months to complete, said Council member James Gennaro, who chairs the Committee on Environmental Protection. City officials hope that generating hydroelectric power would help the city reach its goal of reducing carbon emissions by 30 percent by 2030. That reduction would be the equivalent of the entire carbon footprint of Oakland, California, Council Speaker Christine Quinn said.

“This is a first-in-the-nation type of bill,” said Council member Gennaro. “All of the people involved in this kind of technology across the country are looking at what the results of this study are going to be.”

The city’s water supply, wastewater treatment facilities and natural waterways will all be evaluated as possible sources of hydroelectric power. The economic feasibility of hydroelectric projects at specific sites will also be assessed and delivered to the Mayor’s office and the City Council after the study is completed.

The council passed the bill (Intro 534-A) authorizing the hydroelectric assessment unanimously.

Behind The Tide

Council Speaker Christine Quinn said New York City is “behind the tide” in hydroelectric power, especially given the city’s large water supply and natural waterways. Other cities, she said, are already generating a significant portion of their energy from hydroelectricity. New York City would be able to power all the lights on Broadway with hydroelectricity produced from water flowing through the pipes under Times Square, Quinn said in a statement.

“We are behind the curve, or behind the tide, if you will, when it relates to hydroelectric power,” Quinn told the Council. “This study is going to get us on target.”

The Speaker cited Boulder, Colorado as a positive example in hydroelectric power production. Boulder’s eight hydroelectric plants produce enough power for 7,500 homes, saving the city from having to burn 20,500 tons of coal each year.

Library Card Expansion

The City Council also passed a bill (Intro 711-A) to expand the Library Card Act that requires the Department of Education to distribute information on public library cards to all students entering kindergarten.

The new bill charges several city agencies with providing information about library cards to students when they enter pre-kindergarten. Those agencies include the Administration for Children’s Services, the Department of Youth and Community Development, the Human Resources Administration and the Department of Homeless Services.

Over 1,000,000 children eligible for library cards in New York City don’t have one, according to Council member Jimmy Van Bramer, the chairman of the Committee on Cultural Affairs, Libraries and International Intergroup Relations.

“That is something that we have done a lot already – but need to do more – to address,” he added.

Council members point to studies that suggest that developing literacy skills in pre-school improves reading comprehension later on in a child’s education.

Over 150,000 New York City children have received library cards since the Library Card Act was passed in 2010, according to Van Bramer.

What Do Budget Cuts Mean for the DEC?

Photo provided by Office of Gov. Andrew Cuomo

Is the state’s lead environmental agency adequately resourced? Department of Environmental Conservation (DEC) Commissioner Joseph Martens says that after a series of severe cuts in which the agency lost 20 percent of its staff, he does not expect to be hiring in the foreseeable future. Referring to the condition of the state’s finances, Commissioner Martens told the Gotham Gazette, “We are trying to adjust to that new reality. I don’t think we can think about adding resources anytime soon.” Commissioner Martens stressed that the DEC has not lost additional staff since Gov. Andrew Cuomo has been in office, and that this year’s budget added resources for badly needed DEC capital projects.

Sixteen months ago, representatives of some of the state’s leading environmental organizations wrote an open letter to then New York gubernatorial candidates Carl Paladino and Andrew Cuomo. The letter referenced “long-standing problems that are now endemic to New York State’s efforts to protect public health, provide stewardship of our lands, and prevent our air and water from being polluted.” It described the condition of the DEC as “dire” due to disproportionate budget cuts and the loss of almost 800 agency scientists, engineers and enforcement officials in less than four years. The letter also discussed the “slashing” of the state’s Environmental Protection Fund by 40% in 2010. According to the signers, the Fund’s diminishment left “municipalities and non-profit groups waiting for payments to support ongoing efforts to protect drinking water, reduce solid waste, and improve the quality of life in New York’s communities.” State support for the Fund has remained at the 2010 level of $134 million.

After his election, Cuomo went on to name one of the letter’s signers, Open Space Institute Director Joseph Martens, as the new DEC Commissioner. Conversations in the last few weeks with several of the letter’s signers, along with elected officials, and others who work with the agency, revolved around one central question with no easy answer. Can the DEC sustain its enormous and critical mission with its current level of resources? And if it cannot fully sustain the mission, what is the potential long-term impact on the State’s natural resources and public health? Indeed, a number of environmental advocates argue that as the agency’s resources have shrunk, its responsibilities have only increased because of additional state and federal legislation, population growth, and long-term environmental challenges like climate change. Paul Gallay, President of Hudson Riverkeeper and a DEC staffer for ten years, asserts that the DEC is on a "starvation budget." "The job has gotten bigger and the budget is smaller... remember, the term environment covers hundreds of different aspects of our quality of life and public health."

Martens points out that, despite prior staff losses, the agency has had significant accomplishments in the last year, including passage of legislation regulating large-scale water withdrawal from state rivers, lakes, streams and groundwater. Environmental groups have hailed this legislation and the DEC’s role in bringing it to fruition. But these same groups, the union representing DEC professional staff and some elected officials argue that the DEC is being asked to do too much without sufficient resources.

An Expansive Mission and New Challenges

“This is an agency with an enormous mission”, says Richard Schrader, the National Resource Defense Council's legislative director. The agency’s mission is to “conserve, improve and protect New York's natural resources and environment and to prevent, abate and control water, land and air pollution, in order to enhance the health, safety and welfare of the people of the state and their overall economic and social well-being." The DEC’s structure speaks to the breadth and depth of the agency’s mission. Six programmatic “offices”, housing 10 divisions and other dedicated units, oversee the state’s air and water resources, environmental permitting functions, environmental remediation and materials management needs, enforcement of environmental regulations, and management of natural resources such as forests and marine areas. This does not include the agency’s administrative and operational divisions. The DEC’s responsibilities include everything from monitoring and reducing air pollution to inspecting sewage treatment plants to the upkeep of state-owned hiking trails. Commissioner Martens points out that the DEC “touches an enormous variety of New Yorkers’ lives”.

A serious challenge for the DEC and state environmental policy in general is that environmental conditions are shifting, and will continue to do so. The DEC houses special offices focused on emerging issues such as climate change and invasive species. Its public protection office includes a law enforcement division and an emergency response unit. Schrader described the agency’s performance during the flooding caused by Hurricane Irene as “very impressive”. He noted that emergency relief work is another “redefining of the agency’s mission”. Commissioner Martens was on hand as DEC staff worked in the field during Hurricane Irene and commented that, “the staff was extraordinary. Anytime we’ve asked the staff to do something, they’ve responded.”

Because New York is seeing more illustrations of the impact of climate change, the agency is promoting energy efficiency and sustainable development throughout the state via programs like Cleaner Greener Communities. The DEC also manages regulatory responsibilities connected with New York’s participation in the Regional Greenhouse Gas Initiative, a carbon trading program among nine U.S. states. Income from the initiative is reinvested in renewable energy projects.

Another key challenge for the DEC is that it is considered an important part of realizing the Cuomo administration’s economic development objectives. The Cuomo administration sees both environmental protection and wise stewardship of New York’s wealth of natural resources as inextricably linked to economic revitalization. An environmental policy overview released by the governor before his election argues that the state cannot afford to address environmental challenges in a vacuum. This statement has particular resonance given the state’s financial condition. A dual mission of environmental protection and economic development creates enormous opportunities for the DEC, and profound challenges. Nowhere is this more apparent than in the administration’s plan to open the Marcellus Shale to hydraulic fracturing. The DEC has stated that they will require an estimated 225 additional staff to adequately oversee drilling in the Shale and protect the state’s water resources. The Cuomo administration is exploring whether additional fees charged to the gas industry could be used to support new DEC staff.

Robert Moore, Executive Director of Environmental Advocates, a non-profit group that monitors the DEC, questions the rationality of hiring 225 people to service one industry after 800 staff cuts. He also asked whether revenue for the agency could be increased by reviewing its overall fee structure. Mr. Moore maintains that while environmental and economic successes are not diametrically opposed, the DEC has one core mission. "With regard to fracking, the Governor and the DEC initially erred by buying into industry claims of economic benefits rather than focusing on the science. Job creation is not DEC's job, environmental protection is."

The DEC is actively involved in the state’s economic life as a regulator, provider of technical assistance and an economic engine. The agency manages natural resources, such as forests and fisheries, which are vital to the state’s economy. The DEC’s capital projects have the capacity to generate economic activity and support future investment. This year’s additional capital funding for DEC will be used for coastal erosion and flood control projects, and dam reconstruction. The $102 million allocated to the DEC is part of $1 billion being spent statewide via the New York Works program. According to Martens, the DEC is also considering implementation of a program currently used by the Federal Environmental Protection Agency that encourages businesses to self-audit their processes in exchange for technical assistance with pollution prevention. The Cuomo administration has expressed a general interest in finding ways to link environmental regulations and business incentives.

Responding to Limited Resources

When asked about agency priorities in 2012 and beyond, Martens explained that the DEC is in the process of evaluating how agency services can be improved given current budget constraints. The agency’s permitting functions are an area where Mr. Martens believes real strides can be made, and the agency plans to review every permit program (from wastewater discharge to wetlands protection) in the next two years. He notes that DEC “technology badly needs upgrading but we have embarked on an initiative to increase how we can use the technology we have to increase efficiency in our processes.” Martens argues that both the ability to file electronically and a re-design of the permitting process can make up for some of the agency’s staff loss. “A lot of the processes can be simplified and staff can do more program work.” This approach is echoed in Cuomo’s New NY Agenda, which proposes “a comprehensive review of the existing environmental bureaucracy” and “recommendations for reorganization and better coordination where such coordination would provide for significant cost savings, better management or more efficient operations”.

Three DEC staff members who are familiar with the agency’s permitting programs commented anonymously that while a rethinking of the agency’s permitting process is inevitable given resource limitations, the fundamental objective of permit review should not be compromised. They made the point that no matter how quickly applications can be submitted, a qualified staff person must be available to thoroughly review the application, and determine if relevant information has been withheld. They argued that the agency simply does not have sufficient staff people at present to carry out compliance and enforcement responsibilities which are needed after permits are approved. They also questioned the agency’s use of both contractors and state employees to carry out permit review functions, pointing out that contractors are not necessarily subject to the same ethics requirements as state employees.

Measuring the Impact of Staffing Cuts

The DEC’s 2,983 employees who are responsible for carrying out the agency’s mission and programmatic objectives are situated in an Albany central office and in nine regional offices throughout the state. Agency staffing levels are at their lowest point in over 20 years.

Assemblyman Robert Sweeney (D), chair of the State Legislature’s Environmental Conservation Committee believes that staffing losses have impacted the DEC on a variety of levels, including its ability to monitor air and water quality, process permits and even file applications for additional federal funding. “Everything has been impacted and nothing has been abandoned…they are hurting very badly and their employees are showing extraordinary dedication. They’re not getting the resources. We’re not talking about a small number of positions. Their needs are very significant.” Assembly Member Sweeney’s counterpart in the State Senate, Environmental Conservation Committee chair Sen. Mark Grisanti (R), adds that “the DEC has basically been cut to the bone. The biggest challenge is getting the DEC to the levels it needs”. As to whether Governor Cuomo sees the agency as a high priority, he responds, “the Governor totally recognizes the importance of the DEC. I think that he gets it.” Representatives of environmental organizations interviewed for this article had varying opinions on the priority that the Cuomo administration places on the DEC’s resource needs. The Cuomo administration did not respond to requests for comment.

There is not complete agreement that restoring some of the DEC’s lost staff capacity is what the agency needs to fulfill its mission. Darren Suarez, Government Affairs Director with the Business Council of New York State, argues that “the agency has significant resources. The DEC has been evaluating how they’re using their resources. They’ve recognized that they can’t operate as they have in the past. You can’t just throw additional staff at the problem…the DEC has committed itself to lean management.” He notes that there are technological solutions that could be used to help address some of the DEC’s responsibilities, such as remote monitoring of wastewater discharge, and believes that the permit review process “had become duplicative”. Suarez “sees no indication” that the agency cannot fulfill its mission of protecting human health and the environment. And he believes that the DEC has recognized that they can do more to work in a collaborative manner with business, and not forego regulatory requirements.

None of the environmental leaders who sounded the alarm about the DEC 16 months ago were prepared to argue that the state’s environment had markedly deteriorated due to loss of staff at the agency. In fact, they highlighted a number of the agency’s accomplishments over the last year and the impressive performance of DEC personnel. What they shared was a sense that the agency was no longer operating at full capacity because it lacked sufficient manpower. Marcia Bystryn, President of the New York League of Conservation Voters, maintained that “there is no reason to believe that anything catastrophic has taken place.” But she added that DEC’s staffing constraints “have slowed things down”. Paul Gallay at Hudson Riverkeeper adds, "we are slowing down on the progress we made in past decades. Sooner rather than later, we could come to a dead stop and then go in reverse. You don't want to get to that point." Sweeney was perhaps more pessimistic. “It may not be obvious that the air quality is worse, or that the water quality isn’t what it should be, but that doesn’t mean there isn’t a problem… Unfortunately DEC is not out there in the field as much as they were in the past and should be in the future. Their ability is compromised.”

Martens agrees that there were “real concerns about whether we could handle and continue with our basic functions, and keep our mission…(but) things have stabilized here. I still have a great deal of confidence in our ability to maintain and improve water quality for instance.” He cites an agreement signed last week between DEC and New York City’s Department of Environmental Protection that will reduce the flow of sewage into the Hudson River, East River, Newtown Creek, Gowanus Canal and other city waterways. The enforcement order is the result of two years of work by DEC’s water division. Commissioner Martens adds, “I don’t think we have lost ground. We’ve made progress.”

We will be looking at specific areas where advocates have raised questions about DEC capacity, including monitoring of wastewater discharge and air quality, and the agency’s ability to respond to oil and chemical spills, in a follow-up article.

Is the DEC Prepared For Hydraulic Fracturing?

Photo by Ari Moore

While the Cuomo administration has not been definitive about its plans for hydrofracking recently, it is also unclear whether the state is adequately prepared to manage natural gas drilling and protect local drinking water supplies.

The Governor declined to mention drilling in the Marcellus Shale when he made his State of the State address on January 4th despite the fact that the written version of his address discusses hydraulic fracturing in the state’s Southern Tier, where the largest deposits of natural gas are believed to exist. The state’s 2012 budget does not include revenue or costs related to hydraulic fracturing activity. The Department of Environmental Conservation (DEC), the state agency that would issue drilling permits and oversee drilling related activity, received a 9% funding increase in 2012, but no allocations for new staff. The Cuomo administration did not respond to several requests for comment for this story.

The DEC is now required to review over 46,000 statements on hydrofracking received from the public and local governments, and release a finalized regulatory framework for drilling which will likely face legal challenges. Public comment on the state’s revised hydrofracking impact report and drilling regulations was extended until January 11th due to the volume of statements submitted. The Draft Supplemental Generic Environmental Impact Statement (SGEIS) outlines the Cuomo administration’s plans to open the New York State portion of the Marcellus Shale to natural gas drilling. Drilling in the Marcellus Shale will require hydraulic fracturing, a technique that is controversial for environmental and public health reasons. Proponents argue that drilling in the Shale will create thousands of jobs and help to revitalize the upstate economy.

According to DEC Director of Public Information, Emily DeSantis, “If the final documents determine high-volume hydraulic fracturing could move forward in New York, we could begin to review permit applications after the final SGEIS and findings statement are released.” DeSantis expects the final documents to be released this year.

While the state has taken steps to minimize the possibility of large-scale water contamination, such as drawing 4,000 foot no-drilling boundaries around the Syracuse and New York City watersheds, activists and some residents contend that the state is not yet prepared to adequately protect underground and surface water supplies from the scale of drilling that is planned. The union that represents the DEC’s scientific, technical and professional employees, the Public Employees Federation (PEF), along with some elected officials, has echoed this concern.

Properly Staffed?

According to the DEC, the agency has shed 800 employees, from both professional and non-professional categories, in the last 3 years. The PEF reports that the DEC currently has 3,003 employees, which represents a 21% reduction in staff since 2008.

DEC spokeswoman Emily DeSantis points out that “from the start we have recognized the need for additional staffing to oversee high-volume hydraulic fracturing operations. Our estimates indicate we will need about 140 staff in the first year and 200 staff by year 5.”

Wayne Bayer, a member of the Public Employees Federation Executive Board and a 30-year veteran staff member at DEC headquarters, tries to illustrate the resources challenge that the DEC faces in properly regulating hydraulic fracturing. The agency will require an influx of specialized staff in several divisions including water, mineral resources and environmental remediation, within both DEC’s central and regional offices. The DEC will need additional engineers, geologists, chemists, wildlife biologists, inspectors, attorneys and administrative staff.

According to Bayer, DEC personnel will be responsible for everything from reviewing drilling applications, to checking the strength and width of the cement encasing drilling wells, to monitoring the withdrawal of hundreds of thousands of gallons of fresh water used for drilling and ensuring that private wells and public water supplies are not diminished, to evaluating the impact of drilling activity on endangered species and local forests, to cleaning up waste water spills as they occur.

The DEC projects that as drilling in the Shale progresses, it may receive as many as 1,600 permit applications per year. Drilling in the Marcellus Shale could continue for 30 years. The state envisions annual construction of a minimum of 413 horizontal and vertical wells in a “low-development scenario”, and 1,652 wells constructed annually in a “medium-development” scenario. At present, the agency has sixteen professional staff assigned to oil and gas regulation including permitting, compliance and enforcement across the state.

Aside from the question of hydraulic fracturing, there is concern that the DEC is no longer able to fully carry out its existing responsibilities due to budget cuts. After Governor Paterson ordered 209 staff cuts in October, 2010, nine environmental organizations, including the New York League of Conservation Voters and the Nature Conservancy, issued a joint statement that “the latest round of layoffs will reduce agency staff to the lowest levels since the 1980’s, with serious consequences for the DEC’s ability to respond to environmental hazards, not to mention critical routine functions such as monitoring air and water pollution, as well as natural resources protection and stewardship.”

Wayne Bayer notes that the DEC has fallen behind on issuing new and renewal permits for industrial sites as part of its mandate to monitor the state’s water and air quality. DEC just worked its way through a year- long backlog of required inspections of chemical bulk storage tanks with the help of private contractors. The agency is also behind on rewriting regulations for chemical and petroleum bulk storage because of staffing shortages in the Office of General Counsel and in the Environmental Remediation program, according to Bayer.

Consequently, the Public Employees Federation is telling lawmakers that the current moratorium on hydraulic fracturing should continue until it is certain that the DEC has adequate staff. Doug Curella, Chief of Staff for Senator Mark Grisanti (R), Chair of the State Senate Environmental Conservation Committee, concurs: “It’s important that the DEC is properly staffed before we begin the conversation. They have historically lost a lot of staff.”

Where is the Money?

How will the state pay for new staff and other resources needed to manage hydraulic fracturing in the midst of a budget crisis? The DEC says that the Governor’s advisory panel on hydraulic fracturing is looking at ways the state can generate revenue from the gas industry, including fees and possibly a severance tax. Emily DeSantis adds that, “we have repeatedly said we will only review the number of permits that we can responsibly oversee given staffing levels.”

This position was echoed by Cherie Messore, spokesperson for the Independent Oil and Gas Association of New York (IOGA), an industry trade association. When asked about DEC’s capacity, Messore responded that “the DEC will only grant as many permits as can be prudently and responsibly supervised. And we’ve always been an advocate for the DEC to be properly staffed to be able to do its work well.”

Messore said that the association was not in a position to comment on the Cuomo administration’s exploration of taxing the oil and gas industry to raise revenue. Accurately assessing the impact of targeted taxes or fees on the state’s budget may not be a simple matter. Assemblymember Richard Gottfried (D), Chair of the Assembly’s Health Committee, points out that “since dollars are fungible, it’s always hard to measure whether dollars from a special tax are used to pay for staffing, or just to replace dollars that were lost.”

As the environmental review process continues and questions mount, is hydraulic fracturing becoming a political liability for the Cuomo administration? Democratic Assemblymember Robert K. Sweeney, chair of the State Assembly’s Environmental Conservation Committee, told Gotham Gazette, “It has been a political problem all along and it is becoming more so all the time. I have colleagues who are having second thoughts about the whole thing- the opposition is growing steadily and is more vocal. The potential problem for the administration is that the first time something bad happens –and something bad will happen- it will reflect directly on the Governor.”

Public hearings last November on the draft report and drilling regulations attracted 6,000 attendees and standing room only crowds both upstate and downstate. Drilling opponents visibly outnumbered supporters at the Sullivan County and NYC hearings, and The Wall Street Journal reported that opponents outnumbered supporters by 4 to 1 at a large hearing in Binghamton, which is situated in the Southern Tier.

The oil and gas industry maintains that the Governor’s plan has strong support among hard hit farmers and other landowners in the Southern Tier. Cherie Messore of IOGA observes that “when you look at the most recent polls, they are definitely very split. The areas that will be most affected by hydrofracking, in the Eastern-Southern Tier of the state, are the most supportive. People are seeing the jobs and prosperity and the good things that are happening in Pennsylvania. We’d like to see that prosperity come into New York State.”

What will the DEC determine after it absorbs the 46,000 comments it received from New Yorkers regarding their views on hydraulic fracturing? And can the DEC comprehensively manage hydraulic fracturing and protect the safety of the state’s drinking water at the same time? Scott Reif, spokesman for the State Senate Republicans, asserts that “If it can be done safely and responsibly than (Senate Leader) Dean Skelos would support it. Every indication is that the DEC can do it.” When asked if he could specify what “every indication” meant, Reif replied, “If the DEC believes that they can do this, then we are supportive.” Assemblymember Robert Sweeney is less certain. “The Governor has oversight of the DEC. The Legislature has oversight. They feel that they have some handle on it. One can only hope that if the time comes, the DEC will be prepared.”

The Council Tackles Corporate Personhood, Transparency, and the Budget

Photo by Jane C. Timm

The City Council got the Occupy Wall Street treatment today during their debate on a resolution that will support ending corporate personhood

Approximately 20 supporters of the resolution — which OWS asked supporters to attend City Council for via social media the day before — cheered on the bill, while dissenting Councilmen were booed and hissed from the observation balcony during the Council’s debate. Resolution 1172 expresses the Council’s support of the U.S. Congressmen who are seeking to overturn a Supreme Court decision that said that corporations and people share the same free speech rights and with it, the unrestricted ability to lobby politicians. The City of Los Angeles recently passed a similar bill.

Corporations can't "laugh or cry," said the resolution’s sponsor Councilman Brad S. Lander speaking on the Council floor. "It's not an issue of left or right, it's an American issue."

Though Occupy Wall Street has certainly garnered the issue more attention, Lander told Gotham Gazette the Council’s interest in corporate personhood predates the Occupy movement.

Councilman Eric Ulrich spoke against the resolution.

“Corporations are people. All their money goes back to the people,” he said, before being hissed and booed by onlookers so much that Council Speaker Christine Quinn extended his speaking time.

The vote was mostly along party lines with 41 yes-votes from Democrats, five no-votes from all five Council Republicans (Councilmen Dan Halloran, Vincent Ignizio, Peter Koo, James Oddo, and Ulrich), and one abstention from Councilman Peter Vallone, a Democrat.

The Road to Transparency

The Council again voted to empower New Yorkers by increasing transparency.

Following last month’s vote to notify parents and employees about testing for the dangerous chemical PCB in schools, the City Council voted unanimously today to give New Yorkers “TIPS” — Transparency In Paving Streets — which requires the Department of Transportation to disclose information on their rating of city streets, the dates of past repair and pavement, and plans for future repaving.

Speaker Quinn noted that Community Boards rank streets and areas in New York that need to be addressed and report to the DOT. Transparency about how city streets are ranked and when they were last paved is crucial to helping citizens advocate for their own streets Quinn said.

Budget Balancing

In the first stated meeting of the New Year, the Council also rejected three of the Mayor’s proposed budget cuts for the Fiscal Year 2012 budget.

The first rejected cut was a $730,000 cut to the Office of the Chief Medical Examiner which the Council says would have created delays in processing DNA tests in rape test kits and other forensic evidence in criminal proceedings. The other rejected cuts were a 1.5 million cut to the New York City Health and Hospitals Corporation’s operating subsidy, and cuts to two after-school programs.

These cuts would have had a “very negative impact on New Yorkers,” Quinn said.

The sole dissenting vote against the passage of the Mayor’s budget cuts was Councilman Charles Barron who criticized the Council for approving layoffs and attrition job cuts and criticized his colleagues for supporting the “99 percent” on the street but voting against them “inside [the Council Chambers].”

The approved budget includes hundreds of job cuts to the Departments of Sanitation, Cultural Affairs, and Health and Mental Hygiene.

Also On the Agenda

The Council also passed a bill that will regulate the sale of carpets, ensuring that there are no harmful chemicals in carpets sold or installed in New York City. These chemicals, which contribute to “sick building syndrome” are said to affect 30-70 million Americans.

The Council also voted on three resolutions that call on the Congress to further regulate gun control in the United States.

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