Legislative Report from the
NYS Assembly Committee on
Sheldon Silver, Speaker • Robert K. Sweeney, Chair • Winter 2011
In 2011, the Assembly Standing Committee on Environmental Conservation continued its
oversight of environmental issues by holding hearings to examine the following issues: the
potential health effects of hydraulic fracturing; invasive species; Suffolk County water quality;
the Department of Environmental Conservation’s proposed revised draft SGEIS governing
natural gas drilling; and toxic chemicals in children’s products.
Health Effects of Hydraulic Fracturing
Hydraulic fracturing involves the high-pressure injection of water and chemicals into rock to
stimulate the production of oil and gas. A number of concerns regarding the potential health
effects of exposure to such chemicals have been raised.
On May 26, 2011, the Committee, in cooperation with the Assembly Committee on Health, held a hearing to examine those potential health effects. Testimony was presented by a variety of witnesses including an endocrinologist, ecologist, chemist, pediatrician, toxicologist, and petroleum engineer.
Prevention of the Introduction of Invasive Species
On September 13, 2011, the Committee held a hearing to solicit public input on the best methods for preventing the introduction of invasive species and combating those invasive species already present in the State.
Chapter 674 of the Laws of 2007 created the New York Invasive Species Council and Invasive Species Advisory Committee. These entities were charged with developing a four-tier classification system for non-native animal and plant species. This hearing examined a report issued by the Council that proposed such a classification system as well as other issues related to the introduction of invasive species, methods to combat the invasive species already present, and the effectiveness of State funding, including the Environmental Protection Fund monies. Testimony was presented by a variety of witnesses including the United States Fish and Wildlife Service, the United States Department of Agriculture and Markets, the Department of Environmental Conservation (DEC), scientists and environmental groups.
DEC’s Proposed Revised Draft Supplemental Generic Environmental Impact Statement on Gas Drilling
On September 30, 2009, the New York State Department of Environmental Conservation (DEC) released a Draft Supplemental Generic Environmental Impact Statement (DSGEIS) regarding well permit issuance for horizontal drilling and high-volume hydraulic fracturing to develop the Marcellus shale and other low-permeability gas reserves. DEC received thousands of comments in response and on September 7, 2011, released a revised DSGEIS. The purpose of this hearing was to solicit public input on the revised DSGEIS. Testimony was presented by a variety of witnesses including the United States Geological Survey (USGS), DEC, New York State Petroleum Council, environmental groups and concerned citizens.
Assemblyman Bob Sweeney received the 2011 Equinox Award from Citizens Campaign for the Environment (CCE) for his “environmental leadership to enforce critical protection of our air, land, water, and public health.”
Sweeney is pictured (at right) with CCE Executive Director Adrienne Esposito and award recipient Josh Fox, Director of the Academy Award nominated film Gasland.
Suffolk County Water Quality
The draft Suffolk County Comprehensive Water Resources Management Plan was released recently to “enhance the understanding of the County’s aquifer system and its relationship to the County’s surface waters, to assess the relationships between water quality and land use, to identify groundwater, drinking water supply and surface water issues facing Suffolk County in the near term and the long term, and to present the framework for a program to guide future resource protection efforts and management decisions.”
On September 27th a hearing was held in the Town of Babylon to solicit input on the Suffolk County report and to examine issues related to the protection of water resources in Suffolk County. Testimony was presented by a variety of witnesses including the Suffolk County Water Authority, scientists and environmental groups.
Toxic Chemicals in Children’s Products
In 1976 the federal government enacted the Toxic Substances Control Act (TSCA) with Congress, finding “[A]dequate authority should exist to regulate chemical substances and mixtures which present an unreasonable risk of injury to health or the environment and to take action with respect to chemical substances and mixtures which are imminent hazards...” Despite the passage of over 30 years, the significant growth in the number of new chemicals, and the development of new health information indicating that certain populations, such as children, are subject to additional risks from chemical exposure, TSCA has remained largely unchanged.
Laws governing children’s products were modified when Congress passed the Consumer Product Safety Improvement Act of 2008 (CPSIA) that provided the Consumer Product Safety Commission with additional powers and included mandatory third party testing for certain children’s products, standards for durable nursery products, and a prohibition on the sale of certain products containing specified phthalates.
An increasing number of states have begun their own chemical regulation programs. Some states, such as Maine and Washington, have adopted a regulatory framework in which all chemicals that meet certain health and environmental criteria are banned. Other states, including New York, have adopted a chemical-by-chemical approach, focusing primarily on children’s products. Assembly bill 3141 represents a departure from this approach and would apply the regulatory framework approach to products in New York.
On December 5th the Environmental Conservation Committee, in cooperation with the Assembly Committees on Health and Consumer Affairs and Protection, held a hearing to solicit input on how best to regulate the use of chemicals in children’s products in New York State. Testimony was presented by a variety of witnesses including environmental and consumer groups as well as industry representatives.
Summary of Bills Signed into Law
Protecting New York’s Ground and Surface Water Resources – Chapter 401 of the Laws of 2011 (A.5318-A Sweeney): New York State has an abundant supply of water, and it is our collective responsibility to ensure that this precious resource is preserved and protected. An ample amount of clean potable water is a vital economic resource for New York’s residents and businesses including water to support agriculture, manufacturing, and other industries, as well as recreation in the State. Good policy and sound natural resource management practices both on the land, underground, and in bodies of water are critical to assuring long-term supplies of water to meet these needs.
Pursuant to Environmental Conservation Law Article 15, DEC has been entrusted with the responsibility to conserve and control New York State’s water resources for the benefit of all the inhabitants of the State. However, the water supply provisions of Article 15 derive primarily from outdated statutes written in the first half of the last century. Moreover, since the provisions of Article 15 were enacted, population growth and increased use of water for commercial, industrial and other purposes have resulted in substantially increased demands on the State’s water resources. In addition, potential impacts from climate change, and proposals to export vast amounts of water from New York to other states and abroad could pose new threats to the State’s water supply. These and other issues have served to highlight the limitations on the State’s water resources program and DEC’s limited ability to regulate water withdrawals. In order to provide greater water resource protection, this law authorizes DEC to implement a permitting program for all water withdrawal systems with a capacity equal to or greater than 100,000 gallons per day. This law will also allow New York to meet its obligation to implement a regulatory program for water withdrawals in the Great Lakes Basin.
Restrictions on the Sale of Mercury-Added Products – Chapter 20 of the Laws of 2011 (A.668 Jaffee): Mercury has been proven to impair brain development. The Centers for Disease Control and Prevention estimate that between 300,000 and 630,000 infants each year are born in the United States with mercury levels high enough to be associated with IQ loss. When products containing mercury are discarded, they often enter the waste stream, polluting soil, drinking water sources, and aquatic habitats.
A law enacted in 2004 authorized a ban on certain mercury-containing products (i.e. thermostats) upon a finding by the Department of Environmental Conservation (DEC) that there were mercury-free alternatives. At a hearing held by the Assembly Environmental Conservation Committee in 2009, DEC testified that they were unable to make such a finding because of the myriad of products available. Other states, including Maine and Wisconsin, have adopted bans without requiring such an affirmative finding. This legislation follows those models and better reflects the intent of the 2004 legislation by banning mercury-containing products when there are mercury-free alternatives.
Prohibition on the Commercial Taking of Certain Seahorses – Chapter 81 of the Laws of 2011 (A.2439 Englebright): Long Island’s south shore estuaries provide habitat for the northern or lined seahorse (Hippocampus erectus) during the warmer months of the year. The Northern seahorse can be common in the Great South and Moriches Bays during the summer where it concentrates in vegetated areas.
Seahorses are routinely collected for commercial purposes, including use as aquarium fish, traditional Chinese medicines and ornamental displays and curios. Because they are slow-moving or attached to eelgrass they can be captured easily with seine nets. Seahorses are very difficult to keep alive in captivity. Little is known about their overall abundance or population trends so it is unclear whether they can sustain the level of harvest to which they are currently being subjected. This legislation would prohibit the taking of Northern or Lined seahorses for commercial purposes.
Prohibition on the Sale of Child Products Containing the Flame Retardant Tris – Chapter 259 of the Laws of 2011 (A.6195 Sweeney): Tris is the common name for a family of chlorinated flame retardants. On April 8, 1977, the United States Consumer Product Safety Commission banned the sale of any children’s clothing containing the flame retardant chemical Tris phosphate (Tris-BP). The ban came after a two-year study by the National Cancer Institute showed that Tris causes cancer in test animals and could be absorbed by children through the skin or mouthing of Tris-treated clothing. The ban on the use of Tris applied only to children’s clothing, and because of the comparatively low cost of Tris, other forms of Tris including Tris (2-chloroethyl) phospate (TCEP) are used increasingly in baby gear, including strollers, nursing pillows and rocking chair foam.
A report published by the Environmental Protection Agency titled “Environmental Profiles of Chemical Flame Retardant Alternatives” contains details regarding several flame retardants that represent a low health hazard concern. These flame retardants would potentially serve as a better alternative to Tris.
This bill would prevent the sale of child care products containing Tris (TCEP) after December 1, 2013, in order to eliminate possible exposure risks for children through skin contact or mouthing.
Laws that Took Effect Recently
Electronic Waste Recycling – Chapter 99 of the Laws of 2010: Electronic waste represents one of the fastest growing and most hazardous components of New York’s waste stream, containing many toxic substances, including lead, mercury, chromium, cadmium, polyvinyl chloride and beryllium. As new devices are purchased, the replaced equipment frequently ends up in a landfill where its chemical components can contribute to pollution. There are direct environmental and public health consequences for New York State residents and workers from the improper handling and disposal of electronic waste, but prior to the enactment of the “E-waste law,” there was no comprehensive system for managing the growing problem of electronic waste in the State.
The law, which took effect on April 1st, created an electronic recycling and reuse program whereby manufacturers of certain covered electronic equipment became responsible for the collection, handling and recycling or reuse of returned electronic equipment. Covered electronic equipment includes computers, televisions and printers.
The Department of Environmental Conservation website includes information on the various programs of electronic manufacturers.
Rechargeable Battery Recycling – Chapter 562 of the Laws of 2010: Although rechargeable batteries can reduce waste and energy use because of a longer lifespan than non-rechargeable batteries, they often contain toxic metals, such as cadmium. As a result, when not discarded properly, rechargeable batteries can pollute the environment.
This law, which took effect this December, establishes a statewide recycling program and prohibits the disposal of rechargeable batteries in a landfill. Consumers will be able to return up to 10 rechargeable batteries per day, free of charge, to retailers who sell rechargeable batteries of a similar size and shape. Such returns could be made regardless of whether or not a battery purchase was made from the retailer; however, consumers would also be able to return additional rechargeable batteries if more are purchased. Retailers will be required to dispose of such batteries pursuant to a collection program established by battery manufacturers.
Assemblyman Bob Sweeney is presented the prestigious Pine Barrens Association’s “Outstanding Contribution to Long Island’s Environment Award,” by Pine Barrens Association Executive Director Richard Amper, and the co-host of Pine Barrens Association Television, Kathy Nasta, for his commitment to sound environmental policy and action.
Natural Gas Drilling
The Committee has continued to focus on issues related to natural gas drilling this year. In May, the Committee, in cooperation with the Assembly Committee on Health, held a hearing to examine potential health impacts associated with hydraulic fracturing.
On July 11, 2011, DEC released a revised Draft Supplemental Generic Environmental Impact Statement (DSGEIS) regarding well permit issuance for horizontal drilling and high-volume hydraulic fracturing to develop the Marcellus shale and other low-permeability gas reserves.
Shortly following the Department’s release of the revised DSGEIS and draft regulations, Assemblyman Sweeney, as Chair of the Assembly Standing Committee on Environmental Conservation, and over 40 of his colleagues sent a letter to the DEC Commissioner requesting that the comment period for both documents be extended from 90 days to 180 days. The letter explained that providing additional time would allow concerned individuals the opportunity to fully read and understand the complex documents and give those living in areas affected by tropical storms Irene and Lee the opportunity to be advocates for themselves. (Many of the same areas affected by the flooding are also in the same geographical region that drilling is proposed.) The Department initially proposed to close the public comment period on December 12, but subsequently extended the comment period until January 11, 2012.
The Assembly also passed the following legislation:
(A.7400 Sweeney) – This bill would suspend, until June 1, 2012, the issuance of new permits for natural gas or oil drilling involving hydraulic fracturing. This legislation passed the Assembly, but the Senate has not yet taken action.
(A.7013 Sweeney) – Currently, the regulations promulgated by the Department of Environmental Conservation that govern the waste produced by the oil and natural gas industries exempt “drilling fluids, produced waters, and other wastes associated with the exploration, development or production of crude oil, natural gas or geothermal energy” from being regulated as hazardous waste. This legislation would supersede that regulation and ensure that when waste from these operations meets the definition of hazardous waste, that it be treated in a manner consistent with other hazardous wastes. This legislation passed the Assembly, but the Senate has not yet taken action.
(A.3245 Lifton) – In 1981, the Environmental Conservation Law was amended to provide local governments with the explicit authority to regulate local road use activities associated with natural gas and oil drilling. That legislation also made clear that local governments maintained their authority under the Real Property Tax Law; however, it did not include a specific reference to municipal zoning power. As a result, the ability of local governments to enforce zoning laws was challenged. The NY Court of Appeals concluded that zoning ordinances do not “relate to the regulation” of the industry, as prohibited by the Environmental Conservation Law, but rather regulate the location, construction and use of buildings and land within the town. This legislation would clarify that local governments have the authority to enact local zoning laws that pertain to the natural gas and oil drilling industries. This legislation passed the Assembly, but the Senate has not yet taken action.
Each year the Green Panel, consisting of more than a dozen environmental groups, identifies bills of special significance known as “super bills.” This year the following Environmental Conservation Committee bills received super bill status:
A.5318-A (Sweeney) – would require users of 100,000 gallons of water per day to obtain a permit from DEC in order to protect New York’s water supply and comply with the Great Lakes Basin Compact. This legislation passed the Assembly and the Senate and was signed into law as Chapter 401.
A.5346 (Sweeney) – would require reductions in greenhouse gas emissions in New York State, with the goal of an 80 percent cut in total emissions by the year 2050. This legislation passed the Assembly, but the Senate has not yet taken action.
A.7013 (Sweeney) – would require that waste resulting from gas drilling be treated as hazardous waste, if such waste meets the definition of hazardous waste in the Environmental Conservation Law. This legislation passed the Assembly, but the Senate has not yet taken action.