An October lawamended 2017 legislation requiring establishment of drinking wateremerging contaminant notification levels. The amended law requiresthe New York Department of Health (DOH) to make information aboutnotification levels easily accessible through the DOHwebsite. (Photo: iStock)

In 2018, New York State enacted a Drug Take Back Act in responseto environmental and public health concerns about improper disposalof unused drugs. Another enactment gave the Department of Health(DOH) greater discretion in enforcement actions against landlordsthat do not take adequate action to abate lead paint.

Related: Reducing risk in environmental liabilitypolicies

Other new laws tinkered with legislation enacted in 2017 toprotect drinking water and to promote clean energy and energystorage. In addition, Governor Andrew M. Cuomo signed lawsconcerning farmland and pollinator protection. In New York City, astyrofoam ban went into effect on Jan. 1 after courts rejected achallenge to city determinations underlying the prohibition.

This annual survey reports on these developments and otherenvironmental laws enacted in 2018.

Drug Take Back Act

Many leftover drugs are flushed down the toilet, and somecontaining opioids are improperly used. In July, Governor Cuomosigned the Drug Take Back Act (ch. 120) requiring drugmanufacturers to implement take back programs for “covered drugs.”Take back programs must provide “convenient, ongoing collectionservices” and ensure access in rural and under-served areas.

Manufacturers also must explain how covered drugs will be safelyand securely tracked and handled from collection through finaldisposal and destruction. They also must reimburse the costs ofpharmacies and other collectors.

Drinking water

An October law amended 2017 legislation requiring establishmentof emerging contaminant notification levels. The amended lawrequires DOH to make information about notification levels easilyaccessible through the DOH website (ch. 314). (On Dec. 18, theDrinking Water Quality Council took a step towards establishment ofmaximum contaminant levels (MCLs) for three emerging contaminants,1,4-dioxane, perfluorooctanoic acid and perfluorooctanesulfonicacid.)

The 2018-19 budget legislation added specific requirements forannual reports by the Department of Environmental Conservation(DEC) on the solid waste mitigation and drinking water responseprograms established by the 2017-18 budget bill (ch. 58, partAA).

Other 2018 laws concerning water quality included an extensionof a long-standing interest rate subsidy for municipal waterpollution control projects financed through the Clean Water StateRevolving Fund (ch. 250). Another law authorized Long Island localgovernments to enact laws requiring monitoring of groundwaterimpacts from mining or mine reclamation (ch. 298).

Another law requires Long Island water purveyors and authoritieswith 10,000 or more customers to provide information on water usageto customers (ch. 470).

Energy

In October, a new law amended 2017 legislation that establishedan affordable residential green building program. The new law (ch.311) directs the New York State Energy Research and DevelopmentAuthority (NYSERDA) to prepare a study of financial incentives foraffordable residential green building to foster an understanding ofthe incentives' benefits before committing additionalresources.

While the 2017 law authorized NYSERDA to provide incentives, the2018 law instead authorizes NYSERDA to provide “information andresources” to developers and other parties. Also in October,Governor Cuomo signed a law (ch. 297) directing NYSERDA to conducta study of the feasibility of high-performance energy efficiencymeasures in commercial office space.

A 2017 law that codified an energy storage deployment programalso was amended in 2018. The 2018 law (ch. 324) required thePublic Service Commission (PSC) to establish a 2030 energy storagegoal and a deployment policy by the end of 2018. (The PSC did so inDecember, adopting an energy storage goal of 3,000 megawatts by2030, as well as a strategy to address barriers to energy storagedevelopment.) A second law signed in December requires acompetitive process for any procurement of energy storage systems(ch. 417).

Laws were also enacted to create, expand, or extend taxincentives for clean energy and energy storage, including:

• expanding the 15-year property tax exemptionfor certain types of energy systems to include properties withfuel-flexible linear generator electric generating systems (ch.325);
• extending the deadline for the solar electricgenerating system real property abatement in New York City(ch. 327); and
• establishing a property tax abatement for electricenergy storage equipment in New York City (ch. 412).

In November, the governor signed a law giving theNYC Taxi and Limousine Commission (TLC) more flexibilityto determine what hybrid and electric vehicles can qualify astaxicabs. Instead of requiring the TLC to permit all hybridelectric and electric models of vehicles that meet all for-hirevehicle requirements to be used as taxicabs (as a 2017 law did),the new law (ch. 339) instead requires the TLC to approve one ormore hybrid electric vehicle models for taxicab use. The TLC mustalso permit 1,350 medallions to use any hybrid electric vehiclemodel.

Land preservation, farmland protection, and land banks

The 2018-19 budget legislation expanded the Central Pine Barrenson Long Island and added parcels in Shoreham and Mastic Woods tothe core preservation area (ch. 58, part CC). The legislation alsorequires Suffolk County to prepare an inventory of propertiessuitable for solar projects. These provisions were a compromisethat resolved a dispute regarding development of solar facilitiesin the vicinity. In December 2017, Cuomo vetoed an earlier billthat would have added lands to the Central Pine Barrens andprevented a solar facility from being constructed.

Another law explicitly authorized the Albany Pine Bush PreserveCommission to acquire real property (ch. 449).

In July, the governor signed a law (ch. 158)authorizing state assistance payments for projects that include“farmer-purchaser farmland protection agreements.” Such agreementsare intended to ensure that farmland is affordable to purchaserswho intend to continue commercial agricultural production.

The state also expanded the maximum number of land banks to 35(ch. 508). The legislative memorandum indicated that the state wason the verge of reaching the existing cap of 25. The memorandumsaid land banks “are effective in repurposing so-called 'zombieproperties' to give them second life.”

Public health

In April, Cuomo signed a law giving DOH the authority to takewhatever enforcement action it “deemed appropriate” when landlordsfail to comply with DOH demands for remediation of paint conditionsconducive to lead poisoning (ch. 20). The 2018 provisionreplaced a requirement added in 2017 for a formal hearing in allcases. Another law signed in April requires an annual reportidentifying New York City Transit Authority capital projectsinvolving removal of existing lead-based paint from, and therepainting of, above-ground infrastructure (ch. 18).

A law signed in December creates a radon task force to conduct astudy and make recommendations for reducing New York residents'radon exposure (ch. 414).

Pollinator protection

On Dec. 7, Cuomo signed a bill authorizing the Department ofAgriculture and Markets (AGM) to develop guidelines for vegetationmanagement plans for persons making claims that their property orbusiness — including solar electric generating systems — is“pollinator friendly” (ch. 399). In an approval memorandum,however, the governor indicated that he and the legislature hadagreed to amend the law in 2019 to authorize AGM to make existinginformation available rather than to develop new plans “atsignificant expense.”

Regulatory process

The minimum comment period for revised rulemakings involving“substantial revision” to a previously proposed rule was increasedto 45 days from 30 days (ch. 408).

Styrofoam ban

In New York City, a ban on styrofoam food service items andpacking peanuts took effect on January 1. The city announced thatthe ban would take effect after it prevailed in litigationchallenging its determination that styrofoam articles could not berecycled in an environmentally effective and economically feasiblemanner. Restaurant Action Alliance NYC v. City of NewYork, 165 A.D.3d 515 (1st Dept. 2018). Enforcement of the banwill begin on July 1.

Other laws and a veto

The budget legislation again postponed the deadline (to Dec. 31,2019) for state-owned or -operated diesel-powered heavy-dutyvehicles to utilize best available retrofit technology (ch. 58,part NN). In addition, the budget legislation revised the BottleBill statute to allow the sale of beverage containers connected toeach other by a separate plastic holding device that meetsspecified requirements (ch. 58, part PP).

New laws also eliminated a lower certification fee for certaincommercial pesticide applicators (ch. 58, part OO) and extended NewYork's “minor repair program” for pesticide containers through July1, 2020 (ch. 94). (The program allows retailers to avoid disposalof pesticides in damaged containers if they repair the containersin accordance with a U.S. Environmental Protection Agency repairpolicy.) The state also extended for two more years the revival oftime-barred actions brought by Vietnam War veterans for injury ordeath caused by Agent Orange exposure (ch. 82).

In December, the governor vetoed a bill that would have requiredDEC to prepare a study of food waste initiatives (S8693). Thegovernor said the bill would have required expenditure of“significant resources” to study an issue that was already “wellknown to the state.” 

Related: Is the environmental market too low-priced for itsown good?

Michael B. Gerrard is a professor and Director ofthe Sabin Center for Climate Change Law at Columbia Law School, andSenior Counsel to Arnold & Porter. Edward McTiernan, formerlygeneral counsel of the New York State Department of EnvironmentalConservation, is a partner with Arnold & Porter. L. MargaretBarry of Arnold & Porter assisted in the preparation of thisarticle.