On Tuesday Mayor Michael Bloomberg announced New York City’s solicitation for proposals to construct a waste-to-energy facility near or within New York City, a decision that reflects the mayor’s intention, announced in the 2012 State of the City address, to “explore the possibility of cleanly converting trash into renewable energy.” 1 The proposed facility will be a pilot program, processing at most 450 tons of waste per day but capable of doubling capacity if successful. According to the mayor’s press release, conventional incineration facilities are excluded from consideration, limiting eligible proposals to emerging waste-to-energy technologies. The mayor is seeking jobs, energy independence, reduced greenhouse gas emission and—most importantly—reductions in the city’s solid waste management costs. The city currently spends about $1 billion per year to manage solid waste—a cost that is certain to grow as landfills in the United States close.2

To realize these goals, however, the city must confront the challenges of siting such a facility in one of the city’s 59 neighborhoods, which have consistently and often successfully fought new solid waste facilities for over two decades. Any proponent of a new waste-to-energy facility may also need to navigate the state’s new licensing process for electric generating facilities, which is expected to become applicable this year after implementing regulations are finalized.

Background

At one time, New York City relied on 32 municipal waste incinerators and at least 35 municipal landfills to manage its solid waste. Those facilities were phased out beginning in the 1960s, and by 1994 there were no incinerators and only one landfill remaining in five boroughs. Bucking this trend, however, in 1979 Mayor Ed Koch proposed the construction of a new incinerator at the Brooklyn Navy Yard. Community groups successfully fought this proposal until 1996, when Mayor Rudolph Giuliani signed a bill prohibiting construction of the Navy Yard incinerator and requiring closure of Fresh Kills Landfill on Staten Island—the last in the city.

Since the closure, almost all the city’s commercial and residential waste has been trucked to out-of-state landfills at great financial and environmental expense. The city’s 2006 Solid Waste Management Plan (SWMP) tried to expand the options for handling waste by planning for more recycling, composting and out-of-state shipment by barge rather than truck. But New York City and its private waste haulers continue to truck the vast majority of the city’s waste to out-of-state landfills.

Cleaner Alternatives

During the course of the Navy Yard Incinerator debate, the regulatory landscape for incinerators changed. In the early 1990s, Congress and the Environmental Protection Agency (EPA) drastically curtailed allowable incinerator emissions.3 This rule change helped bring about a 96 percent reduction in mercury emissions between 1990 and 2005 and a 99 percent reduction in dioxin emissions.4

The U.S. Supreme Court also resolved the issue of “toxic ash” from incinerators in 1994. Prior to 1994, incinerators had relied on the household waste exemption in the U.S. Resource Conservation and Recovery Act (RCRA) when disposing of incinerator ash. But the Supreme Court held that incinerator ash with hazardous waste characteristics must be disposed of as hazardous waste in accordance with RCRA.5 The environmental concerns that surrounded the 1985 proposal may therefore no longer be valid.

While nearly all existing waste-to-energy facilities in the United States create electricity by burning waste, emerging technologies provide alternative electricity production methods. Thermal processes (e.g., gasification and plasma) involve heating the waste to release gases that are then burned to create electricity. Separating the solids from the gases prior to combustion eliminates most ash and other particles from the exhaust. Anaerobic digestion uses municipal waste as a food source for microbes that thrive in oxygen-free environments, converting organic waste into methane gas, among other things, which is then burned to generate electricity. Hydrolysis involves immersing the waste in acid to create sugars that can then be fermented to produce ethanol, which can be sold or used as fuel for energy production.

Each of these emerging technologies further reduces the potential for adverse environmental effects.6And they are arguably consistent with the state’s solid waste management policy, which creates a hierarchy of solid waste management methods that include, from most to least preferable: (1) reduce waste; (2) reuse or recycle or compost; (3) recover energy from solid waste that cannot be reused or recycled; and (4) landfill or burn.7 New York City’s current SWMP concluded that it was not a realistic alternative to site, permit and build a new commercial-scale waste conversion facility in the New York City region in the near term of the next five years.8 The city’s next SWMP is due in 2016 and, based on recent statements from local officials, is likely to re-visit this conclusion.

Article 10

The state’s renewal of Article 10 of the Public Service Law in 2011 will both help and hurt the effort to site a waste-to-energy facility in New York City. From 1992 to 2003, Article 10 created the exclusive process for licensing electric generating facilities of 80 megawatts or more in New York State. The Siting Board of the Public Service Commission oversaw the process and issued certificates of public need and necessity to successful applicants. The board had the authority to waive compliance with other state and local requirements and permitting processes on a case-by-case basis. Facilities that generated fewer than 80 megawatts (MW) were subject to normal state and local approval processes, however, including the State Environmental Quality Review Act (SEQRA) and local zoning. When Article 10 expired in 2003, SEQRA, zoning and other state and local laws applied without restriction to all power plants—a development that many municipalities and residents welcomed.

Since the existing waste-to-energy facilities in New York are each below the 80 MW threshold, Article 10 would not have applied to them. The prior version of Article 10 also contained an exemption for facilities that generated electricity from solid waste—an exemption conspicuously lacking in the 2011 version. Whether the amended Article 10 will apply to a new waste-to-energy facility depends on its size and use of its electricity. Article 10 applies to all new facilities with a nameplate capacity of 25 MW or more that sell power to the electricity grid. At least a few of the 10 existing waste-to-energy facilities in New York meet this threshold. Even a relatively small conventional waste-to-energy facility processing as little as 1,000 tons per day would likely be subject to Article 10.

On the positive side for new electric-generating facilities, Article 10 is intended to provide a streamlined review process with four phases: the formalized pre-application phase, the application phase, the administrative hearing and the decision. Identification of environmental or health effects, mitigation of those effects, and reasonable alternatives must all be identified in the pre-application phase. The process is intended to address all legal and environmental issues and stakeholder concerns in one forum overseen by the siting board constituted for the particular application.

On the challenging side, Article 10 requires a heightened consideration of environmental justice (EJ), community impacts and alternatives. Unlike SEQRA, which requires disclosure but not necessarily action on environmental justice, Article 10 requires proponents to avoid, offset or minimize impacts on EJ communities through “verifiable measures.” Article 10 also requires a full exploration of alternative locations and solid waste management options (i.e., continued landfilling and recycling). In addition to the alternative proposed by the applicant, the intervenors or the siting board may also propose alternatives, and the siting board may make a preliminary finding on the adequacy of the consideration of alternatives before addressing other issues.9

One recent event is a potent reminder of challenges that waste-to-energy will face inside or outside the new Article 10 process. In 2011, the commission received an application to add waste-to-energy facilities to the list of projects that qualify as “renewable” under the state’s renewable portfolio standard, which calls for the New York State Energy, Research & Development Authority to help the state produce 30 percent of its energy from renewable sources by 2015.10 The commission promptly received thousands of comments in opposition, and the application was withdrawn on Dec. 8, 2011.

Best Practices

Successfully siting a waste-to-energy facility will involve conducting a rigorous environmental impact review; choosing the proposed location carefully; and building strong community support. Year after year, New York courts reject legal challenges to projects where a complete environmental impact statement has been prepared under SEQRA. This includes solid waste management facilities like the proposed waste-transfer station on the East River at East 91st Street, which residents repeatedly and unsuccessfully challenged in court. New York courts are likely to be deferential to electric generating facilities where they feel that a thorough environmental review has taken place whether pursuant to SEQRA or Article 10.

With regard to location, Article 10, once effective, will bar municipalities from separately regulating electric generating facilities.11 But local laws still matter—a lot. Applicants must demonstrate to the Public Service Commission whether and how a proposed facility will comply with local laws or, if not, why the commission should permit exceptions. Moreover, municipalities are mandatory participants in the hearing process.

The New York State Department of Public Service has recently released its draft of Article 10 regulations for public comment and they underscore the important role that members of the public and municipalities will play in the commission’s review process. Selecting a site where waste-to-energy facilities would be as-of-right (if possible) is therefore recommended. Applicants should also consider choosing a brownfield site, which may provide access to tax credits offered through the New York State Brownfield Cleanup Program. If Article 10 does not apply to the facility, local laws will govern. In New York City, this may include compliance with the City Environmental Quality Review (CEQR) regulations and the CEQR Technical Manual, the Uniform Land Use Review Procedure (ULURP), and Fair Share regulations (which seek equity among neighborhoods in siting municipal facilities). Most important, the facility will be subject to local zoning controls.

In New York City, siting will be complicated by the dwindling number of manufacturing zones. In the past 10 years, the City Planning Commission has undertaken extensive (and in some cases long overdue) zoning changes in industrial areas to eliminate some “M” zones and open up vast areas to residential and commercial uses. The result is a 20 percent reduction in dedicated manufacturing zones in New York City.12 This figure does not account for the ad-hoc erosion of industrial zones where the city has allowed a large number of new parks and residential uses to be sited in the past 10 years.

With fewer dedicated manufacturing zones and more mixed use districts, siting heavy industrial facilities has become tougher. According to the Waste-to-Energy Research and Technology Council, housed at Columbia University, facilities ideally require 25 acres to accommodate truck queuing within the project site.13 With the exception of the west shore of Staten Island, this is likely to be a challenge in New York City. It also suggests that waterfront sites that can accommodate barge transport and minimize truck traffic will have preferential treatment.

Finally, proponents must develop strong plans for building community support. Article 10 creates a formal role in the review process for residents within five miles of a proposed facility and certain nonprofit organizations.14 And the amended Article 10 preserves the “intervenor account” that is paid by the applicant to defray costs incurred by municipalities, nonprofit organizations and municipalities in participating in the review process.15 If the facility is under 25 MW, local laws—particularly ULURP and Fair Share—provide their own process for seeking community input and developing project alternatives.

Addressing valid community concerns is therefore vital. One way to accommodate such concerns is through “community benefit agreements,” which are typically negotiated outside the formal permitting processes with key community stakeholders and elected officials. These agreements can be highly controversial and are largely untested in courts, but they remain a regular part of development in New York and will likely play a key role in developing community support for a waste-to-energy facility.

Conclusion

The deep public concerns about waste-to-energy facilities are rooted in a history of incinerators that is admittedly ugly. But modern waste-to-energy facilities are dramatically cleaner than their pre-1992 predecessors and air emissions even compare favorably to fossil-fuel power plants. These facilities also reduce emissions from truck traffic and landfilling, which will have regional environmental benefits.

A key critique, that waste-to-energy facilities will reduce the city’s incentive to increase recycling, may prove unfounded. Europe has at least 400 waste-to-energy facilities and local recycling rates that are often above 50 percent. The biggest challenge for new facilities is likely to be the identification of an industrial site that is appropriate for a waste-to-energy facility (if not zoned for it) and that satisfies the state’s rigorous new standards for environmental justice.

Christopher Rizzo is counsel and Michael Plumb is an associate at Carter Ledyard & Milburn in its environmental and land use practice group. Mr. Rizzo teaches at Pace Law School.

Endnotes:

1. The comment echoed similar statements by the City’s Director of Sustainability and Long Term Planning at an Oct. 24, 2011 City Council Hearing.

2. New York City, PLANYC, p. 137 (April 2011).

3. 42 U.S.C. §7429(a)(2) (1990 Clean Air Act Amendments requiring NSPS for new incinerators and MACT for existing sources); regulations promulgated at 60 Fed. Reg. 65387-65436 (Dec. 19, 1995).

4. Memorandum from Walt Stevenson, EPA Office of Air Quality Planning and Standards, on Emissions From Large and Small MWC Units at MACT Compliance (Aug. 10, 2007).

5. Chicago v. Environmental Defense Fund, 511 U.S. 328 (1994).

6. WTE facilities are likely to do well in a greenhouse gas analysis because, municipal solid waste is composed of renewable fuel which will displace fossil fuels in energy production. In addition, landfill methane gas is avoided. If greenhouse gas reductions become a marketable commodity in the United States, WTE facilities could generate carbon credits.

7. N.Y. Envtl. Conserv. L. §27-0106.

8. Emerging solid waste technology facilities were evaluated in a separate study which was attached as an appendix to the SWMP. New York City Comprehensive Solid Waste Management Plan, Appendix F (September 2006).

9. DEC released draft environmental justice regulations in January 2012. Among other things, the regulations require a study area of ½ square mile around the proposed major electric generating facility.

10. New York State Public Service Commission, Proceeding 03-E-0188.

11. N.Y. Public Service L. §172.

12. Pratt Center for Community Development, “Protecting New York’s Threatened Manufacturing Space,” April 16, 2009.

13. www.seas.columbia.edu/earth/wtert/faq.html.

14. N.Y. Public Service L. §166(m).

15. N.Y. Public Service L. §163; N.Y. Finance L. §97-kkkk.