Association News Rochester Chapter


New York state is attempting to move closer towards its goal of fifty percent renewable energy production with an announcement by the New York State Energy Research and Development Authority (NYSERDA) that it has identified more than one million acres of offshore area along the south shore of Long Island for potential development. The proposed offshore area has the potential to generate 2,400 megawatts of energy by 2030, enough to power 1.2 million homes.[1]

After a significant period of research, planning and consultation with commercial fisherman, NYSERDA has released recommendations to the Federal Bureau of Ocean Energy Management (BOEM), which identifies four large offshore areas suitable for the creation of windfarms, as well as a written request from New York State Governor Andrew M. Cuomo for expedited approval from federal regulators to begin bidding for leases. The proposed windfarms are a significant development in green energy production along Long Island and would dwarf the recently approved Montauk Point wind farm, currently under development by Deepwater Wind, which is expected to generate 90 megawatts of power by 2022.[2]  Continue Reading ...

LEGAL ALERT FROM RAC NYSCAR AFFILIATE MEMBER, HARRIS BEACH PLLC: U.S. DOT Proposes Rules to Eliminate Duplication of Environmental Reviews

On September 28 and 29, 2017, the U.S. Department of Transportation ("DOT") published Notices of Proposed Rulemaking to commence a public comment period on proposed regulations governing DOT's Program for Eliminating Duplication of Environmental Reviews, established by Section 1309 of the Fixing America's Surface Transportation Act ("FAST Act").  Section 1309 directed the U.S. Secretary of Transportation to establish a pilot program authorizing up to five states to conduct environmental reviews and provide approvals for projects utilizing state environmental laws and regulations, rather than subjecting such projects to the review process of the National Environmental Policy Act ("NEPA"). 

The FAST Act, signed into law by President Obama on December 4, 2015, was the first federal law in over a decade to provide long-term funding certainty for surface transportation infrastructure planning and investment.  It authorized $305 billion over fiscal years 2016 through 2020 for various critical transportation projects.  Continue Reading ...



On September 5, 2017, the New York State Department of Environmental Conservation ("DEC") filed a Notice of Adoption for a comprehensive revision and reorganization of the 6 NYCRR Part 360 series of regulations - better known as the Solid Waste Management Regulations.  The regulations in the new Part 360 series provide the authority by which the state sets design standards and operational criteria for all solid waste management facilities and activities.

The revisions streamline and reduce regulatory burdens for entities while strengthening environmental protections, and are meant to "reflect the DEC's experience in implementing [the] regulations" since their last major revision took place in 1992.  DEC Commissioner Basil Seggos explains: "These final regulations incorporate public comments we received and will ensure New York State remains a leader in protecting our communities and natural resources through enhanced recycling and waste management."

One of the most obvious changes to the regulations is in its structure: the revisions include a complete reformatting of Part 360.  The laws are reorganized into a Part 360 series containing specific waste topics enumerated as Parts 360-369, making it less burdensome to revise specific sections. Continue Reading ...

LEGAL ADVISORY FROM RAC NYSCAR AFFILIATE MEMBER, HARRIS BEACH PLLC:  Drones Deployed to Help Protect the Environment and Respond to Emergencies

The New York State Department of Environmental Conservation recently announced that it has deployed twenty-two drones throughout New York state to assist with environmental issues and in emergency response situations. 

The DEC anticipates using the drones at stations across the state, including Long Island, the New York City metropolitan area, the Capital District, the Adirondacks, and in Central and Western New York.

Basil Seggos, the Commissioner of the DEC, stated that "[t]he use of drone technology will help us do our jobs better and faster while saving taxpayer dollars. We live in a changing world with technological advances being made at an exponential rate, and UAVs give us a safe and efficient way to collect and analyze data, assess threats to the environment, and quickly respond to emergencies. This technology is helping DEC with everything from petroleum spills and wildlife surveys to search and rescue missions, forest fires, and natural disasters."

The DEC has previously used drone technology to survey potential oil spills in the Hudson River, and to assist firefighters extinguishing a grass fire in Steuben County.

The full announcement is available:

Download Legal Advisory Here


The NYS Department of Taxation and Finance (DTF) recently issued Advisory Opinion TSB-A-17(3)I determining that a property listed in the National Register of Historic Places (the building) was located within a qualifying census tract for purposes of the historic tax credit (HTC) based on the determination of the New York State Office of Parks, Recreation and Historic Preservation (SHPO) that the building was in a qualifying census tract. 

NYS Tax Law § 606(oo) allows for a HTC against NYS tax equal to 100% of the federal HTC (up to $5 million).  Among other requirements, NYS Tax Law § 606[oo][5]) requires that a property to be rehabilitated must be located within a qualified census tract, defined as a census tract at or below 100% of the state median family income.  The state median family income is computed as of January 1 of each year using the most recent 5-year estimate from the American Community Survey published by the United States Census Bureau.  The determination of eligibility is made by SHPO. Continue Reading

LEGAL ALERT FROM RAC NYSCAR AFFILIATE MEMBER, HARRIS BEACH PLLC: EPA Issues Interim Final Guidance to States on Coal Ash Management Permit Programs

On August 10, 2017, the U.S. Environmental Protection Agency (EPA) released an interim final guidance document to help states develop and submit permit programs for the safe management of coal ash combustion residuals (CCR), commonly known as coal ash, to EPA for review and approval.  The current version of the guidance describes EPA's statutory authority interpretations and the way in which EPA generally intends to review state programs.  EPA is encouraging states to consult that interim final guidance as they develop and submit programs to EPA for review and approval.

EPA Administrator Scott Pruitt described the interim final guidance as being "part of EPA's ongoing commitment to cooperative federalism," saying that "we continue to consult with our state partners to find the best management strategy for the safe disposal of coal ash in each of their states."  He characterized the guidance as being designed to make the permit program approval process "easier to navigate." Continue Reading

LEGAL ALERT FROM RAC NYSCAR AFFILIATE MEMBER, HARRIS BEACH PLLC: New DEC Rule Impacts Handling and Storage of Anti-Stain and Grease Agent PFOA

The New York State Department of Environmental Conservation (DEC) recently promulgated regulations related to the bulk storage of perfluorooctanoic acid (PFOA), specifically PFOA-acid, PFOA-salt, PFOS-acid and PFOS-salt (collectively referred to as PFOA).  PFOA has been commonly used to make products more resistant to stains, grease, and water and can be found in pre-treated carpeting, carpet-care liquids, certain apparel and upholstery, firefighting foam, textiles, industrial floor wax and wax remover, sealants, food contact paper, dental floss and cookware.

Although the manufacture of PFOA has been phased out in New York state, those entities that continue to use it must take heed of the new regulations to ensure compliance with handling and storage requirements.  

The new rule adds PFOA to the list of hazardous substances under 6 NYCRR Section 597.3.  The New York State Department of Health has found that prolonged exposure to significantly elevated levels of PFOA threatens public health and poses a hazard to the environment when improperly treated, stored, transported, disposed of, or otherwise managed.  

There are three consequences of listing PFOA as a hazardous substance.  Continue Reading

LEGAL ALERT FROM RAC NYSCAR AFFILIATE MEMBER, HARRIS BEACH PLLC: Cybersecurity-A Plan of Attack Before and After You are Hacked

Ransomware is dominating the news.  We have seen a rise in the rate of infection for our clients.  A sound incident response plan addresses the management of ransomware infections and other data breaches. To pay or not to pay?  Ransom costs vary, averaging $1,000 or more depending upon the size of your organization.  They are typically paid with Bitcoins.  If attacked, you will need to decide if you will capitulate to their demands.

Reasons to Pay:

  • There is usually no easy way to decrypt the files.  Sometimes the attackers make a mistake and it is possible, but most of this software is well packaged on the dark web and runs properly so decrypting without a key is usually not possible.  If you have not recently backed up your infected computers, paying the ransom may be the only hope of getting your files back.
  • Paying the ransom and decrypting the files is easier than recreating your information system.  If you do pay the ransom and everything happens as promised, you may also have access to a helpdesk staffed by someone who will help you decrypt the files.  So be sure to keep all the information that comes with your decryption key.

Reasons not to Pay:

  • Do you trust a thief?  The person who caused the ransomware to be installed is a thief and extortionist.  Do you trust them to provide working encryption keys after you pay the ransom?  The ransomware business model is premised upon victims believing that the keys will work and many of the extortionists even provide a help line for those having trouble decrypting their files.  But there are criminals who don't care about protecting the industry and just encrypt, take the money and never provide a working key.  We have seen this numerous times.
  • There is a high likelihood that your organization will be identified to others as one willing to pay ransoms and therefore, you could be at a higher risk for future attacks.  Ransomware attacks are a crime of opportunity.  It takes some effort to install the virus  and these criminals want to devote their effort to victims who are likely to pay.  If they can increase their yield ratio by attacking people willing to pay in the past, they will do that. Continue Reading 

The Upstate NY CCIM Chapter and the Rochester Area Chapter of NYSCAR are sponsoring our Fall Education event. "Commercial Real Estate Negotiations" will be a held at the DoubleTree by Hilton Rochester on September 26, 2017. REGISTER HERE  Download Detailed Flyer

CCIM Institute’s Ward Center for Real Estate Studies provides leading education about commercial real estate topics and trends. Negotiation is a vital skill for all business professionals who deal with residential and commercial real estate on a regular basis. CCIM’s three-step interest-based negotiations model prevents the use of tactics that can derail a successful transaction. After completing this course, students will know how to:

  • Satisfy the interests of parties involved in the negotiation (without sacrificing yours)
  • Develop strategies for addressing challenges in a principled, transparent manner
  • Maintain a collaborative approach to negotiations
  • Effectively communicate the consequences of not reaching an agreement

This workshop satisfies the Institute’s eight-hour negotiation education requirement for earning the CCIM designation. This course will provide seven (7) NYS CE Credits.

LEGAL ALERT FROM RAC NYSCAR AFFILIATE MEMBER, HARRIS BEACH PLLC: New York State Department of Environmental Conservation Accepting Comments on Proposed Amendments to the State Environmental Quality Review Regulations.
Update:  NYSDEC SEQR Public Comment to Close on May 19, 2017

The Legal Alert below, issued last week, stated the public comment period for the proposed amendments to the State Environmental Quality Review Act (SEQR) regulations closed on March 19, 2017.  However, the correct date for the close of the public comment period is May 19, 2017.

As an additional reminder, this Friday, March 31, 2017 at 1:00 p.m., the New York State Department of Environmental Conservation (DEC) is hosting a public hearing regarding the proposed SEQR amendments at DEC's Albany office located at 625 Broadway, Albany, NY 12233 in Assembly Room 129.

Stakeholders from both the commercial and environmental sectors have voiced concerns about the proposed amendments. Developers and other commercial interests have stated that the proposed amendments still do not provide adequate timetables or certainty during the SEQR review process that would provide project sponsors with some needed certainty as to when the SEQR review process is deemed complete. While on the other hand, environmental groups are concerned the changes proposed by the amendments may weaken SEQR  by making numerous additions to the list of Type II actions, thereby exempting additional actions from SEQR review. 

We will keep you apprised of DEC's responses to opinions and comments as formal responses are released.  Continue Reading