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February 16, 2011

SPR Represents Purchaser of Former Pfizer Manufacturing Plant in Brooklyn

SPR attorneys recently served as environmental counsel to Acumen Capital Partners in its acquisition of the former Pfizer manufacturing facility in Brooklyn.  The plant, comprising 660,000 square feet, had been vacant since Pfizer operations ceased there in 2008.  Pfizer traces its corporate origins to the neighborhood, having commenced its operations there in 1849.

Plans for the property include conversion to light industrial and commercial uses.  Acumen seeks to incorporate environmental sustainability into its redevelopment projects, and is known for constructing a rooftop farm comprising 43,000 square feet on another former industrial property in Long Island City.  Five acres of undeveloped property remain north of the former Pfizer plant, which Pfizer has envisioned for potential development as affordable housing.

SPR represented Acumen in evaluating the environmental aspects of the purchase of the plant.  For more information contact Michael Bogin or Jeff Gracer.

February 15, 2011

Recent Developments in Hydraulic Fracturing: EPA Completes Draft Plan for Study, DEC Proceeds in its Own Study, and Buffalo Bans Fracking

On February 8, 2011, the U.S. Environmental Protection Agency (“EPA”) submitted its draft plan for its study on hydraulic fracturing to the EPA’s Science Advisory Board (“SAB”) for review.  As discussed previously on this blog, the study will focus on the effects of hydraulic fracturing on drinking water.  In March 2010, EPA commenced preliminary work for the study, which has included convening public meetings and seeking information from gas companies – using both voluntary requests and subpoenas – about the specific chemicals used in the hydraulic fracturing process.  According to the draft study plan, EPA intends to focus on the following research questions:

  • How might large volume withdrawals from ground and surface water, to be used for hydraulic fracturing, impact drinking water resources?
  • What are the possible impacts of releases of hydraulic fracturing fluids on drinking water resources?
  • What are the possible impacts of the injection and fracking process on drinking water resources?
  • What are the possible impacts of releases of flowback and produced water on drinking water resources?[1]
  • What are the possible impacts of inadequate treatment of hydraulic fracturing wastewaters on drinking water resources?

The draft plan will be reviewed by the SAB in a public meeting in Alexandria, VA on March 7-8 2011.  Public comments will be heard during the meeting.

In New York, it has been reported by the Binghamton Press & Sun-Bulletin that Joseph Martens, Acting Commissioner of the New York State Department of Environmental Protection (“DEC”), indicated in a session before the state legislative budget committee on February 8 that DEC would not necessarily wait for the completion of EPA’s study before beginning to process applications to drill natural gas wells using hydraulic fracturing.  Rather, review of applications would be triggered by the agency’s completion of its own study of hydraulic fracturing, to be set forth in a Supplemental Generic Environmental Impact Statement (“SGEIS”).  As discussed previously on this blog, it is expected that a Revised Draft SGEIS will be released on June 1, 2011, and that the Final SGEIS will be released in the fall of 2011.  However, Martens noted that DEC’s actual ability to process gas companies’ applications could be limited or delayed by staffing constraints if the number of applications is overwhelming.

Also on February 8, the Common Council of Buffalo, NY voted unanimously to ban any form of natural gas extraction, including hydraulic fracturing, within its borders.  The measure is seen as symbolic, as no such drilling projects have been planned in Buffalo. Buffalo follows Pittsburgh, PA, which imposed a ban on natural gas drilling within city limits in November 2010. Other municipalities, such as Philadelphia and New York City, while not imposing drilling bans, have also called for limits on hydraulic fracturing.

[1] Flowback water is the water that has been injected into the well after it has served its purpose of fracturing the underground rock formation; this water flows back up the well and to the surface.  Produced water is water originating underground that is released to the surface through the well.

February 7, 2011

EPA Considers Adding Vapor Intrusion Pathway to Superfund Ranking System

By: Jonathan Kalmuss-Katz — Filed under: Brownfield Cleanup, CERCLA/Superfund, Emerging Issues — Posted at 2:31 pm

For over two decades, the Environmental Protection Agency (“EPA”) has considered four exposure pathways in determining whether to list contaminated sites on the Superfund National Priorities List (“NPL”): groundwater, surface water, soil and air.  In a Federal Register notice published January 31, 2011, EPA solicited public comment on the potential addition of a fifth pathway: soil vapor intrusion.

The migration of vapors from subsurface contamination into overlying buildings, known as vapor intrusion, is a growing concern for federal and state environmental regulators.  Vapor intrusion is most common at sites with elevated levels of volatile organic compounds – including chlorinated solvents and sometimes gasoline – which enter indoor air through openings around sewer lines, cracks in a building’s foundation or basement, or other preferential pathways.

Under the federal Superfund law, EPA screens contaminated sites for listing on the NPL through its Hazard Ranking System, assigning each site a score based upon its perceived threat to human health and the environment.  The risk of vapor intrusion, however, does not currently factor into this determination.  A May 2010 Government Accountability Office (“GAO”) report found that, given EPA’s inability to designate NPL sites on the basis of vapor intrusion, “States may be left to remediate those sites without federal assistance, and given states’ constrained budgets, some states may not have the ability to clean up these sites on their own.”

From now through April 16, 2011, EPA will be collecting public comment on the potential revision of the Hazard Ranking System (“HRS”) to account for vapor intrusion.  It plans to hold three public listening sessions on the topic.  While it has not proposed specific regulatory changes at this point, the Agency “will consider the information gathered from this Notice, listening sessions, and other sources before making a decision to issue a proposed rulemaking to add subsurface contaminant intrusion to the HRS.”

EPA is also in the process of revising its draft guidance for the evaluation of vapor intrusion risks, which was initially released in 2002 but has yet to be finalized.  EPA outlined a number of likely changes to that document last October, and it plans to issue updated guidance by November 2012.

Finally, the New York State Department of Environmental Conservation is continuing to reevaluate vapor intrusion pathways, and has reopened several sites that had already been remediated and delisted to require additional monitoring or mitigation measures.  For more information on these reopenings, or on federal and state vapor intrusion policy developments, contact Christine Leas, Jeffrey Gracer, or Michael Bogin.

February 4, 2011

SPR Blog Nominated for LexisNexis’ List of Top 50 Blogs for Environmental Law & Climate Change

By: Jessica Albin — Filed under: Announcements — Posted at 2:54 pm

LexisNexis has designated Sive, Paget & Riesel’s environmental law blog as eligible to be listed as one of the Top 50 Blogs for 2011 in the Environmental Law & Climate Change Community.  In the designation, LexisNexis stated that SPR’s blog “addresses all of the popular topics: climate change, Superfund/CERCLA, Renewable Energy, Marcellus Shale & Hydrofracking, and SEQRA. The analysis here is thorough and precise.”

LexisNexis is accepting comments on the nominees through February 28.  Before posting a comment, register here.  Registration is free.  After this comment period, LexisNexis will select the top 50 blogs among the nominees.  The public will then be asked to vote for the Top Blog of the Year.  Once voting has opened, we will provide a link on the SPR blog.

February 2, 2011

CEQ Finalizes New NEPA Mitigation Guidance

On January 14, 2011, the White House Council on Environmental Quality (“CEQ”) finalized new guidance on the use, documentation and enforcement of mitigation measures under the National Environmental Policy Act (“NEPA”).[1] While the Guidance – which was initially proposed in draft form last February – is non-binding, its interpretation of existing authority could effectively create additional, mitigation-related requirements for project applicants and lead agencies under NEPA.

Unlike New York’s State Environmental Quality Review Act (“SEQRA”), NEPA imposes no substantive requirement to mitigate a project’s adverse environmental impacts.  When a federal action would have significant adverse impacts, however, the lead agency must prepare an Environmental Impact Statement (“EIS”) which analyzes, among other subjects, the “means to mitigate” those impacts.[2] More commonly, an applicant will incorporate mitigation measures into its project design in order to avoid triggering NEPA’s EIS requirements, resulting in a Finding of No Significant Impact (“FONSI”).

The new Guidance endorses the use of these “mitigated FONSI[s]” when accompanied by “enforceable mitigation measures.”[3] However, the Guidance warns that “failure to document and monitor mitigation may … undermine the integrity of the NEPA review.”[4] Accordingly, CEQ recommends a series of steps to ensure that mitigation commitments are expressly stated and adhered to, and calls upon individual agencies to supplement its Guidance with their own procedures that make “relevant funding, permitting, or other agency approvals … conditional on performance of mitigation commitments.”[5]

First, the Guidance advocates the identification of specific mitigation measures within an EIS or Environmental Assessment (“EA”), including measurable performance standards or expected results.  To the extent that federal funding is required to implement these mitigation commitments, NEPA documentation must analyze the likelihood of whether or not such funds are expected to be available throughout the life of the project.[6]

For certain “important cases” where mitigation eliminates the need for an EIS, the Guidance calls for monitoring of a project’s mitigation commitments after its approval.  Not all mitigated FONSIs require formal monitoring, and the Guidance does not provide a definition of “important cases,” relying on agencies to use their judgment in making such determinations.[7] The party who will be performing the mitigation is responsible for developing and implementing the monitoring program, drawing upon public input and informing the public of the results and progress of such monitoring where appropriate.[8]

Finally, the Guidance discusses remedies for ineffective or non-implemented mitigation measures.  While NEPA does not require mitigation of adverse impacts, mitigation failures may give rise to adverse impacts which were not considered during the initial review process, triggering the need for an EIS (in the case of a mitigated FONSI) or supplemental EIS (if an EIS was already prepared) in the event that additional federal approvals or actions are anticipated.[9] Even when supplemental documentation is not appropriate, agencies are encouraged to incorporate monitoring results into future NEPA analyses, so as to avoid relying upon mitigation measures that have proven ineffective in the past.[10]

With this document, CEQ has now finalized two of the three NEPA Guidance documents released in draft form last year.  The last in the series – Draft NEPA Guidance on Consideration of the Effects of Climate Change and Greenhouse Gasses[11] – is expected to be finalized later this year.

[1] See CEQ, Final Guidance for Federal Departments and Agencies on the Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate Use of Mitigated Findings of No Significant Impact (“Mitigation Guidance”), Jan. 14, 2011.


[2] See, e.g., 40 C.F.R. § 1502.16(h).

[3] Mitigation Guidance at 7, n. 18.  While mitigated FONSIs have long been accepted as a matter of practice, prior CEQ Guidance from 1981 had cast doubt upon their legitimacy under NEPA.  Id.

[4] Id. at 2.

[5] Id. at 8.

[6] Id. at 9.  In some cases, failure to provide such disclosure could result in delays and preparation of a supplemental EIS should the necessary funding later become unavailable.  Id.

[7] Id. at 10.

[8] Id. at 12.

[9] Id. at 15.

[10] Id.

[11] See CEQ, Draft NEPA Guidance on Consideration of the Effects of Climate Change and Greenhouse Gas Emissions, Feb. 18, 2010.