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July 29, 2011

EPA Announces Agreement with Six Potentially Responsible Parties to Investigate Newtown Creek and Evaluate Cleanup Options

By: Devin McDougall — Filed under: CERCLA/Superfund — Posted at 11:31 am

After adding Newtown Creek to Superfund’s National Priorities List last September, EPA announced earlier this month that it has reached an agreement with six potentially responsible parties (Phelps Dodge Refining Corporation, Texaco, BP Products North America, National Grid NY, ExxonMobil and the City of New York) to conduct a remedial investigation of Newtown Creek (RI) and produce a feasibility study evaluating cleanup options (FS). The six parties also agreed to pay EPA $750,000 for past costs.

EPA estimates it will take years to complete the RI/FS. The parties have already completed a work plan for the investigation, which is scheduled to begin in August 2011, and will include analysis of Newtown Creek’s sediment, surface water, and surrounding air. Once the investigation has been completed, the parties will evaluate the feasibility of cleanup options.

EPA has stated that it plans to start developing a community advisory group later this summer. EPA plans to hold a meeting to consult with the Brooklyn and Queens communities before the end of the summer.

Cleanup efforts will face significant challenges.  According to EPA, Newtown Creek is one of the most polluted sites in the country. Due to the ready access it provides to the New York Harbor, Newtown Creek has been the site of intense industrial development dating back to the 1800s.  It has served as home to petrochemical plants, fertilizer factories, glue factories, sawmills, lumber and coal yards, and more than fifty oil refineries, including America’s first. In addition to its history of heavy industrial use, Newtown Creek has also been impacted by a serious oil spill at Exxon Mobil’s Greenpoint refinery that was discovered in the 1970s.  This spill is estimated to have discharged 17 million gallons of oil, much of which migrated into Newtown Creek.

SPR represents a number of current and prospective property owners along Newtown Creek in connection with the remediation and redevelopment of such properties for productive use. For more information about Newtown Creek and the surrounding area, please contact SPR partner Michael Bogin.

Devin McDougall is a Summer Associate at Sive, Paget & Riesel



July 27, 2011

August 1 Deadline Approaches for Submitting Benchmarking Report Under NYC Energy Efficiency Law for Buildings

New York City’s Local Law 84 of 2009 (the “Benchmarking Law”) requires owners of certain privately-owned buildings to submit their first annual benchmark of total energy and water use by 11:59 pm on Monday, August 1, 2011.  The law requires benchmark reporting to be completed by May 1 of each year, but the New York City Department of Buildings’ recently adopted Benchmarking Rule states that, for 2011, no penalties will be assessed due to failure to comply until August 1.  Starting in 2012, reports will be due by May 1.  Reported data will be made available to the public beginning in 2012 for non-residential buildings and in 2013 for residential buildings.

Covered buildings include:

  • any building that exceeds 50,000 gross square feet (“gsf”);
  • two or more buildings on the same tax lot that together exceed 100,000 gsf; or
  • two or more condominium buildings that are governed by the same board of managers and that together exceed 100,000 gsf.

Square footage is determined based on the records of the New York City Department of Finance.  Covered buildings should have received a notice from the Department of Finance in December 2010.  In addition, the City has published a list of the buildings it believes to be subject to the Benchmarking Law.

To comply with the Benchmarking Law, owners of covered buildings must solicit information on energy usage from non-residential tenants, but are not required to do so for residential tenants.  Benchmarking of water use is not required unless the building was equipped with automatic meter reading equipment by the New York City Department of Environmental Protection for the entirety of the previous calendar year.

Benchmarking reports must be submitted to the City electronically using the U.S. Environmental Protection Agency’s (“EPA”) Portfolio Manager Tool.  Owners of multiple buildings should pay special attention to EPA’s instructions before entering information to ensure that reports are not overwritten by later entries.

The Benchmarking Law is part of New York City’s Greener, Greater Buildings Plan.  A component of the Citywide environmental initiative PlanNYC2030, the Greener, Greater Buildings Plan strives to reduce greenhouse gas emissions by 30% by 2030.

For more information on the Benchmarking Law, please contact SPR partner Dan Chorost.  To learn more about green building trends beyond New York City, please see Dan’s May 2011 article on this topic.


July 22, 2011

New Federal Court Case Signals Increased Litigation Over Vapor Intrusion Reopeners

By: Christine Leas — Filed under: Brownfield Cleanup, CERCLA/Superfund, Emerging Issues, New York Environmental Law — Posted at 3:46 pm

A recent federal lawsuit in upstate New York signals increased litigation over vapor intrusion claims, which are already subject to regulatory attention and frequent re-openers of prior cleanups by the New York State Department of Environmental Conservation (“DEC”).

In one of the first cases of its kind in New York, on June 24, 2011, CAEUSA Inc. (“CAE”), a supplier of flight simulators and related products, filed a federal lawsuit against neighboring property owners, seeking $2.1 million in response costs and damages for soil vapor contamination allegedly arising from releases of solvents on neighboring properties.  As a result of soil vapor issues in Endicott, NY and elsewhere, DEC is reviewing, and in many cases, reopening, prior remediation approvals to address soil vapor contamination.    

CAE asserts that, in 1998, it expended approximately $4 million on remediation of soil contaminated with chlorinated solvents at its property near Binghamton, New York pursuant to consent orders with DEC.  CAE later sold that property but retained contractual responsibility for pre-closing contamination.  In 2003, DEC began an extensive investigation of the intrusion of soil gas and soil vapor into properties neighboring the former CAE site.  Based on that investigation, DEC installed more than 120 vapor mitigation systems in the neighboring properties. 

According to the complaint, DEC is seeking $2.1 million from CAE for its costs in investigating the soil vapor contamination and installing the vapor mitigation systems.  In its complaint, CAE alleges that necessary remediation of its property was conducted and that its site is not contributing to the soil vapor contamination of the neighboring properties, where vapor mitigation systems were installed as a result of DEC investigation.  CAE alleges that current and past owners and operators of manufacturing and commercial properties neighboring the former CAE site are responsible for the off-site soil vapor conditions.    

CAE’s complaint presents data showing that soil vapor associated with the plaintiff’s property is minimal in contrast with very high levels at and emanating from the defendants’ properties.  It also presents detailed allegations de-linking the soil vapor contamination from any residual groundwater contamination that could be connected to CAE.  CAE’s lawsuit signals that courts will now be forced to grapple with the complicated issues faced by DEC with respect to soil vapor intrusion: the complexities of site data, the evidence needed to pursue parties for vapor intrusion, and the reopening of cleanups previously approved and closed by the agency.

Sive, Paget & Riesel represents a number of property owners on vapor-intrusion evaluations and re-openings.  For more information on this topic, please contact Christine LeasJeffrey Gracer or Michael Bogin.

July 11, 2011

Supreme Court to Consider Pre-Enforcement Judicial Review of Clean Water Act Orders

By: Mark Lebel — Filed under: Administrative Law, Clean Water Act, Constitutional Issues, Enforcement, Wetlands — Posted at 1:04 pm

On June 28, the Supreme Court granted a petition to review a Ninth Circuit decision holding, as other circuits have also held, that administrative compliance orders issued by the Environmental Protection Agency (“EPA”) under the Clean Water Act are not judicially reviewable until EPA brings an enforcement action in federal court. 

The petitioners in this case, Sackett v. EPA, sought judicial review after EPA issued an order applying to property that the agency had determined was within its wetlands jurisdiction.  The EPA order prevented the petitioners from building a house and also directed the petitioners to restore the land to its original condition or face heavy penalties. 

The Supreme Court granted review on two critical questions: (1) whether pre-enforcement judicial review of administrative compliance orders is available under the Administrative Procedure Act, and (2) if not, whether the unavailability of such review violates the due process clause of the Fifth Amendment.  

EPA argued that Supreme Court review was unnecessary because the four other circuit courts which have considered this same issue have all agreed that the absence of pre-enforcement review of orders under the Clean Water Act is authorized and permissible.  The Supreme Court appears to have accepted the petitioner’s view that the inability to immediately challenge EPA orders is an issue of significant nationwide importance.

It remains to be seen whether the Supreme Court’s decision in this case will be confined to matters arising under the Clean Water Act.  The Supreme Court recently declined to review a decision by the D.C. Circuit upholding the absence of pre-enforcement judicial review under the Superfund law. 

Mark Lebel is a Summer Associate at Sive, Paget & Riesel, P.C.

July 1, 2011

New York Proposes Hydraulic Fracturing In Certain Areas Under Strict Controls

On July 1, the New York State Department of Environmental Conservation (“DEC”) issued a revised Draft Supplemental Generic Environmental Impact Statement (“SGEIS”) recommending that high-volume hydraulic fracturing (“fracking”) be banned in the New York City and Syracuse drinking water watersheds but that fracking be allowed to proceed, subject to strict regulation, on private property.  Fracking uses high-pressured water, combined with chemicals, to release natural gas present underground in shale formations. 

The revised Draft SGEIS contains recommendations to mitigate the environmental effects of fracking.  These recommendations, which would make approximately 85 percent of the Marcellus Shale accessible to natural gas production, include the following:     

  • Fracking would be prohibited in the New York City and Syracuse watersheds, including a buffer zone;
  • Drilling would be prohibited within primary aquifers and within 500 feet of their boundaries;
  • Surface drilling would be prohibited on state-owned land, including parks, forest areas and wildlife management areas;
  • Fracking will be permitted on privately held lands under “rigorous and effective controls”; and
  • DEC will issue regulations to codify these recommendations.

DEC’s present recommendations depart from those contained in an earlier 2009 Draft SGEIS, which would have permitted drilling in the New York City and Syracuse drinking water watersheds, and which would have allowed surface drilling for high-volume fracking in primary aquifers and on public forests, wildlife areas, and parkland. In December 2010, then-Governor David Paterson ordered DEC to revise the initial Draft, taking into consideration the voluminous public comments that had been submitted.  This order was understood to impose a de facto moratorium on new permits until the issuance of the revised draft.

The import of DEC’s present findings to stakeholders such as upstate residents, downstate residents, municipalities, and industry cannot be fully understood without a thorough review of the revised Draft SGEIS, which is over 900 pages long.  As with many comprehensive studies, the devil will be in the details.  The revised Draft SGEIS will be posted on DEC’s website on July 8, 2011, and will be open for public comment for 60 days beginning in August.   It is expected that another round of extensive public comments will follow.

As of July 1, DEC has posted an Executive Summary of the revised Draft SGEIS and other related information online.  This website should contain the entire revised Draft SGEIS by July 8.

Click here for more information about hydraulic fracturing in New York.