For more information about reporting requirements associated with the Brownfield Cleanup Program, contact Jennifer Coghlan.

TCE was used extensively as a degreaser and a solvent, and is one of the most prevalent contaminants in the United States.  It is found in soil and groundwater at numerous Superfund sites, and its presence has led to the closure of water supply wells around the country, including on Long Island.  TCE also can vaporize into the air when it is present in soil or groundwater. In some areas, this has led to the presence of TCE in indoor air of buildings overlying TCE-contamination; so-called “vapor intrusion”.

EPA has indicated that it will take its Health Assessment into account in the following areas:

1. Establishing cleanup methods at Superfund sites where TCE has been identified as a contaminant;

2. Understanding the risk from vapor intrusion as TCE vapors move from contaminated groundwater and soil into the indoor air of overlying buildings;

3. Revising EPA’s Maximum Contaminant Level for TCE in drinking water; [and]

4. Developing appropriate regulatory standards limiting the atmospheric emissions of TCE – a hazardous air pollutant under the Clean Air Act.

It remains to be seen whether EPA’s determination will impact the judgments of state regulators, including those in New York.  For more information on issues arising at TCE-contaminated sites, contact Christine Leas or David Yudelson.

EPA’s formal recognition makes the City eligible to use federal brownfield grants for the investigation and cleanup of contaminated properties.  City officials also believe that federal support of the City’s brownfield program will expedite the cleanup and redevelopment of vacant and underutilized properties while creating new businesses, jobs, and affordable housing. Federal recognition augments the formal acceptance of the City’s Brownfield Cleanup Program by the New York State Department of Environmental Conseration (“DEC”).

Significant elements of the New York City Brownfield Cleanup Program, discussed here, include:

• The issuance of a Notice of Completion for cleaned-up properties, which includes a liability release from the City;
• a statement from New York State that DEC has no further interest and does not plan to take enforcement measures or require remedial action for the property under state or federal law; and
• the issuance of a Green Property Certification from the City indicating that the property is protective of public health and the environment.

Federal and state approval of N.Y.C.’s Brownfield Cleanup Program, in combination with the City’s ability to access federal brownfield funding, should strengthen the City’s program.

For more information about the N.Y.C. Brownfield Cleanup Program, please contact Michael J. Lesser.

Newly created land banks will need to exercise caution in acquiring abandoned and foreclosed property, which are often contaminated from historic industrial activity.  Such contamination may have been a factor contributing to the abandonment of the property, particularly in economically depressed areas.  Federal and state laws can impose strict liability on owners of contaminated property to address the actual or potential release of hazardous substances.   Although these laws provide a defense to government entities acquiring property involuntarily or through eminent domain, such defenses do not appear to be available to a land bank.  Land banks would be well advised to consider this risk and to protect themselves by conducting due diligence investigations before taking title (in order to qualify for certain statutory defenses to liability) or by delaying taking title until a developer or other entity has been identified with the financial capacity and willingness to assume environment liability for past contamination.

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 Leas, Jeffrey Gracer or Michael Bogin.

The 2007 plan presented 127 initiatives. While 97% of these initiatives have already been launched, some have been delayed by a reduction in the City’s capital budget, and others hindered by a lack of federal or state permission, action or funding.

Key Topics of Interest: Neighborhood Development and Brownfields

According to the Update, over 87% of new housing starts since 2007 have been within a half-mile of transit. In addition, the City has created or preserved 110,000 units of affordable housing since 2004, with plans for 165,000 units by 2014. Over 30,000 of these units financed by the City will meet Enterprise Green Communities guidelines for energy efficiency and sustainability. In addition, the City continues to explore underutilized areas as potential new sites for development, including areas of Staten Island and the Bronx.

Progress on brownfields is also reported. In 2008, the City created its Office of Environmental Remediation, which facilitates the nation’s first municipally-run cleanup program (The NYC Brownfield Cleanup Program, or “NYC BCP”).  It has also created the Searchable Property Environmental Electronic Database (“SPEED”), an online search engine containing environmental and historic land use information on thousands of sites throughout NYC. The City plans to establish the NYC Community Brownfield Planning District (“CBPD”) Program, under which it will create 25 new NYC Community Brownfield Planning Districts and link these grassroots efforts into larger networks. The City will continue to collaborate with the state and federal governments to improve incentives for brownfield cleanup and development; advocate at the state level for a full liability release for parties who remediate under the NYC BCP; collaborate with local entities to establish low-interest loan programs to fund cleanups; and establish an online document repository for NYC BCP project information. As noted previously on this  blog, the City is continuing to encourage participation in this program.

Other Initiatives

The Update discusses the City’s progress in other environmentally-related areas, including:

• reducing greenhouse gas (GHG) emissions (the goal remains to reduce them 30% by 2030 and 80% by 2050);
• using federal stimulus money to install more than 200 electric vehicle (EV) chargers throughout the metropolitan area (including in commercial parking garages);
• retrofitting over 100 City-owned buildings to be more energy efficient;
• implementing regulations to phase out dirty heating fuels;
• planting one million trees;
• preparing for what may be inevitable results of climate change (rising temperatures and sea levels); and
• approximately 400 very specific short-term goals in a variety of areas to be completed by the end of 2013. 

For more information on PlaNYC, and to view the many reports that have been published in conjunction with the program, visit New York City’s PlaNYC website.

Laura Friend is a paralegal at Sive, Paget & Riesel.

One of the largest federal incentives for brownfield developers is the Brownfields Tax Incentive, I.R.C. § 198(a), which allows certain cleanup costs to be fully deducted in the year in which they are incurred, as opposed to being capitalized and deducted over a longer span.  In order to qualify for this incentive: (a) the brownfield site must be “held by the taxpayer for use in a trade or business or for the production of income,” (b) there must have “been a release (or threat of release) or disposal of any hazardous substance,” including but not limited to “any petroleum product,” on the site, and (c) the taxpayer must receive “a statement from the appropriate agency of the State” certifying that the site is a brownfield and eligible for the incentive.  Id. § 198(c).

Instructions for obtaining New York State certification are available through the Department of Environmental Conservation (“DEC”), and EPA has published a list of agency contacts in other states.  The tax incentive is set to expire at the end of 2011, though Congress has repeatedly extended it in the past, at times applying the extensions retroactively after the program had already lapsed.

In addition to tax incentives, many other federal programs provide direct financial and technical assistance to support brownfield redevelopment, dozens of which are described in EPA’s latest Brownfields Federal Programs Guide.  For more information on state and federal incentives available for the voluntary cleanup of contaminated property, contact Jeffrey Gracer.

EPA’s nomination of the NCH Site reflects an emerging trend toward large, multiparty Superfund sites in the New York metro area.   In addition, since 2009 the rate at which EPA has been adding sites to the NPL has increased from prior years, and the recent nominations reinforce this trend.

Complex, multiparty sites were relatively common in the two decades following CERCLA’s enactment in 1980.  EPA listed many former landfills, casting a broad liability net over dozens of potentially responsible parties (PRPs) at a time, and these sites often involved tens or hundreds of millions of dollars in response costs.  However, while listings continued, by 2005 practitioners and commentators had noted a dropoff in large government-led cleanups.[1] Around this time, intense economic pressures to develop property also resulted in many voluntary cleanups by parties who had no prior connection to the contamination.  The focus of CERCLA practice shifted accordingly, from EPA-led megasites to voluntary cleanups, with courts scrutinizing the legal avenues of recovery for volunteers under the statute’s cost recovery and contribution provisions.[2]

More recently, the EPA has named several large, complex, and costly sites in the New York metropolitan area to the NPL, including the Gowanus Canal and Newtown Creek, each estimated to involve cleanups costing hundreds of millions of dollars.  EPA is also pursuing efforts to investigate and remediate portions of the Lower Passaic River, as part of the Lower Passaic River Restoration Project.  At another large cleanup site, in July 2010, 100 PRPs signed on to conduct a Remedial Investigation/Feasibility Study for the Berry’s Creek study area in Bergen County, NJ.  The first phase of dredging of the Hudson River Superfund site by General Electric began in 2009 and cost approximately $560 million.  As the above examples illustrate, EPA’s Region 2 appears increasingly focused on contaminated waterways, which by their nature involve complex and costly cleanups.

The rising number of Superfund sites is not just a local development; the number of listings is on the rise nationwide.  Between 2003 and 2008 EPA listed an average of 14.6 new sites per year.  By contrast, in the first few months of this year, 25 sites have already been proposed or listed, and if all those sites are listed average new listings per year since 2009 will jump to 21.6—50% over the previous five years.  Of course, more sites may also be listed in the remaining nine months of 2011.[3]

• Read more on Superfund/CERCLA

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.

• View more SPR project updates

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.