October 17, 2013
Earlier this month, the New York State Department of Health (NYSDOH) issued new guidance for assessing perchloroethylene (PCE) in indoor and outdoor air. According to the new guidance, the maximum recommended concentration of PCE in air was revised down from 100 mcg/m3 to 30 mcg/m3. According to NYSDOH, this move was prompted by a recent EPA study which found greater health risks from PCE than previously understood.
PCE, also known as PERC or tetrachloroethylene, is used to dry clean fabrics, to degrease metal parts, and to manufacture other chemicals. It enters indoor and outdoor air through evaporation.
This change in guidance will have a number of important ramifications. First and most directly, it expands the applicability of New York’s tenant notification law. Under New York law, landlords must notify tenants where PCE in the air exceeds NYSDOH’s guideline. The new, lowered guideline will increase the likelihood that notice will be required where PCE vapor is detected. Additionally, NYSDOH has prepared a new fact sheet, which must be provided to tenants in such situations.
Second, the new guidelines can be expected to drive more stringent cleanup standards related to preventing soil vapor intrusion from PCE contamination, since cleanup standards typically take account of NYSDOH standards for health protection and soil vapor intrusion issues have been a focus of regulatory action in New York in recent years.
Finally, the new guidelines may affect real estate transactions, as they may complicate Phase I and Phase II analyses of site contamination and expand the scope of conditions recognized as problematic.
For further information, please contact Christine Leas.
October 10, 2013
On October 4, 2013, Justice Cynthia Kern of New York County Supreme Court rendered a decision dismissing a State Environmental Quality Review Act (“SEQRA”) challenge to the City Point project currently under construction in Downtown Brooklyn. In the case, a community organization and a number of labor unions were seeking to enjoin further construction of this billion-dollar project, which will include retail and market-rate and affordable housing. Their principal allegation was that New York City, which is leasing the property to the developers, should have supplemented the prior environmental review conducted for the project to analyze the potential socioeconomic impacts on the community of below-prevailing wages being paid to project construction workers.
Justice Kern dismissed the proceeding in its entirety. She first held that the petitioners lacked standing because the injuries they claimed were economic in nature, and therefore not within SEQRA’s zone of interests, and/or that the petitioners had not alleged any injuries they would suffer that were different than the community at large. Justice Kern re-affirmed prior authority that SEQRA does not provide a general right of action to all citizens, and noted that there is no precedent for the notion that low construction wages are an environmental impact recognized under SEQRA. Justice Kern further held that the claims were barred by the four-month statute of limitations applying to Article 78 proceedings, because the 2007 lease for the property allowed for wages as low as minimum wage to be paid to construction workers, and the petitioners manifestly knew at least by October 2012 that the project was not paying prevailing wages, as they had written to the developers complaining of that fact at the time. (The proceeding was commenced in May 2013.)
SPR attorneys David Paget, Elizabeth Knauer and Adam Stolorow represented the developer respondents: Acadia Realty Trust, Albee Development LLC, Washington Square Partners, Inc. and BFC Partners Development LLC.
For more information about this case or SEQRA review and litigation, please contact David Paget or Elizabeth Knauer.
October 4, 2013
On Monday, EPA announced the Record of Decision which outlines the final plan to clean up the Gowanus Canal Superfund site in Brooklyn, New York. EPA, in its press release, called the site “one of the nation’s most seriously contaminated bodies of water.” The canal was classified a “Superfund site” and added to the EPA’s National Priorities List in 2010. EPA proposed a remedial plan for the cleanup in December 2012, which was in large part adopted as the final remedy for the site in Monday’s Record of Decision.
Key components of the cleanup, which is projected to cost $506 million, include:
- Removing approximately 600,000 cubic yards of sediment by dredging;
- Capping dredged areas;
- Stabilizing deep sediment containing coal tar through mixing with other materials prior to capping; and
- Reducing flow from combined sewer overflows (CSOs) by 58-74%, by constructing retention tanks near two outfalls and adding green infrastructure.
The cleanup has been divided into three segments which correspond to the upper, middle and lower portions of the canal, with the majority of the cost associated with the first two segments. Dredged sediments contaminated with coal tar will be thermally treated to remove organic contaminants and then put to beneficial reuse where possible. Less contaminated sediment will be stabilized and reused where possible as well.
The EPA stressed that the cleanup will be funded by those parties who are legally responsible for the contamination. The EPA has already identified a number of potentially responsible parties, including private corporations, the City of New York and other federal government entities.
For more information on the Gowanus Canal Superfund Site, contact Daniel Riesel or David Yudelson.
September 23, 2013
According to the newly-released 2013 edition of Who’s Who Legal, five Sive, Paget and Riesel attorneys have been recognized by their peers as among the world’s “foremost legal practitioners” in environmental law: Michael S. Bogin, Mark A. Chertok, Jeffrey B. Gracer, David Paget, and Daniel Riesel.
SPR has the highest number of recognized experts in environmental law of firms in New York State, and has more environmental lawyers listed than any other single-office firm in the nation. Lawyers recognized by Who’s Who Legal have been selected based upon “comprehensive, independent survey work with both general counsel and private practice lawyers worldwide.”
August 27, 2013
Earlier this month, the New York Times published a series of articles discussing the ways in which the Bloomberg administration has changed New York City, in the process highlighting a number of major development projects for which SPR provided legal counsel.
The centerpiece of this series is an interactive map, entitled “Reshaping New York,” which provides, via a combination of photos and computer graphics, visualizations of how New York City has changed in the past twelve years. Notably, 37% of the city was rezoned, 40,000 new buildings were constructed, and about 800 acres of city parkland were added.
Advice from SPR attorneys helped many of the projects featured on the map come to fruition. Such projects include:
August 2, 2013
On July 26, 2013, the U.S. Court of Appeals for the Second Circuit upheld a 2009 lower court jury’s $104.69 million damage award against Exxon Mobil Corp. for contaminating New York City’s groundwater with the gasoline additive methyl tertiary butyl ether (“MTBE”).
New York City initially sued Exxon Mobil and other petroleum companies in 2003, alleging that they knew that MTBE would pollute groundwater and ignored warnings from their own scientists and engineers not to use the additive in areas where groundwater has been proposed as a drinking water supply. Exxon Mobil responded that the City’s common law claims were preempted by the federal Clean Air Act, which from the mid-1990s through 2004 required use of gasoline oxygenates, such as MTBE, in New York City.
The lower court proceedings involve an 11-day trial; the jury deliberated for an additional 11 days before reaching its verdict in 2009. The court held that Exxon Mobil was liable for the contamination and the jury found a damage award of $104.69 million attributable to Exxon Mobil of the total $250.5 million New York City claimed it would cost to remediate the contamination (42 percent of the fault was attributed to other petroleum companies).
U.S. District Judge Shira Scheindlin, who authored the lower court opinion, ruled that the company would not be liable for punitive damages because they hadn’t recklessly disregarded risks posed by MTBE. The appeals court agreed with Judge Scheindlin and denied cross-appeals by the City on the question of punitive damages.
The appeals court also rejected Exxon Mobil’s request for a retrial on the ground of juror misconduct. The company alleged that Judge Scheindlin should have declared a mistrial after one juror complained that she was threatened by another. Exxon Mobil claimed that the threatened juror, who was ultimately released, was harassed because her opinion differed from her fellow jurors’.
Several other similar complaints have been brought in courts around the country against Exxon Mobil and other oil companies. In April, a New Hampshire jury ruled that Exxon Mobil would have to pay $236 million for MTBE contamination of drinking water in the state, a verdict that the company is currently appealing.
MTBE has been used in U.S. gasoline at low levels since 1972 to replace lead as an octane enhancer. Its use in gasoline increased between 1992 and 2005 in order to fulfill oxygenate requirements set by Congress in the 1990 Clean Air Act Amendments. However, increasing numbers of studies have detected MTBE in groundwater throughout the country, in some instances contaminating sources of drinking water. Several states have enacted legislation banning MTBE use in gasoline – New York has banned MTBE since January 1, 2004.
Exxon Mobil has indicated through their spokesperson that the company intends to file an appeal to the United States Supreme Court.
For further information, please contact Devin McDougall.
June 21, 2013
Last week Mayor Bloomberg released a Report titled “A Stronger, More Resilient New York,” providing over 250 specific recommendations to make the City more resilient in the face of the rising sea levels and increased storm activity associated with climate change. The product of a Special Initiative formed in December 2012 in response to Superstorm Sandy, the Report covers a wide variety of measures ranging from beach nourishment and wetlands restoration to increasing the resiliency of the City’s transportation and healthcare systems and responding to insurance concerns.
Adaptation to protect residents and infrastructure from extreme storm activity is a critical issue for the City. With a 520-mile coastline, longer than those of Miami, Boston, Los Angeles, and San Francisco combined, the City’s population includes nearly 400,000 residents living in the newly revised FEMA Preliminary Work Maps Special Flood Hazard Area (SFHA) (the area that will be inundated by a flood event having a 1-percent chance of being equaled or exceeded in any given year, also sometimes called the base flood elevation or 100-year floodplain).
Notable proposals provided throughout the Report include:
- Providing bonus grants to accelerate cleanup of brownfields in the SFHA ;
- Identifying cost-effective measures to safeguard exposed hazardous substances in the SFHA and creating a catalogue of best practices;
- Installing cogeneration equipment at wastewater treatment plants around the City, which will generate backup electricity from the methane produced by the treatment process itself;
- Protecting the city’s 14 wastewater treatment facilities, all of which are located along the waterfront and are at risk in the event of a coastal storm;
- Increasing the capacity of parks to absorb floodwaters and the driving impact of surge-related wave action by restoring beaches and redesigning bulkheads in coastal parks;
- Creating a local storm surge barrier at Newtown Creek and at the mouth of the Gowanus Canal, both Superfund sites; and
- Constructing a multi-purpose levee with raised edge elevations to protect much of the East River shoreline below the Brooklyn Bridge and create a new area for commercial and residential development (called “Seaport City” and based off of Battery Park City along the Hudson River).
The report estimates that, should only the 37 highest priority “Phase 1 initiatives” be implemented, expected losses from a future storm like Sandy could be reduced by up to 25 percent, or $22 billion. These Phase 1 initiatives include such measures as: studying storm surge barriers at Newtown Creek to reduce “back door flooding”; launching a global design competition for integrated flood protection systems; and developing a one-stop website for all City and State waterfront permitting information.
For more information about climate change adaptation, please contact Michael Bogin.
Older Posts »