February 28, 2014
Earlier this month, the New York State Department of Environmental Conservation (“DEC”) issued a public notice of its draft State Pollutant Discharge Elimination System (“SPDES”) permit for stormwater discharges from Municipal Separate Storm Sewer Systems (“MS4s”) owned or operated by the City of New York.
The following areas are covered under the new MS4 permit:
- New York City-owned storm sewers that ultimately discharge to MS4 outfalls owned by New York City; High Level Storm Sewers (with the exception of facilities that are sited near High Level Storm Sewers but discharge to combined sewers) and Bluebelts that ultimately discharge to MS4 outfalls owned by New York City;
- Facilities or areas covered by the SPDES general permits for stormwater discharges from construction and industrial activities, if such discharges ultimately flow to MS4 outfalls owned by New York City; and
- New York City municipal operations and facilities that drain by overland flow (direct drainage) to surface waters of New York State.
The proposed permit requires that the City develop an enforcement policy to maintain the authority to carry out stormwater management programs and to ensure compliance with such programs. For example, the City must have control of pollutants flowing into the system, access to inspect sources of pollutant discharges, and the ability to compel compliance and issue citations.
Notwithstanding these enforcement responsibilities, the permit would not cover, and thus would exempt the City from administering and monitoring many activities that are significant sources of stormwater runoff in the City, including discharges through non-City owned pipes and outfalls or from non-City owned facilities that drain by overland flow to surface waters of New York State. Instead, DEC will continue to regulate such facilities and activities through the SPDES general permit system (such as the Construction General Permit and Multi-Sector Industrial Permit) or individual SPDES permits.
Stormwater Management Program Plan (SWMP)
The City is also required, as a condition of the proposed general permit, to develop an SWMP describing how it will meet the requirements of the permit. The SWMP must provide for Public Education & Outreach; Public Involvement/Participation; Illicit Discharge Detection & Elimination & Mapping; Construction Site Stormwater Runoff Control; Post Construction Stormwater Management; Industrial Sources; Control of Floatables and Settleable Solids; Monitoring & Assessment of Controls; Impaired Waters; and Recordkeeping/Reporting.
The SWMP is a significant undertaking for the City. Under the draft MS4 Permit, the SWMP would have to be submitted to DEC within three years of the effective date of the permit.
Comments on the proposed permit are being accepted through March 5, 2014. For more information, see the NYSDEC Fact Sheet or contact Michael Bogin or Maggie Macdonald.
February 10, 2014
In an eventful month for parkland alienation cases in New York City, two recent state court decisions interpreted different issues pertinent to the public trust doctrine, which requires approval from the New York State legislature before parkland may be alienated for non-park uses.
The rulings from New York State Supreme Court justices in Manhattan and Brooklyn addressed, respectively, what proof is required to demonstrate that a parcel has been dedicated as parkland by implication and what activities constitute an appropriate “park use.” In both cases, the Courts ruled that the City had violated the public trust doctrine and was required to seek the approval of the State Legislature before proceeding.
Raritan Baykeeper v. New York City, Index No. 31145/06 (Sup. Ct. Kings Cnty., Decided Dec. 20, 2013)
Filed in 2006, this long-running litigation involves a 20-acre composting facility operated by the City Department of Sanitation in Spring Creek Park in Old Mill Creek, Brooklyn. The facility was intended to process leaves and other organic waste collected from around the City for use as fertilizer in Spring Creek Park and other parks.
Petitioners alleged that the placement and operation of the composting facility within Spring Creek Park violated the public trust doctrine, on the basis that a solid waste management facility could not be considered an appropriate park use, that the public was deprived of recreational access to the area of the facility, and that the facility created an unbearable nuisance. The City argued that the composting facility fell within the meaning of a legitimate “park use” under the public trust doctrine because the compost would be used in park maintenance.
Interpreting the term “park use,” the Court focused on whether the use was consistent with the public’s recreational enjoyment of the park, and held that the composting facility was not, noting the incompatibility between the “industrial scale processing of waste” at the Spring Creek Park facility and traditional and legitimate park uses. The Court cited a spectrum of cases on which some private uses such as restaurants and holiday markets were held to be non-violative of the public trust doctrine while solid waste disposal sites were not legitimate park uses.
Under the terms of the Court’s order, the City is enjoined from operating the composting facility until it obtains legislative approval.
A full copy of the Raritan Baykeeper decision is available here.
Glick v. Harvey, Index No. 103844/12 (Sup. Ct. N.Y. Cnty., Decided Jan. 7, 2014)
The second recent parkland alienation decision concerns the City-approved expansion plans proposed by New York University (“NYU”) for an area in Greenwich Village south of West 3rd Street and north of Houston Street, on which NYU plans to build a number of new campus facilities. The litigation focused on the fate of four parcels of land within that area – known as Mercer Playground, LaGuardia Park, LaGuardia Corner Gardens, and the Mercer-Houston Dog Run – all of which the petitioners alleged to be dedicated parkland that could not be alienated under the NYU plan without the approval of the State Legislature.
Courts have repeatedly held that land can become parkland (and thus covered by the public trust doctrine) either through express or implied dedication. Long-continued use of a parcel for park purposes can constitute dedication by implication. Because the parcels at issue in this case are mapped as streets and not as parkland, the issue of implied dedication was central to the Court’s decision.
This high-profile case included testimony from a number of former City officials on behalf of the petitioners, including former commissioners of the Department of Transportation and the Department of Parks and Recreation. The Court looked to the affidavit of longtime Parks Commissioner Henry Stern in evaluating a list of factors that could help determine whether implied dedication had occurred, including long-time, continuous use of the land for park purposes, Parks Department signage, maintenance of the property by the Parks Department, and public statements by City officials identifying the property as parkland.
The Court ruled that despite some evidence presented by the City that the use of the parcels as parks was intended to be temporary, the Department of Parks and Recreation also treated three of the four parcels as parks through signage and maintenance efforts, limiting its ability to later claim that the parcels had not become parkland. The City must now seek approval from the State Legislature before the NYU plans for these parcels can move forward. The City Law Department has not announced whether it plans to appeal.
The Glick decision has important implications for the City’s use of non-parkland sites for long-term recreational uses in programs such as Greenstreets and GreenThumb gardens. Although the petitioners demonstrated longstanding use of three of the four parcels as parkland, the City had also maintained official Department of Transportation jurisdiction over the properties to allow for future non-park uses. Despite existing case law in the First Department holding that there could be no implied dedication where the owner has expressed contrary intent, the Court ruled that long-continued use of the land for park purposes may be sufficient to establish dedication by implication.
A full copy of the Glick decision is available here.
January 22, 2014
Friends and Residents of Greater Gowanus (“FROGG”), a nonprofit organization, has proposed the listing of a new historic district – the Gowanus Canal Historic District – on the National and State Registers of Historic Places. According to FROGG’s proposal, the proposed historic district encompasses just over 50 blocks lying roughly along the Gowanus Canal in Brooklyn and covering 369 properties, including three bridges over the Canal, several former industrial buildings and factories dating back to the 19th century, and a wide range of residential, commercial, and mixed-use buildings.
In 2006, the New York State Office of Parks, Recreation and Historic Preservation (“OPRHP”) determined that the corridor immediately surrounding the Gowanus Canal was eligible for listing on the National and State Registers. In its recent nomination, FROGG has proposed listing an enlarged district on both sides of the canal that extends as far west as Fourth Avenue and as far east as Court Street.
Section 14.09 of the New York State Historic Preservation Act and Section 106 of the National Historic Preservation Act require consultation with OPRHP to ensure that any State- or federally-funded or approved project minimizes or avoids impacts to properties that are listed on (or eligible to be listed on) the Registers. Thus, listing of the proposed district would require projects within and around the district that require approvals or funding from any State or federal agency to be undertaken in consultation with OPRHP. Owners of income-producing properties added to the Registers may also qualify for certain tax benefits.
Owners of properties within the proposed district may object to the listing of their properties. If a property’s sole owner (or, for multiple-owner properties, a majority of the owners) objects, the property will not be listed on the National Register. Property owners’ objections does not legally prevent their properties from being listed in the State Register if the proposed historic district is accepted for listing by OPRHP; however, OPRHP has typically not listed properties over owners’ objections.
A community meeting on the proposal is scheduled for February 11, 2014 from 6:30 to 8:00 p.m., at 232 Third Street in Brooklyn. Comments on whether the proposed historic district should be nominated to the National and State Registers are due by March 12, 2014 to the State Historic Preservation Officer Dan McEneny, Division for Historic Preservation, N.Y. State Office of Parks, Recreation and Historic Preservation, Peebles Island, P.O. Box 189, Waterford, NY 12188-0189. The State Historic Preservation Review Board will consider the nomination at its next meeting on March 13, 2014.
For more information, contact David Yudelson or Michael Bogin.
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.”
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