The plan focuses not only on waterfront access and redevelopment of waterfront sites, but also improving water quality, restoring and enhancing waterfront habitats, and improving coordination between governmental agencies with overlapping jurisdiction over waterways and waterfront sites – one of the major stumbling blocks that has stood in the way of effective action.  The plan also recognizes the need to consider and address the potential impacts of climate change and sea level rise in waterfront projects.

To advance these goals, the plan identifies site-specific projects in 22 reaches of the City’s waterways, and identifies several additional waterfront redevelopment sites.  The plan also includes specific steps that should be taken to implement NYHarborWay, the Bloomberg Administration’s initiative to make New York Harbor a major recreational destination, and to connect Brooklyn Bridge Park, Governors Island, Hudson River Park, The Battery, Ellis Island, Statue Liberty Island, the East River Esplanade and Liberty State Park by ferry and/or bike greenways.

SPR has successfully guided many major waterfront projects to completion, and the plan includes several current projects on which SPR has served or currently serves as counsel, including: completion of Brooklyn Bridge Park, the redevelopment of the Admiral’s Row site at the Brooklyn Navy Yard, redevelopment of the former Domino Sugar factory in Williamsburg, the proposed expansion of the New York Container Terminal on Staten Island, the next phase of development of Arverne by the Sea in the Rockaways, redevelopment of the Battery Maritime Building in Lower Manhattan, and redevelopment of Pier A in Battery Park.

The City will track the progress of its various waterfront initiatives on its website on an ongoing basis.  The plan and the updates can be accessed here.

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

New Hope owns and operates a renewable energy facility in the EAA, an area of the Florida Everglades that was formerly wetlands but has been hydrologically managed through pumps and drainage systems since the mid-20^th century to allow for agriculture.  New Hope’s facility, constructed on former sugarcane fields, generates electric power through the burning of non-usable portions of sugarcane as well as wood waste.  New Hope recently obtained state and local permits to construct a monofill on neighboring land, currently farmed for sugarcane, where it could place ash from the waste-burning operations, and thereby avoid trucking the ash to a distant landfill.

Existing ACOE regulations under the Clean Water Act provide that a permit is needed to conduct certain activities within wetlands.  However, exempt from the definition of wetlands are lands that do not support wetlands vegetation under normal circumstances.  The ACOE had in past rulemaking documents explained that “normal circumstances” was not to be read to include properties that had been transformed into dry land.  Also exempt from regulations are “prior converted croplands,” lands formerly wetlands but converted to agricultural use.  Rulemaking documents previously issued by the ACOE provided that a prior converted cropland could only lose such designation if wetland vegetation returned.  In 1993, the ACOE had determined that the land on which New Hope’s power facility is built was prior converted cropland. In addition, the ACOE’s Wetlands Delineation Manual provides that in order to be a regulated wetland, land must exhibit both wetlands hydrology and vegetation, unless one of three types of “atypical situations” apply: (1) an unauthorized activity resulting in the loss of one of these characteristics; (2) man-made creation of a wetland; or (3) natural events.

However, in 2009, the ACOE issued internal memoranda interpreting “normal circumstances” in hydrologically managed lands to mean “pumps off,” and stating that prior converted croplands lost such designation upon a change to non-agricultural use.  Based on these memoranda, the ACOE informed New Hope that it would likely need a permit to construct the proposed monofill.  New Hope filed a lawsuit challenging the memoranda as legislative rules that the ACOE had failed to promulgate in accordance with the APA.  The court agreed, holding that the memoranda extended the ACOE’s regulatory jurisdiction beyond that provided for in existing regulations, and diverged from the Wetlands Manual in deeming lands hydrologically managed with ACOE authorization an “atypical situation” to which the general delineation rules did not apply.  The court therefore enjoined the ACOE from applying these new rules.

New Hope Power Company was represented in the litigation by Daniel Riesel, Dan Chorost and Elizabeth Knauer of Sive, Paget & Riesel and Neal McAliley of White & Case.

SPR represents the Coalition for Buzzards Bay in the suit, which has been widely reported in the news media.  Read more on the suit from the Associated Press, Washington Post, and Boston Globe.  A copy of the Complaint can be accessed here (pdf).  For more information, contact Steven Russo.

In December 2008, ESDC determined to use its condemnation power to acquire 17 acres of privately-owned property, including petitioners’, in connection with Columbia’s expansion plan.  ESDC found that the project qualified under the Urban Development Corporation Act as both a “land use improvement project” (because the project would eliminate blighted conditions) and as a “civic project” (because the project would provide educational facilities).  The $6.28 billion project, which is being exclusively underwritten by Columbia, a private non-profit institution, will comprise 6.6 million gross square feet in 16 new buildings, 2 acres of open space, and other structures.  Petitioners contested ESDC’s designation of the project area as “blighted,” and challenged the integrity of the two neighborhood studies commissioned by ESDC that supported its blight finding, arguing that the studies were biased and demonstrated bad faith on the agency’s part.  Petitioners also argued that the “civic project” designation was impermissible because Columbia is a private, not a public, entity.

In Thursday’s Kaur decision, the Court of Appeals reaffirmed that the judiciary has a limited role in reviewing the actions of ESDC, a quasi-legislative entity.  Citing Goldstein, the Court noted that ESDC was authorized by the state legislature, and that a court “may only substitute its own judgment for that of the legislative body authorizing the project when such judgment is irrational or baseless.”  The Court rejected petitioners’ arguments that ESDC acted in bad faith and with pretext, finding no evidence to support such allegations.  The Court instead held that ESDC’s determination was made rationally and in good faith, and that the separate neighborhood conditions studies on which ESDC relied were creditable and not biased.  The Court then cited blight evidence dating back to the 1960s to reject petitioners’ argument that Columbia created blight by neglecting the project-area properties that it acquired starting in the early 2000s.  The Court also held that the UDC Act’s definition of a “substandard or insanitary” (i.e., blighted) area was not unconstitutionally vague.

The Court of Appeals made new law in New York by holding that “civic projects” under the UDC Act are not limited to public institutions, and may in fact include projects proposed by private educational institutions.  After noting that the Columbia project “unquestionably [] promote[s] education and academic research while providing public benefits to the local community,” the Court rejected the First Department’s determination that the statutory language is limited to public entities.  In a concurring opinion, Judge Smith stated that because the Court upheld ESDC’s blight determination, the civic project doctrine need not have been reached, and that it was subject to constitutional constraints that the Court failed to address.

Finally, the Court rejected petitioners’ claims that ESDC violated their procedural due process rights by closing the administrative record and proceeding with the condemnation despite ongoing disputes as to whether ESDC was required to turn over additional documents to petitioners.  The Court stated that a violation of the Freedom of Information Law (“FOIL”) only rises to a due process violation where petitioners can demonstrate that they were deprived of a meaningful opportunity to be heard, or demonstrating that materiality of the records sought through FOIL.  The Court found that ESDC did not withhold documents that formed part of the administrative record, and that petitioners had unfettered access to thousands of pages of documents, including those at the core of ESDC’s action.  Noting that the legislature intended for expedient condemnation proceedings that did not allow for any discovery, the Court held that petitioners failed to meet their burden.

According to the New York Times, petitioners plan to seek review of the decision by the United States Supreme Court.

SPR serves as environmental counsel for the Empire State Development Corporation, and Mark Chertok and Dan Chorost served as co-counsel to ESDC’s eminent domain counsel in the Kaur case.  David Paget and Dan Chorost served as co-counsel for ESDC in the Goldstein case.   A copy of ESDC’s appellate brief is available here (pdf), and reply brief here (pdf).

The Firm represented the Natural Resources Defense Council in connection with an amicus brief filed by NRDC in the litigation challenging the City law.  NRDC has been a staunch supporter of producer responsibility principles.  The State Act preempts the challenged City law, effectively mooting that litigation.  A copy of the Act is available here.

The plaintiff in the case sought recovery of costs incurred under a 1998 consent order which required him to reimburse the New York State Department of Environmental Conservation (“DEC”) for its costs of cleaning up tetrachloroethene (“PCE”) which had been discovered at 100 Oser Avenue site in Hauppauge, NY (the “Site”).  Costs incurred, and expected to be incurred, amounted to several million dollars.

Plaintiff alleged a claim for cost recovery pursuant to CERCLA § 107, and contribution under CERCLA § 113(f)(3)(B).  The Court ruled that the plaintiff’s 107(a) cost recovery claim failed because pursuant to his consent order plaintiff was, “not required to expend his own funds to remediate the Site” but instead had to “‘reimburse’ the DEC for the DEC’s response costs.”  (Slip. Op. at 14.)  Accordingly, plaintiff had not incurred costs of response within the meaning of CERCLA § 107 and could not assert a claim under that section.

With respect to plaintiff’s contribution claim under CERCLA § 113(f)(3)(B), the court held that while plaintiff was entitled to assert the claim, it was timebarred by a 3-year statute of limitations which began to run upon issuance of the consent order.  Plaintiff filed his suit approximately 5 years after the date of his consent order.

The Court’s holding on contribution is notable for two reasons.  First, the Court determined that the consent order had resolved plaintiff’s liability for purposes of § 113(f)(3)(B) despite the fact that plaintiff was required to pay back DEC costs in yearly installments over many years.  Plaintiff would not receive a release from liability unless he continued to pay and comply until all DEC’s costs were reimbursed.  Such a result could be decades away, and may never occur.  The Court nonetheless held that under Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc., – F.3d –, 2010 WL 626064 (2d Cir. Feb. 24, 2010), plaintiff’s consent order created a contribution claim under § 113(f)(3)(B).

The most significant aspect of the ruling relates to the statute of limitations which applies to § 113(f)(3)(B) contribution claims.  The Court noted a gap in the statute, the, “lack of a triggering event in § 113(g)(3) encompassing a state administrative order or a unilateral EPA order under § 106,” but held that in light of recent Supreme Court precedents, a three-year statute of limitations applies to contribution claims arising from settlements of liability with a state.  (Slip. Op. at 23.)  In this context, the “triggering event should be the date of the ‘settlement’ of that liability,”—here, the date of plaintiff’s consent order.  In so holding the Court rejected alternative theories that a six year limitations period, or no limitations period applies.  (Id. at 21-23.)  This holding clarifies a complex issue of statutory construction that has vexed courts for many years, and provides useful guidance to future litigants.

The following Sive Paget & Riesel litigators represented three defendants in the case: Daniel Riesel, Dan Chorost and Ashley S. Miller.

• A copy of the decision is available here (pdf)

As it has argued in several cases, DEC contended that the property in question did not meet the eligibility criteria for a “brownfield” because the Site was already subject to a voluntary cleanup agreement.  In a unanimous decision, the Court held that DEC had “improperly departed from statutory criteria,” noting that this result was “compelled” by its recent decision in East River Realty Co., LLC v. New York State Department of Environmental Conservation, 68 A.D.3d 564, 891 N.Y.S.2d 359 (1st Dept. 2009) (“ERRC”), which rejected such arguments by DEC.  As it had held in ERRC, the First Department also held that remand to DEC for a new determination was unnecessary in light of the extensive record before it.

HLP represents the third consecutive Appellate Division decision striking down DEC’s efforts to exclude properties from the BCP based on extra-statutory factors.  See also Destiny USA Dev., LLC v. New York State Department of Environmental Conservation, 63 A.D.3d 1568 (4th Dept. 2009) (“Destiny”).

The Court of Appeals will soon address related issues in a different context, having recently heard oral argument in an appeal where DEC’s exclusion of property was upheld based on DEC’s conclusion that the contaminants at issue did not exceed levels that would require remediation.  Lighthouse Point Property Assocs. v. New York State Department of Environmental Conservation, 61 A.D.3d 1438 (4th Dept. 2009).  HLP, ERRC, and Destiny all involved sites where the contaminant levels were significantly above DEC’s remediation standards, and where DEC conceded that remediation was necessary.

SPR represented HLP and ERRC in connection with their challenges to DEC’s exclusion of their property from the BCP.  For more information, please contact Daniel Riesel, Mark Chertok, Jeff Gracer, or Michael Bogin.

SPR’s comment letter identified multiple deficiencies in the DSGEIS related to potential impacts of concern to units of local government, including traffic, noise, visual, community character and land use impacts.  SPR’s comment letter also encouraged DEC to adopt regulations that would provide units of local government with meaningful advisory input to NYSDEC during well permitting.  Access a complete copy of SPR’s comment letter—which is attached to NRDC’s comment letter—here (pdf).

• See all posts related to Marcellus Shale and hydrofracking issues

DEC had argued that the property in question did not meet the eligibility criteria for a “brownfield.”  Generally a brownfield is defined as property whose redevelopment or reuse of may be complicated by the presence or potential presence of a contaminant.  The DEC contended that the property would have been redeveloped even without participation in the BCP, rendering it ineligible for the program.  In a unanimous decision, the Court rejected DEC’s argument that a property may be deemed ineligible for participation in the BCP on the ground that the property would have been remediated regardless of such participation.

In rejecting DEC’s denial of eligibility under its application of a “but for” test, the Court cited two recent brownfield cases that similarly found DEC’s reliance on extra-statutory factors arbitrary and capricious.  See Destiny USA Dev., LLC v. New York State Department of Environmental Conservation, 63 A.D.3d 1568 (4th Dept. 2009); HLP Props., LLC v. New York State Department of Environmental Conservation, 21 Misc. 3d 658 (Sup. Ct. N.Y. County 2008).

ERRC reaffirms the approach taken by the courts in Destiny and HLP, where the courts have required DEC to adhere to the eligibility criteria set forth in the BCP enabling statute, and struck down DEC eligibility decisions which seek to rely on factors outside the statute.

In addition to its reversal of DEC’s eligibility determination, the ERRC decision upheld the court below’s order that DEC accept the subject properties into the BCP.  The Court agreed that given the sufficiency of evidence before the lower court, remand to the agency was not required.

SPR represented ERRC in connection with its challenge to DEC’s exclusion of the subject property from the BCP.  For more information, please contact Daniel Riesel, Mark Chertok, Jeff Gracer, or Michael Bogin.

• Read a copy of the decision here
• Read more on brownfields issues