February 16, 2010
On Wednesday, February 11, the First Department of the New York State Supreme Court, Appellate Division, held for the second time that the Department of Environmental Conservation (“DEC”) improperly excluded a Manhattan property from the Brownfield Cleanup Program (“BCP”) HLP Properties, LLC v. New York State Department of Environmental Conservation, — N.Y.S.2d —-, 2010 WL 455321 (1st Dept. Feb. 11, 2010) (“HLP”).
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.
January 4, 2010
On December 30, Sive, Paget & Riesel (“SPR”) submitted a comment letter on behalf of the Natural Resources Defense Council (“NRDC”) addressing deficiencies in the Draft Supplemental Generic Environmental Impact Statement (“DSGEIS”) prepared by the New York State Department of Environmental Conservation (“NYSDEC”) regarding proposed natural gas extraction from the Marcellus Shale formation in the Southern Tier of New York State. SPR’s comment letter, prepared by Steven Barshov and Jessica Steinberg, focused principally on matters of concern to towns and other units of local government within whose territory such proposed natural gas drilling would occur.
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).
December 18, 2009
In a significant decision on eligibility of property for the New York Brownfield Cleanup Program (“BCP”), on Thursday, December 17, the First Department of the New York State Supreme Court, Appellate Division, held that the Department of Environmental Conservation (“DEC”) improperly excluded three Manhattan properties from the BCP that qualified under the Program’s definition of a “brownfield site.” In so holding, the appellate court affirmed the judgment of the lower court, which had set aside the DEC’s decision to exclude the properties. East River Realty Co., LLC v. New York State Department of Environmental Conservation, — N.Y.S.2d —-, 2009 WL 48411151 (1st Dept. Dec. 17, 2009) (“ERRC“).
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.
December 17, 2009
The Manhasset Lakeville Water District has secured a $2.75M settlement for costs incurred in response to contamination of the aquifer underlying the Water District’s service area. Sive Paget & Riesel represented the Water District in its efforts to recover these costs.
The Water District provides drinking water to its 45,000 customers in Manhasset, Great Neck, and New Hyde Park, NY. After Freon-22 was detected in the aquifer waters, the Water District was forced to build a treatment system to remove the contaminants and render the water safe for public consumption in compliance with New York State drinking water quality standards.
SPR assisted the Water District in locating parties that were potentially responsible for the contamination, investigating the historic source of the contamination, and bringing a federal litigation in the Eastern District of New York against the owners of the source of the contamination for recovery the Water District’s costs. The litigation asserted federal claims under the citizen suit provisions of the Safe Drinking Water Act (SDWA) and the Resource Conservation and Recovery Act (RCRA).
The Water District has now settled certain of its claims in that litigation for $2.75M. These settlement funds will offset costs incurred to build the treatment system, legal and engineering fees, as well as the ongoing operation and maintenance costs of removing contaminants from the drinking water supply. The settlement also serves as an important example to public water districts, demonstrating that ratepayers need not bear the burden of addressing environmental contamination in the water supply.
The following SPR attorneys represented the Water District in this matter: David Yudelson, Daniel Riesel, Dan Chorost, and Ashley Miller.
August 14, 2009
The construction of Brooklyn Bridge Park continues, with the building of the “grand staircase” which will overlook the Brooklyn Bridge, downtown Manhattan, and New York Harbor. The website NewYorkology has posted some photos of the staircase, and explains that it is constructed from recovered materials:
The stones are actually recycled and worn with age and graffiti from another East River location … the Roosevelt Island Bridge, which is undergoing its own massive reconstruction project.
SPR represented the Brooklyn Bridge Park Development Corporation (BBPDC) in connection with the environmental review of the park under the New York State Environmental Quality Review Act (SEQRA), and subsequent litigation surrounding the development and approvals of the park. See more examples of SPR’s development and land use work.
View more photos of the construction at NewYorkology.
June 5, 2009
Last night, the Gowanus Canal Conservancy hosted a debate, moderated by Ted Wolff of Manatt, Phelps & Phillips, between SPR’s Dan Chorost and Riverkeeper’s Josh Verleun, on the topic of the U.S. Environmental Protection Agency’s proposal to add Brooklyn’s Gowanus Canal to the Superfund National Priorities List (“NPL”). The Canal borders the communities of Park Slope, Cobble Hill, Carroll Gardens and Red Hook, and empties into New York Harbor. Since the 1860s, the Gowanus has hosted numerous industrial operations, including manufactured gas plants, mills, tanneries, and chemical plants. Decades of industrial discharges from these historic uses, as well as stormwater runoff and combined sewer overflows, have resulted in portions of the Gowanus Canal needing to be remediated.
While virtually everyone agrees that cleaning up the Gowanus is an important public goal, its inclusion in the Superfund program is by no means the only, or best, option for achieving that goal. SPR represents several owners and prospective owners of properties on or near the Gowanus, and SPR attorneys David Yudelson and Ashley S. Miller have written a briefing paper arguing that Superfund listing should be undertaken only as a last resort (pdf).
At yesterday’s Gowanus Canal Conservancy debate, Dan Chorost argued that there are better alternatives to a Superfund listing, since an EPA listing would disrupt ongoing cleanup efforts, generate years of lawsuits among potentially responsible parties, threaten much-need private investment in the area, and ultimately delay the cleanup of the Gowanus. The City of New York has prepared a detailed alternative cleanup plan for the Gowanus that calls for EPA oversight without including the Gowanus on the NPL. Josh Verleun of Riverkeeper argued that despite Superfund’s limitations, it is nonetheless the appropriate mechanism for cleaning the Gowanus, and the federal government is best situated to undertake the remediation.
EPA recently extended until July 8, 2009 the public comment period for its proposed NPL listing of the Gowanus Canal. To submit a comment to EPA, click here. For more information on this issue, contact Dan Chorost.
May 28, 2009
Governors Island is opening its doors to the public for the summer season of 2009 beginning May 29, and will be open Fridays through Sundays until October 11th. This year, according to the Governors Island Blog, island visitors will have access for the first time to 2.2 miles of promenade around the island.
SPR is environmental counsel to the Governors Island Preservation and Education Corporation (GIPEC) in connection with the planning of a new proposed park on the island. Read about island activities, history, visiting hours, and more at the links below.
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