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 14, 2014
On December 11, 2013, the U.S. Environmental Protection Agency (“EPA”) proposed the addition of a site in Ridgewood, Queens to its National Priorities List (“NPL”). The NPL, more commonly known as the “Superfund List,” designates the country’s most hazardous waste sites for further investigation and long-term cleanup.
According to the EPA, the site is a former facility of the now-defunct Wolff-Alport Chemical Company located at the intersection of Irving and Cooper Avenues near the Brooklyn/Queens border. The company operated the facility from the 1920s until 1954; during this time, the company extracted rare earth elements from imported monazite sand and sold the extracted material to various commercial entities. Waste byproducts were disposed of into a nearby sewer and may also have been buried onsite. Process residues of monazite sand contain radioactive metals, such as thorium and uranium, and their decay products, such as radium. The company was reportedly a supplier of radioactive material to the Atomic Energy Commission (AEC), a forerunner to the U.S. Department of Energy, in the late 1940s and until operations ceased in 1954.
In 1988, an EPA investigation confirmed the presence of surface radiological contamination at the site. The level of contamination found was below the allowable dose limit to the public at that time. Since then, EPA has worked in conjunction with New York State and New York City in conducting radiological surveys at the site and identifying waste material and radioactivity throughout the property, beneath adjacent public sidewalks and streets and in nearby sewers “above levels expected to be found in a comparable urban area.” The agency has taken several interim steps to address the contamination already — most notable is the sealing of a hole at a nearby school from which radioactive gas was found to be leaking. The agency has already spent about $2 million on preliminary measures at the site to date.
The site area today includes a delicatessen/grocery, office space, residential apartments, auto and tire shops, two warehouses and a former rail spur which is now used for storage of steel crane equipment. The site is within 900 feet of an elementary school and is nearby to an intermediate school and daycare center.
The EPA will take public comments on the proposal until February 10th, 2014. The EPA will make final listing decisions after considering the relevant comments received during the comment period. Once the site is listed, EPA will search for parties potentially legally responsible for the contamination in an effort to hold them accountable for the costs of investigations and cleanups. The site would be the third active Superfund site in New York City, joining the Gowanus Canal and Newtown Creek.
For more information on this site or on the Superfund law, contact David Yudelson.
Priya Murthy is a law clerk with Sive, Paget & Riesel.
November 15, 2013
The Division of Environmental Remediation of the New York State Department of Environmental Conservation (DEC) has released its 2012-2013 Annual Report, noting key developments of the past State Fiscal Year (April 1, 2012 – March 31, 2013).
As reflected in the Annual Report, DEC’s environmental remediation programs affect many businesses across the state. For example, in the 2012-2013 State Fiscal Year, there were more than 18,000 actions that required intervention by the Division of Environmental Remediation; additionally, DEC had jurisdiction over 109,000 petroleum bulk storage tanks and 4,600 chemical bulk storage tanks.
Key developments discussed in the annual report include the following:
Brownfield Cleanup Program:
The past year saw an uptick in the number of projects approved to enter the state Brownfield Cleanup Program (BCP). In the past State Fiscal Year, 45 projects were approved, with 29% of these projects located in New York City. In prior reporting cycles since 2007, that number has ranged from 28-34. The increase in approved applications likely reflects the race to qualify for tax credits under the BCP, which are being phased out and will not be available for parties that do not receive their BCP Certificate of Completion by the end of 2015.
State Superfund Program
DEC’s authorization to bond new funds for the State Superfund Program has expired. DEC can use appropriations from prior years and cost recoveries to support the program. DEC received $12.1 million in cost recovery revenue in the past State Fiscal Year.
In the past State Fiscal Year, 13 “Class 2” sites, which are deemed to pose a significant threat to human health and/or the environment and require action, were added to State’s Inactive Hazardous Waste Site Registry. This number represents a decline from prior years; there had been at least 19 new Class 2 listings annually from the 2006-2007 through 2011-2012 State Fiscal Years.
Environmental Restoration Program
Funding for DEC’s Environmental Restoration Program, which reimburses municipalities for brownfield cleanup and redevelopment, has been revived: “Under the Cuomo administration’s New York Works capital infrastructure program, the 2013/2014 New York State Budget included $12 million which DER will use to complete cleanup of projects where funding had previously not been available.” New applicants to the program had not been approved since 2008 due to lack of funding.
Bulk Storage Program:
Revisions to the state’s Petroleum Bulk Storage and Chemical Bulk Storage regulations are under way, pursuant to a two-phase public participation process. In Phase One, initial informal draft revisions reflecting changes in federal law were released for public comment. Phase Two comprises the release of formal drafts and the acceptance of public comments thereon; the formal drafts would account for further changes in state and federal law and are expected to be issued in the 2014-2015 State Fiscal Year.
Liquefied Natural Gas:
DEC has proposed new regulations for the siting, storage and transport of liquefied natural gas in New York State. The agency expects to finalize and promulgate the regulations in the present State Fiscal Year. Public comments on the proposed regulations are being accepted until December 4, 2013.
Draft revisions to DEC’s regulations on the prevention and control of radioactive material are expected to be released in the present State Fiscal Year. New regulations establishing cleanup criteria for remediation of radioactive contaminated sites are also expected in the present State Fiscal Year.
Vapor Intrusion Initiative:
DEC identified 421 sites to be evaluated for vapor intrusion, where a remedial plan had been approved before vapor intrusion was recognized as a major concern. As of March 2013, 318 of these sites have been evaluated and 108 sites are undergoing such evaluation.
Former Manufactured Gas Plants Initiative:
As of March 2013, DEC has issued or entered into cleanup orders or agreements for 213 of 221 identified former manufactured gas plant facilities.
For more information on the Division of Environmental Remediation’s programs, please contact Michael Lesser.
July 9, 2013
On June 27, 2013, the U.S. Court of Appeals for the Second Circuit upheld a lower court decision in Sahu v. Union Carbide Corporation, denying relief to a group of Indian citizens who had sued Union Carbide over water pollution allegedly stemming from operations at the infamous Bhopal plant. In 1984, the Bhopal plant was the site of a disastrous gas leak that killed thousands of local residents and led to the plant’s closure. The Sahu plaintiffs claimed that the Bhopal plant’s operations had also contaminated soil and groundwater, causing a variety of ailments in local residents.
A key issue in the case was the relationship between the Union Carbide Corporation (“UCC”) and Union Carbide India Limited (“UCIL”), an Indian subsidiary of UCC which operated the plant. The Bhopal plant was originally used only to mix certain chemical components into a pesticide. In the 1970s, UCIL, with the approval and assistance of UCC, retrofitted, or “back-integrated,” the Bhopal plant in order to manufacture the pesticide components, not just mix them. Union Carbide sold its stake in UCIL in 1994; the Sahu case was filed in 2004, although several of the Sahu plaintiffs were also plaintiffs in an earlier class action filed in 1999 and dismissed in 2004 pursuant to the statute of limitations.
The Bhopal plant’s operations generated hazardous waste, including solid waste disposed of in pits and storage tanks and wastewater pumped into lined evaporation ponds. According to the Sahu plaintiffs, the Bhopal plant’s waste seeped into the groundwater, where it contaminated local residents’ drinking water wells. The Sahu plaintiffs sought monetary damages and an injunction requiring both remediation and medical monitoring expenses from UCC.
The Sahu plaintiffs’ claim was based on New York state law, which allows suit against entities that participated in the creation or maintenance of a “nuisance,” defined as conduct or omissions that endangering the health and safety of a considerable number of people. There appeared to be little dispute that the contamination at the Bhopal plant, itself, constituted a public nuisance under New York law. Nevertheless, the Second Circuit concluded that none of the actions taken by UCC – approving the plan to back-integrate the Bhopal plant, transferring the technology used to manufacture the pesticide, providing a basic design for waste treatment at the plant, and some limited involvement in remediation of the pollution – legally amounted to creation or maintenance of the nuisance itself. The Second Circuit also upheld the lower court’s rejection of veil-piercing and agency-based arguments by the plaintiffs that UCC should be held liable for UCIL’s actions. Interestingly, both the parties to the case and the court agreed that New York law, rather than Indian law, should be applied to the case, despite the fact that the contamination in question occurred overseas.
For further information, contact Jeff Gracer or Ed Roggenkamp.
April 26, 2012
Earlier this month, a federal court in New Jersey denied Lockheed Martin Corporation’s (“Lockheed Martin’s”) motion to dismiss state and federal claims alleging personal injuries and reduced property values arising from soil vapor intrusion. Leese v. Lockheed Martin Corp., No. 11-5091, 2012 U.S. Dist. LEXIS 50963 (D.N.J. April 11, 2012). This decision allows the case to proceed to discovery and a potential trial on the merits. This case and others like it highlight the importance of considering vapor intrusion impacts in property and corporate transactions, especially when there are known or suspected off-site contaminant plumes. In addition to private party litigation, vapor intrusion is increasingly capturing the attention of regulators in New York and elsewhere, causing them to reopen remediations that were previously thought to be complete.
In Leese v. Lockheed Martin Corp., plaintiffs Michael and Ashley Leese and their minor children allege that groundwater under their property and indoor air within their home are contaminated with trichloroethylene (“TCE”) and tetrachloroethylene (“PCE”) released from defendant Lockheed Martin’s neighboring property.
Lockheed Martin remediated TCE contamination at its property under an agreement with the New Jersey Department of Environmental Protection (“DEP”), and, at DEP’s request, conducted near-slab and sub-slab soil vapor testing at surrounding residences. Lockheed Martin’s testing revealed elevated levels of PCE beneath the Plaintiffs’ property, and the Plaintiffs’ subsequent air quality testing detected PCE in the basement and first floor of their home. Plaintiffs filed suit under the New Jersey Spill Act, the New Jersey Water Pollution Control Act, the Resource Conservation and Recovery Act, and New Jersey common law under theories of nuisance, trespass, strict liability and negligence.
In support of its motion to dismiss, Lockheed Martin argued, among other grounds, that there was no possible connection between TCE in the groundwater underneath the Plaintiff’s home and any residential exposure. The Court rejected that claim, citing the Environmental Protection Agency’s finding that “TCE can be released into indoor air from … vapor intrusion … and volatilization from the water supply.”
Viewing the facts in a light most favorable to the Plaintiffs, the Court found that Plaintiffs had given Lockheed Martin sufficient notice of their claims and raised a reasonable expectation that discovery would reveal evidence to support all of their claims. As the Court noted, depending on the nature of the facts unearthed throughout the discovery process Plaintiffs may still face a summary judgment motion by Lockheed Martin. Regardless of the ultimate outcome of this case, this decision demonstrates the courts’ willingness to recognize vapor intrusion as a legitimate basis for environmental claims, and serves as a valuable reminder to be cognizant of potential liability arising from vapor intrusion.
Sive, Paget & Riesel represents a number of property owners on matters relating to vapor intrusion. For more information on this topic, please contact Christine Leas, Jeffrey Gracer or Michael Bogin.
December 8, 2011
On November 17, 2011, the New York State Public Service Commission (“PSC”) decided to postpone its decision on Covanta Energy Corp.’s (“Covanta’s”) petition to classify waste-to-energy power as “renewable” under New York’s Renewable Portfolio Standard (“RPS”). New York’s RPS aims to produce 30% of the state’s electricity from “renewable sources” by 2015, up from approximately 21% in 2009.
To attain that goal, the RPS provides production incentives for renewable electricity generation, funded through a surcharge on ratepayers’ electricity bills and administered by the New York State Energy Research and Development Authority (“NYSERDA”). Eligible renewable electricity generators participate in a competitive solicitation process for the incentives, which are provided based on the megawatt-hours of renewable electricity delivered toNew York ratepayers or used on site. Additionally, the generator transfers all rights to the “RPS attributes” to NYSERDA, so the generator cannot benefit from the resulting pollution reductions under other emissions trading programs.
Most of the incentives to date have gone to wind, hydroelectric, biomass, and landfill gas projects, though a range of other sources – from solar, tidal and wave energy to anaerobic digesters converting agricultural biogas into electricity and heat – are also eligible. Covanta’s prior requests to include waste-to-energy facilities in the RPS, in 2004 and 2010, were both denied by the PSC.
Covanta’s petition presents a controversial question, as waste-to-energy plants provide an alternative to fossil fuels, but simultaneously present a number of environmental issues that are different from those associated with traditional renewable energy sources. Environmentalists and the New York Attorney General’s Environmental Protection Bureau have opposed the petition, citing, among other things, concerns regarding mercury emissions.
Proponents of waste-to-energy facilities argue that incineration for power production is better for the environment than transporting the waste to landfills. Covanta submitted a letter to the PSC on December 6th clarifying its position and highlighting the greenhouse gas benefits of waste-to-energy facilities. Covanta reasons that environmental benefits from waste-to-energy production make waste-to-energy a more environmentally-attractive option than landfill gas recovery, a method which is currently RPS-eligible.
A middle ground approach has been adopted in other states, including Connecticut, New Jersey, Massachusettsand Pennsylvania, whereby waste-to-energy facilities may receive subsidies, but not to the same degree as their zero emissions renewable generator counterparts. DEC officials have supported this compromise as an appropriate measure in the event that the PSC decides to allow waste-to-energy plants in the RPS.
For more information on the firm’s practice in the areas of energy and waste-management, contact Jeff Gracer and Paul Casowitz.
Update (December 14, 2011): In a recent letter to the PSC, Covanta withdrew its petition to classify waste-to-energy power as renewable under the New York RPS.
June 17, 2011
After five years of litigation, an appeals court ruled last week that New York City can proceed with the construction of a marine waste transfer station on the Upper East Side. Local residents had challenged the project, alleging that it appropriated public parkland for non-park purposes and that the city was required to seek legislative approval of the project.
The appeals court upheld the trial court’s findings that the parcels at issue are not public parkland, and that even if they were, the proposed project would not substantially intrude upon them. The court explained that public parks are created either expressly, via deed or legislative enactment, or by implication, through continuous use indicating an “unequivocal” intent to dedicate the parcel as public parkland.
The court found that neither of the two parcels at issue, a recreational complex known as Asphalt Green and a pedestrian path known as Bobby Wagner Walk, qualified as public parkland under this test. The court held that Asphalt Green was not expressly dedicated as parkland because it was acquired by the City for non-park purposes and that a 1989 assignment of part of the parcel to the Department of Parks was conditioned on not mapping that part as public parkland. Asphalt Green did not become public parkland by implication, the court reasoned, because it is operated by a non-City entity and because access is restricted 70% of the time to those who pay membership fees. With respect to Bobby Wagner Walk, the court commented only that it can be “distinguish[ed]…from a park” because the “Department of Transportation owns the property, and it functions primarily as a thoroughfare.”
The new marine transfer station is part of a 2006 strategic plan by Mayor Bloomberg to manage the over 11,000 tons of solid waste the city produces daily. The Comprehensive Solid Waste Management Plan, which according to the New York Times is “affectionately known” as “the Swamp,” was the product of intense negotiations over the equitable siting of new waste facilities in the wake of the closing of the Fresh Kills landfill on Staten Island.
Devin McDougall is a summer associate at Sive, Paget & Riesel
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