Gibbons Law Alert
The New York State Department of Environmental Conservation (NYSDEC) has proposed amendments to regulations governing the Brownfield Cleanup Program (BCP), the state Superfund program, and other remedial programs. The proposals would affect many important aspects of NYSDEC’s cleanup programs.
Owners and developers of sites enrolled in New York City’s environmental remediation programs should be aware of new enforcement rules. The rules provide for new reporting requirements and strengthened enforcement mechanisms and penalties. Background About New York City Environmental Remediation Programs The New York City (NYC) Mayor’s Office of Environmental Remediation (OER) manages NYC’s Voluntary Cleanup Program (VCP) and E-Designation Program (EDP). Under the VCP, environmental site investigations and remediations are conducted with OER oversight. After a site is remediated, OER issues a notice of completion (NOC), which provides that NYC “shall not take or require any further investigatory or remedial action” at the site.[1] The New York State Department of Environmental Conservation (NYSDEC) is also unlikely to require further action at sites with NOCs, pursuant to a Memorandum of Agreement between NYSDEC and OER.[2] NOCs may be assigned to third parties, such as the purchaser of a site that has been cleaned up.[3] The VCP also provides other benefits, including hazardous waste fee exemptions and monetary grants. By contrast to the VCP, the EDP is a mandatory program. It applies to specific sites given “E-Designations” or similar Restrictive Declarations because of potential contamination or other issues identified during a zoning action. For instance, sites previously zoned only for manufacturing that have been rezoned to...
A case that shares the elements of a crime thriller – massive illegal dumping of toxic construction debris in a public park and playground, corrupt public officials, a special grand jury investigation and criminal prosecutions – has broken new ground on when the statute of limitations runs on a natural resource damages claim. Seggos v. Datre, a case relating to the closure of a public park in an environmental justice area due to illegal dumping of hazardous waste, will proceed now that a federal judge has rejected a request brought by 17 law firms to find that it had been filed too late. The complaint in the case, pending in the U.S. District Court the Eastern District of New York, alleged that in 2013 and 2014, tens of thousands of tons of construction and demolition debris and related waste (“C&D”) were dumped in Roberto Clemente Park (“Park”) in the hamlet of Brentwood, New York, an environmental justice community located in the Town of Islip on Long Island. The C&D was brought to the Park from construction sites throughout the New York City metropolitan area. The New York Attorney General, suing on behalf of the New York State Department of Environmental Conservation (NYSDEC) Commissioner and the State of New York (together, the “State”), brought the case to...
Lisa Garcia will give her first public presentation in her new capacity as USEPA’s Region II Administrator at the NYSBA Environmental & Energy Law Section’s annual webinar on Superfund/Brownfield Update 2021: Federal and State Environmental Law and Policy on Wednesday, December 8, 2021.
New York State Department of Environmental Conservation (NYSDEC) Commissioner, Basil Seggos, announced last week that he is directing the Department to conduct a new investigation of potential per- and polyfluoroalkyl substances (“PFAS”) contamination in consumer products. PFAS have been designated as chemicals of emerging concern by the U.S. Environmental Protection Agency (EPA). Specifically, Commissioner Seggos has directed the Department to “take a hard look at new science shared by the U.S. Environmental Protection Agency about potential PFAS contamination in consumer products, including insecticides, pesticides, and other crop protectant products packaged in fluorinated high-density polyethylene (‘HDPE’) containers.” Earlier this month, the EPA had issued a press release that stated, “the agency has determined that fluorinated HDPE containers that are used to store and transport a mosquito control pesticide product contain PFAS compounds that are leaching into the pesticide product.” The EPA press release that triggered the Commissioner’s directive announced the EPA’s investigation into companies that use fluorinated containers and companies that provide container fluorination services, in an effort to identify potential sources of contamination. The directive from Commissioner Seggos is the latest in a line of actions taken by New York to address PFAS contamination, including a statewide investigation of potential sources of PFAS and the establishment of drinking water maximum contaminant levels for two PFAS...
Within the past several days, both the U.S. Environmental Protection Agency (EPA) and the New York Empire State Development Corporation (ESD) have provided updated guidance clarifying the standards for deciding what types of work may proceed at hazardous waste sites during the COVID-19 pandemic. EPA Interim Guidance on Site Field Work Due to Impacts of COVID-19 EPA’s April 10, 2020 interim guidance supplements the previously-issued March 19, 2020 guidance from the Office of Land and Emergency Management. It applies to response actions at cleanup and emergency response sites where EPA is the lead agency or has direct oversight or responsibility for the work, including response action work that may be conducted by states, tribes, other federal agencies, and potentially responsible parties (PRPs). At these sites, EPA will continue to make decisions on a case-by-case basis regarding ongoing site activities, with top priority given to protecting the health and safety of the public and maintaining the health and safety of EPA personnel and other on-site cleanup partners. The guidance also directs Regions to consider other important priorities, such as whether local officials have made specific requests to suspend work, whether on-site workers have tested positive or shown symptoms of COVID-19, and whether social distancing at specific sites is possible. In making decisions to reduce or suspend...
As noted in our blog published on March 24, Governor Andrew Cuomo’s March 20, 2020 Executive Order 202.8 directed all “non-essential” businesses to implement remote work policies for 100% of their workforces, effective March 22 through April 19, 2020. The Empire State Development Corporation (ESDC) issued initial guidance on March 24, 2020, whereby it interpreted the Order to allow, as a category of “essential business,” “construction,” “including skilled trades such as electricians and plumbers,” and “for essential infrastructure or for emergency repairs and safety purposes.” ESDC updated and clarified its guidance on March 27, stating that “[a]ll non-essential construction must be shut down, except for emergency construction” and certain types of “essential construction.” Per the updated guidance, “emergency construction” includes “a project necessary to protect health and safety of the occupants, or to continue a project if it would be unsafe to allow to remain undone until it is safe to shut the site.” “Essential construction” includes “roads, bridges, transit facilities, utilities, hospitals or health care facilities, affordable housing and homeless shelters.” Even at emergency or essential construction sites, social distancing must be able to be maintained, or the site must shut down. Violations are punishable by fines of up to $10,000. On March 30, the New York City Office of Environmental Remediation (OER) and...
Gibbons Director David J. Freeman will serve as Program Co-Chair of an upcoming New York State Bar/New York City Bar conference on Federal and New York State brownfield and Superfund programs. The conference will take place from 10:00 a.m. to 3:00 p.m. on December 12, 2019 at the New York City Bar Association, 42 West 44th Street, New York, NY 10036. The program’s distinguished faculty includes New York State Attorney General Letitia James, Environmental Protection Agency (EPA) Region 2 Administrator Pete Lopez, and other officials from the EPA, the New York State of Department of Environmental Conservation (NYSDEC), the New York State Office of Attorney General, and the New York City Office of Environmental Remediation. The topics to be discussed will include: trends in federal Superfund enforcement, including natural resource damages claims and the impact of the Superfund Task Force recommendations; NYSDEC policies and practices in implementing the 2015 Amendments to the Brownfield Cleanup Act; the intersection between Superfund and brownfields, focusing on developments at the Gowanus Canal Superfund Site; and an analysis of case law developments in these areas. Click here for a brochure describing the program and here for a further description and registration information.
The New York State Department of Environmental Conservation (“DEC”) announced on June 28, 2018 that it had adopted a rulemaking package directed at updating its regulations relating to the State Environmental Quality Review (“SEQR”). The updates – DEC’s first to its SEQR regulations in more than two decades – are the product of an effort that began in February 2017 with the DEC’s filing of an initial notice and, following a series of public comment periods and subsequent revisions, culminated with its publication of the Final Generic Environmental Impact Statement (“FGEIS”) and revised text of the regulations. As revised, the regulations become effective on January 1, 2019 and apply to all actions for which a determination of significance has not been made by January 1, 2019. For projects that receive a determination of significance made prior to January 1, 2019, the existing SEQR regulations (which originally took effect in 1996) will continue to apply. Once effective, the revised regulations could have a significant impact on SEQR’s applicability to future development projects. The new regulations contemplate a number of mechanical changes to the environmental review process itself, including mandatory scoping of environmental impact statements, changes to the required content of environmental impact statements (“EIS”), as well as new requirements relating to the preparation and filing environmental impact...
The New York State Department of Environmental Conservation (NYSDEC) recently announced proposed amendments to the regulations implementing the State Environmental Quality Review Act (“SEQRA”), 6 N.Y.C.R.R. Part 617. The amendments mark the first update to the SEQRA regulations in over 20 years. According to a press release issued by the NYSDEC, “[t]he update is designed to encourage smart growth and sustainable development across the state” and is intended to compliment the agency’s implementation of the New York State Lean Initiative, which the NYSDEC says has “improved public responsiveness and performance at DEC while maintaining high standards of environmental and natural resource protection.” The press release explains that “[t]he proposed amendments to SEQR will both streamline and strengthen the State’s environmental review process by expanding the actions not subject to further review, known as Type II actions, modifying certain thresholds for actions deemed more likely to require the preparation of an environmental impact statement (EIS), making scoping of an EIS mandatory rather than optional, and making the acceptance procedures for a draft EIS more consistent.” Examples of proposed Type II actions that would be added to the SEQR regulations include: installation of broadband within an existing right-of-way; green infrastructure upgrades or retrofits; installing 5 MW or less of solar arrays on landfills, cleaned-up brownfield sites, wastewater...