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.
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...
The Executive Committee of the New York State Bar Association (NYSBA) has unanimously endorsed proposed legislation to amend and extend the New York State Brownfield Cleanup Act.
David J. Freeman, a Director in the Environmental Group of Gibbons P.C., has been honored by the New York City Brownfield Partnership (NYCBP) as the 2021 recipient of the organization’s Distinguished Service Award. The Award promotes excellence in brownfield redevelopment each year by honoring an individual who has made a significant impact on brownfield redevelopment in New York City.
The New York City development community was alarmed by a trial court decision in February of last year that would have required removal of the top floors of a 55-story condominium building under construction at 200 Amsterdam Avenue on the Upper West Side of Manhattan. On appeal, the Appellate Division, First Department, issued a decision in early March reversing the trial court, which means that, absent any further appeal, the building can be completed and the condominium units offered for sale. The case, In the Matter of Committee for Environmentally Sound Development v. Amsterdam Avenue Redevelopment Associates LLC, 2021 NY Slip Op. 01228 (“Amsterdam Avenue”), serves as a high-profile, high-stakes reminder of the importance of two well-settled principles of New York zoning law: Administrative agencies like planning and zoning boards, which are charged with administering technical regulations with which they have substantial experience and technical expertise, are entitled to substantial deference and cannot disregard past precedent without good reason, such as differences in facts or changed circumstances; A party seeking to overturn a permit or approval must avail itself of all opportunities to seek a stay that halts construction or risk having its case dismissed as moot, and a developer seeking to defeat an appeal can do so by taking the risk of diligently proceeding...
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...
A U.S. Department of Justice legal memo, obtained under the Freedom of Information Act by Bloomberg Law, has clarified and restated the Department’s strict policy against using the federal Judgment Fund to settle Superfund cases in which the federal government is a Potentially Responsible Party (PRP). The memo states that the federal government can settle its liability by payments from the Fund only if the settlement is “final” – that is, there are no contingencies or future payments due. Many Superfund settlements do not meet that standard, since they typically include reopeners, “pay-as-you-go” arrangements, or provisions for additional funding if the remedy proves more expensive than originally estimated. As Gibbons Director David J. Freeman told Bloomberg Law, “It’s not a favorable development for the program, or for making progress on settlements in general, for the government to be taking such a hard line on this.” This policy will likely result in making it more difficult to achieve settlements at sites where the federal government is a PRP.
As discussed previously, New York recently passed a COVID-19 sick leave law that provides job protection and paid leave for employees who are subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19 (“COVID-19 quarantine leave” or “quarantine leave”). New York State has since published guidance (“Guidance”) and FAQs relating to the COVID-19 sick leave law (“FAQs”), which discuss, among other things, how employees may be compensated under the new law, through a combination of benefits that include COVID-19 sick leave, New York’s Paid Family Leave (PFL), and short-term disability (DBL) benefits while in quarantine. Under the COVID-19 sick leave law, as clarified by the Guidance and FAQs: An employee who works for a small employer – one with ten or fewer employees as of January 1, 2020 (with a net income of less than $1 million in the prior tax year) – and is subject to a mandatory or precautionary order of quarantine or isolation issued by the state of New York, department of health, local board of health, or any other government entity authorized to issue such an order due to COVID-19 (“quarantine order”) is entitled to unpaid sick leave until the termination of the quarantine order. The employee may also be eligible to receive compensation for the duration...
With some banks and municipal offices closed to walk-ins, non-essential employees working from home, and social distancing requirements in place, the ordinarily mundane task of having documents notarized has become much more challenging. The very act of taking an acknowledgment requires that the notary personally interact with the signatory, verify identity, and witness document execution. This, of course, is wholly inconsistent with the COVID-19 world in which we find ourselves. Although electronic (rather than pen and ink) notarization has become more common in many jurisdictions, few states permit online or webcam notarization where the person signing a document is not in the physical presence of the notary. As a result of COVID-19, the rules have been relaxed in New Jersey and New York in order to permit video notarization in some instances. New Jersey New Jersey is utilizing a legislative process to amend the Notaries Public Act of 1979 (the “Act”). A bill designated as A-3903 was signed into law on April 14, 2020, as P.L. 2020, ch. 26. It takes effect immediately and will remain in effect for the duration of the COVID-19 emergency as declared by the Governor in Executive Order 103. It provides that a notary appointed pursuant to the provisions of the Act or an officer authorized to take oaths, affirmations,...
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...