On January 17, 2017, the New York State Department of Environmental Conservation (DEC) released proposed amendments to SEQRA - the department's first major revisions to such regulations in more than two decades. The proposed amendments follow recent efforts by the DEC...
Brownfields Cleanup
Can an Oral Contract Ever be an Enforceable Promise to Fund an Environmental Remediation?
When someone says the word "contract," what comes to mind? For most, it would probably be a signed piece of paper that sets out certain legally enforceable promises made between two parties. But oral contracts can exist, too, and an oral contract can be just as...
Soil Vapor Intrusion Concern Prompts EPA to Support Revision to Phase I Environmental Site Assessment Protocol
The health threats posed by physical contact with contaminated soil or groundwater are well known. But increasingly, state and federal regulators are recognizing that harmful vapors from such contamination can be drawn into nearby buildings and pose a threat to the...
DEC Did Not Act Outside of Its Authority in Promulgating Regulations that Required Cleanup of Contaminated Properties to “Pre-Disposal Conditions” under the State Inactive Hazardous Waste Disposal Site Act
The Court of Appeals of New York recently held that the New York State Department of Environmental Conservation ("DEC") did not exceed its authority or act contrary to state law in enacting certain regulations with respect to remedial programs implemented to clean...
EPA Issues Interim Guidelines for Urban Agriculture on Brownfield Sites
Urban agriculture is exploding in cities - large and small - throughout the nation. In many cities, local land use laws and zoning ordinances are being amended or drafted to support this new-found passion. But with precious "green" space in cities (and rooftops in...
DEC Reports Increase in Brownfields Applications and Approvals; NYS Bar’s Efforts to Improve the Program Overall
The DEC reported that it received 46 Brownfields Cleanup Program ("BCP") applications during 2010-2011, an increase of 15% from the previous year. DEC approved 38 of those applications, up from 26 from the year before. This is good news both for developers and...
Update on Brownfields Program Eligibility: The First Department Upholds the Supreme Court’s Rejection of DEC’s Use of a “But-For” Test
Late last year, the First Department, in the Matter of East River Realty v. N.Y. State Department of Environmental Conservation, 2009 NY Slip Op 9381, 68 A.D.3d 564 (N.Y. App. Div., 1st Dep't Dec. 17, 2009), upheld a Supreme Court ruling that the New York State...
The First Department Upholds the Supreme Court’s Rejection of DEC’s Use of a “But-For” Test in Determining Eligibility under the Brownfield Program
The First Department, in the Matter of East River Realty v. N.Y. State Department of Environmental Conservation, 2009 NY Slip Op 9381 (N.Y. App. Div., 1st Dep't 2009), recently upheld a Supreme Court ruling that the New York State Department of Environmental...
New York’s Highest Court Overturns a DEC Brownfield Cleanup Program Eligibility Determination – Part II.
Continuing with our prior post, this post discusses the Court of Appeal's ruling in In the Matter of Lighthouse Pointe Property Associates, LLC v. New York State Department of Environmental Conservation, 2010 NY Slip Op 1377, 2010 N.Y. LEXIS 35, (Ct. App. Feb. 18,...
New York’s Highest Court Overturns a DEC Brownfield Cleanup Program Eligibility Determination – Part I.
On February 18, 2010, New York's highest court overturned the DEC's denial of an upstate New York development's application for admission into the State's Brownfield Cleanup Program ("BCP" or "Program"). In the Matter of Lighthouse Pointe Property Associates, LLC v....
