Posted By Matthew Jokajtys on May 16, 2013
Municipalities in New York have received the green light to regulate fracking – even to the point of banning it – through local zoning ordinances. It’s a second consecutive victory for municipalities in the New York courts, and an affirmation of New York’s long history of vesting decision making powers in local governments through Home Rule.
On May 2nd, 2013, the Appellate Division for the New York State Supreme Court Third Judicial Department handed down its ruling in the closely watched case of Norse Energy Corporation v. Town of Dryden et al. As we had previously reported here at the Periconi, LLC Environmental Law Blog, Anshultz Exploration Corp., the predecessor-in-interest to Norse Energy, had appealed a 2012 ruling of the New York State Supreme Court upholding a Dryden, New York zoning ordinance which limited the areas in the town where fracking was permitted (as well as a similar zoning ordinance in Middlefield, New York, which was consolidated with the Dryden case). (more…)
Posted By Matthew Jokajtys on April 30, 2013
EPA has just extended to tenants the Bona Fide Prospective Purchaser (“BFPP”) protection, by which Congress previously exempted certain prospective owners from harsh Superfund liability. Even where the landlord loses its BFPP protection, the new EPA enforcement guidance memo allows tenants to hold onto it, assuming the tenant can meet certain requirements.
Traditionally, a tenant derived its BFPP status from the landowner who complied with each of the eight criteria set out in Section 101(40)(A)-(H) of the Superfund law. Principal among these requirements is conducting “All Appropriate Inquiries” before purchasing the property, usually through commissioning a Phase I Environmental Site Assessment. There are also continuing obligations after purchase, such as not spreading the contamination around by development activities, and providing EPA with access to the property. Simple enough, except for the cases where landowners failed or refused to comply with their ongoing obligations and lost their BFPP status.
So what happens to a tenant when a landowner loses its BFPP status? (more…)
Posted By Matthew Jokajtys on April 8, 2013
Beginning in the winter of 2006-2007, bees began to die in – or simply disappear from – commercial hives around the US. Increasing numbers of beekeepers since then reported similar disappearances of bees, and the phenomenon became known as Colony Collapse Disorder, or CCD. While the exact causes of CCD are unknown, beekeepers and environmental groups have argued that the losses are due to a class of pesticides called neonicotinoids, a type of pesticide that is taken up by plants and stored in tissues as the plant grows and develops. Here’s why even the pesticide manufacturers are now taking the problem seriously. (more…)
Posted By Matthew Jokajtys on March 25, 2013
On March 7, 2013, the New York State Assembly passed legislation to extend the moratorium in place on high pressure horizontal hydraulic fracturing – hydrofracking or fracking – of shale that has been in place since 2008. Though the bill, Assembly Bill 5424-A, passed the Assembly by a wide margin of 95 to 40, the legislation must still be approved by the State Senate and signed by Governor Cuomo before taking effect. It is unclear if the Senate, which is controlled through a power sharing agreement among Republicans, Democrats and the Independent Democratic Caucus, will act on the bill. (more…)
Posted By Matthew Jokajtys on March 7, 2013
Does the destruction of plaintiff’s technical data supporting disclosed oil spill investigation reports get a defendant off the hook? Apparently not, decided the Appellate Division (Third Dept.) in a November 2012 decision, rejecting a defense motion to reverse a plaintiff’s trial verdict. Defendants had received the reports themselves, without the backup technical data, but had not requested any of the data for nearly a year after the commencement of litigation, well after a document retention policy caused destruction of the backup data. (more…)
Posted By Matthew Jokajtys on February 5, 2013
There are perhaps few other sights so closely associated with the summer scene at Coney Island than the wooden boardwalk. Predating even the venerable Coney Island Cyclone roller coaster, the boardwalk has been the main thoroughfare along which have strolled generations of New Yorkers and tourists alike, out for a game of ski-ball, some ice cream, or simply to enjoy the ocean views.
But despite the nostalgic and historical character of the boardwalk, changing times are buffeting Coney Island and turning the wooden boardwalk into a relic. In recognition of the need for an upgrade, the New York City Department of Parks and Recreation proposed in 2010 a new design for the boardwalk that replaces the traditional tropical hardwood lumber with a green replacement: recycled plastic lumber and concrete, and that action has survived a challenge by those for whom the nostalgia of the wooden boardwalk is paramount. (more…)
Posted By Matthew Jokajtys on January 31, 2013
On November 29, 2012, the New York State Department of Environmental Conservation missed its deadline under state law to finalize regulations for hydrofracking in New York. However, shortly before the deadline, it filed a Notice of Continuation with the Department of State to secure a 90 day extension for the rulemaking process.
During this 90 day extension, the Commissioner of Health, along with several outside experts hired by the state, have been reviewing DEC’s analysis of the potential public health impacts of fracking. The review is meant in part to help inform DEC whether or not it has met its obligation under the State Environmental Quality Review Act to consider the human health impacts of its proposed rulemaking. (more…)
Posted By Matthew Jokajtys on January 21, 2013
How do you clean up something as big and messy as the Gowanus Canal? On January 23-24, 2013, the United States Environmental Protection Agency will explain and defend its December 27, 2012, “Proposed Plan” for remediating the Gowanus Canal Superfund Site in Brooklyn, NY. The Proposed Plan formally identifies EPA’s “preferred remedy” for the pollution in the Gowanus Canal—a technical term which actually describes a range of actions plans to take to clean up the canal—and explains its choices. The Plan resulted from the investigation it has conducted to date, including the Remedial Investigation and Feasibility Study is released in 2011. (more…)
Posted By Matthew Jokajtys on January 2, 2013
During the summer of 2012, the DEC proposed its first substantive amendments to the State Environmental Quality Review Act (SEQRA) regulations since 1996. The DEC has explained that the amendments are meant to streamline the review process “without sacrificing meaningful review,” but the potential impact of the proposed amendments appears to be somewhat mixed. The proposed amendments center most notably on the “scoping” process, the classification of certain types of projects, and the timeline of the SEQRA process. (more…)
Posted By Matthew Jokajtys on December 12, 2012
A federal court in New York recently decided that the migration of subterranean contamination onto a neighboring property was not, by itself, a sufficient basis to hold a neighboring landowner jointly liable for remediation costs under the federal Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). (more…)