Court of Appeals Rejects NYSDEC Interpretation Of Brownfield Statute

In my March 2009 Environmental Update, I examined the Appellate Division, Fourth Department’s decision in a case involving the New York State Department of Environmental Conservation’s (DEC) denial of a developer’s applications to enter into New York’s brownfield cleanup and financing scheme, known as the Brownfield Cleanup Program (BCP).  On February18, 2010, the Court of Appeals in the Matter of Lighthouse Pointe Property Associates LLC, v. NYS Department of Environmental Conservation, et al., ___N.Y.3d___, 2010 WL 546058, 2010 N.Y. Slip Op. 01377, issued a lengthy and well-reasoned decision, fully resolving the question of what is or is not a “brownfield site” under the BCP.

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Appellate Division Rules on Challenge to Construction of Sand Dunes on a Public Beach

In Agoglia v. Benepe, et al., 2010 WL 4244132, the Appellate Division, Second Department, recently ruled on a challenge to actions of the New York City Department of Parks and Recreation (NYC Parks) and the New York State Department of Environmental Conservation (DEC) relative to the construction in March 1997 of sand dunes at Rockaway Beach, a public beach in Queens.   The petitioner lives adjacent to the beach and, in 2006, had asked NYC Parks to remove the dunes because he objected to the way they were constructed and alleged that they had grown in size, had become a safety hazard and were blocking access to the beach.  NYC Parks responded by sending two letters to petitioner in 2006, stating that DEC had inspected the beach and was in the process of preparing a report.  NYC Parks also stated that no action could be taken on the dunes until a meeting with DEC was held to resolve issues between the agencies and until it reviewed and understood DEC’s report and recommendations. Petitioner then commenced an Article 78 seeking to review NYC Park’s determination not to remove the dunes and to compel NYC parks and DEC to do so.  Petitioner also alleged that the dunes adversely affected property values on nearby streets and asserted a cause of action seeking to abate and recover damages for a public nuisance created by the dunes.  The Supreme Court dismissed, ruling that petitions lacked standing.  Petitioner appealed.

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Appellate Court Upholds DEC Hazardous Waste Regulations

Late last month, in New York State Superfund Coalition, Inc. v. New York State Department of Environmental Conservation, 68 A.D.3d 1588 (3rd Dept., 2009), the Appellate Division, Third Department dismissed a challenge to certain provisions of the New York State Department of Environmental Conservation (DEC) regulations governing the remediation of inactive hazardous waste disposal sites (commonly known as State Superfund sites).

In 2008, the New York State Superfund Coalition, a not-for-profit corporation, commenced an Article 78 proceeding against the DEC, seeking to annul certain parts of the State’s regulations governing the New York’s State Superfund program. These regulations, originally promulgated in the 1980s, were amended in 2006 as part of an omnibus revision of the regulations to reflect significant recent statutory changes to the State’s hazardous waste and brownfield laws.

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