EPA Unveils its PFAS Action Plan - On February 14, Acting USEPA Administrator Andrew Wheeler announced the EPA’s new action plan to respond to Per- and Polyfluoroalkyl Substances (PFAS). The EPA’s new action plan identifies priority actions and contains both short- and long-term solutions to the PFAS problems. The priority actions include:
• Proposing a national drinking water Maximum Contaminant Level for PFOA and PFOS under the Safe Drinking Water Act by the end of 2019;
• Initiating the regulatory development process for listing PFOA and PFOS as CERCLA hazardous substances;
• Developing interim cleanup recommendations to address groundwater contaminated with PFOA and PFOS;
• Finalizing draft toxicity assessments for two PFAS compounds and GenX chemicals in 2019 and developing additional toxicity values for five other PFAS chemicals;
• Reviewing new PFAS and issue supplemental proposed Significant New Use Rules.
The short-term actions are divided into three different categories: understanding and addressing PFAS toxicity and occurrence; identifying and addressing exposure; and risk communication and engagement. Understanding involves creating a clearinghouse of chemical information for PFAS chemicals and developing testing methods while coordinating these efforts in concert with other federal agencies. Identifying and addressing exposure involves generating more publicly available date concerning PFAS contamination and developing an appropriate enforcement strategy. Risk communication and engagement is the coordinated effort with state, tribes, and local communities to develop and communication tools to convey clear and consistent messages regarding PFAS to the public.
The long-term actions involve examining existing and collecting additional data as to the nature of the toxicity of PFAS chemicals and where they originate from, the development of additional datasets and learning tools to inform a more complete understanding of PFAS technology, and the use of data collected to develop additional PFAS regulatory standards as they pertain to industry, drinking water and ambient water standards. More information about the Action Plan can be found here.
George Duke presented the Brownfield and Superfund case law Update at the Brownfield/Superfund Update CLE at the New York State Bar Association in Albany, New York on December 5, 2018 - The New York State Bar Association presented its Brownfield/Superfund Update 2018 at the New York State Bar Association on December 5, 2018. Topics include a review of proposed changes to Part 375 regulations and NYSDEC remedial guidance; best practices for selling/transferring BCP sites and claiming tax credits; case law update; and a review of EPA Superfund task force recommendations and status of guidance/policy revisions. Presenters included legal practitioners, Julie Tighe, the President of the New York League of Conservation Voters, Senior Officials from the USEPA and the New York State Department of Environmental Conservation, and environmental consultants. Information on the course can be found here.
Rosemary Stack, Esq., joins Brown Duke & Fogel, P.C. - Brown Duke & Fogel, P.C. is pleased to announce that mining and environmental attorney Rosemary Stack has joined the firm as Of Counsel. Ms. Stack enhances the firm’s noteworthy mining and environmental law practice and capabilities.
For over thirty years, Ms. Stack’s practice has focused on representing the interests of the construction materials industry. Over that time, Ms. Stack has become one of the most knowledgeable and experienced mining attorneys in New York State. Ms. Stack’s experience with the mining industry entails overseeing the permitting and environmental review process before governmental agencies, including the New York State Department of Environmental Conservation and local municipalities. Ms. Stack handles all permitting and litigation that may result from obtaining mining permits, land use and zoning approvals and other environmental and land use permits, including representing clients at administrative hearings and appearances before local boards and in court proceedings. Ms. Stack advises clients on issues relating to compliance with environmental laws and regulations including the State Environmental Quality Review Act (SEQRA) and the Mined Land Reclamation Law (MLRL). Ms. Stack has successfully permitted asphalt plants, ready mix concrete plants, quarries and sand and gravel operations. In addition, Ms. Stack has also successfully obtained zoning approvals spanning a multitude of land uses – from individual homeowner variances and special use permits for small business to all zoning permits and approvals needed for a multi-use industrial facility.
Ms. Stack graduated summa cum laude from Albany Law School.
Brown Duke & Fogel, P.C. is a law firm with offices in Syracuse, New York City and Monticello dedicated to providing focused and practical legal advice to clients in the areas of environmental law, land use, zoning and development, mining, energy, real property tax certiorari, eminent domain and litigation.
George Duke and Michael Fogel to present seminar on Environmental Liabilities in Real Estate Transactions - On November 30, 2018, Michael Fogel and George Duke will be presenting a legal training seminar through Lorman Education Services on the topic of Environmental Liabilities in Real Estate Transactions. The seminar will provide guidance on how to conduct the appropriate due diligence and structure real estate transactions from both the seller’s and buyer’s perspectives to best manage environmental contamination and liabilities. Practitioners will also learn when and how to conduct environmental due diligence and then how best to structure agreements to allocate liability for environmental contamination, including the use of representations and warranties, indemnification and hold harmless provisions, escrow agreements and releases. Recent case law developments addressing real property environmental liabilities and the shifting of liabilities between purchasers and sellers will also be discussed. Information about the seminar can be found here.
Greg Brown to lead discussion on Polyfluoroalkyl Substances (PFAS) and other emerging contaminants - On Thursday, September 13, 2018, Greg Brown will lead a discussion among some of the industry leaders to discuss issues related to Polyfluoroalkyl Substances (PFAS) and other emerging contaminants that are ubiquitous in industrial and consumer products. A panel of leading experts will discuss emerging contaminants, discussing regulatory developments, state and NGO efforts on the topic, and addressing liabilities associated with these contaminants in the litigation and transactional context. To learn more about and register for this event, click here.
Update! How to lower your property taxes in New York State – Deadlines for challenging your property tax assessment and filing for tax exemption are fast approaching. If your assessed value is higher than the actual value of your property, you should consider challenging your tax assessment. In municipalities where the equalization rate or level of assessment is less than 100%, look at the full market value, which should be on your tax bill, and compare it to your actual value. Also, you may be missing out on tax exemptions. The Real Property Tax Law (RPTL) provides a number of exemptions. To learn more about deadlines and options for reducing your property taxes, click here.
Brown Duke & Fogel, P.C. congratulates the 2018 New York City Big Apple Brownfield Award recipients - Once again, Brown Duke & Fogel, P.C., was a proud sponsor of the New York City Brownfield Partnership Big Apple Brownfield awards event held on May 1, 2018 at New York Law School. The event recognized innovators and leaders in the brownfield industry as well as innovative and successful brownfield redevelopment projects within New York City. This year's honorees included Schenine Mitchell, Brownfields Project Manager at the USEPA Region 2, for her distinguished service in the advancement of brownfield redevelopment initiatives. The event also hosted Jane O'Connell, Chief, Superfund and Brownfield Cleanup, NYSDEC Region 2, who provided a New York State regulatory update, and Daniel Walsh, PhD, the Director of the New York City Office of Environmental Remediation (OER), who provided a New York City OER update.
New Regulations for Dry Cleaners - NYSDEC has adopted major changes to regulations for the dry cleaning industry. The changes repeal and replace 6 NYCRR Part 232 (“Perchloroethylene Dry Cleaning Facilities”) with a revised and retitled Part 232 (“Dry Cleaning Facilities”). The changes may apply to any entity that operates alternate solvent or perc dry cleaning machines. Alternative solvents were previously regulated by 6 NYCRR Part 212.
These new state regulations incorporate federal regulation 40 CFR Part 63 to bring state regulations in line with federal requirements. The modifications include incorporating the federal ban on installation of perc dry cleaning machines in residential buildings after December 21, 2005 and removal of all perc dry cleaning machines from residential buildings by December 21, 2020.
The regulations include, among other things, new restrictions on equipment and contain time limits and variance procedures for phasing out equipment. Third generation machines will be phased-out by December 31, 2021. All alternative solvent transfer machines will be phased-out by December 31, 2031. Manufacturers are required to submit a Certification of Model Compliance within 180 days after the effective date of the regulations. The regulations attempt to clarify permitting and posting notice requirements and add posting requirements for alternative solvents.
Contact Brown Duke & Fogel, P.C. if you have questions about how the new regulations affect you.
Proposed New York State Brownfield Tax Credit Deferral Abandoned - As many in the Brownfield redevelopment industry were aware, the Governor proposed a tax credit deferral in his 2018-2019 budget whereby certain business tax credits, including those under the New York State Brownfield Cleanup Program, would be deferred for three years for those claiming more than a combined $2 million in business tax credits for tax years 2018, 2019, and 2020.
Fortunately for the Brownfield redevelopment community, this month the New York State legislature’s fiscal year 2019 budget (effective April 1, 2018) did not include the Governor’s proposed tax credit deferral. This is great news for Brownfield redevelopment in New York State as it preserves a program that is responsible for the redevelopment and beneficial reuse of contaminated properties throughout New York.
Michael Fogel presents at the 2018 E-Week Seminar Series - On February 23, 2018, Michael Fogel presented on the topic of the “New York State Brownfield Cleanup Program” at the Erie-Niagara Chapter of The New York State Society of Professional Engineers E-Week Seminar Series.
Resorts World Catskills Announces Opening - Brown Duke & Fogel, P.C. congratulates Resorts World Catskills on the official opening of its new casino resort! The Company announced that Resorts World Catskills will officially open on Thursday, February 8th at 8 a.m., when the public will have the first opportunity to experience the new casino resort. Resorts World Catskills, New York State’s largest integrated commercial casino resort will contain 100,000 square feet of Las Vegas style gaming, including more than 150 table games and 2,150 slot machines, 10 varied culinary and nightlife options, a 2,500-seat event center and a 332-room all-suite hotel designed to meet 5-star and 5-diamond standards. Brown Duke & Fogel, P.C. attorneys George Duke, Michael Fogel and Kevin Brown are proud members of its development team, serving as as its land use and environmental counsel.
Gregory M. Brown, Esq., joins Brown Duke & Fogel, P.C. as Shareholder - Gregory M. Brown has joined the firm as a shareholder in its Syracuse office. Mr. Brown enhances the firm’s energy and environmental law capabilities. Mr. Brown’s practice is focused on energy and environmental law, particularly in matters relating to permitting and compliance, air pollution, facility siting, enforcement, waste regulation and cleanup, and the environmental aspects of business transactions, including insurance and environmental due diligence. Mr. Brown has acted as lead transactional counsel and regulatory counsel on transactions for the acquisition of generating assets. Mr. Brown has represented Fortune 500 companies in the energy and financial sectors in environmental compliance matters and is a member of the Energy Bar Association’s Environmental Committee.
Mr. Brown has over twenty years of experience as a partner at Brown & Palumbo, PLLC and prior associations with Gilberti, Stinziano, Heintz & Smith, P.C. and Weil, Gotshal & Manges, LLP.
Mr. Brown graduated cum laude from Cornell Law School and obtained his master’s degree in economics from the State University of New York at Binghamton.
Michael Fogel and George Duke to present SEQRA Seminar - On January 19, 2018, Michael Fogel and George Duke presented a legal and environmental training seminar through Lorman Education Services on the topic of Current Issues in the State Environmental Quality Review Act (“SEQRA”). Topics include: (1) an overview of the SEQRA process; (2) the use of Generic Environmental Impact Statements in project development; (3) recent decisions in SEQRA litigation; and (4) proposed amendments to the SEQRA regulations. Information about the seminar can be found here.
Michael Fogel elected to the New York Construction Materials Association Board of Directors - Brown Sharlow Duke & Fogel, P.C. shareholder Michael Fogel was elected to the New York Construction Materials Association (“NYMaterials”) Board of Directors at its Annual Meeting held November 14-16, 2017 in Saratoga Springs, New York. NYMaterials is a trade association representing the business and regulatory interests of the construction aggregate, hot-mix asphalt and ready-mix concrete industries.
George Duke presents Continuing Education Course on New York State Brownfields to Environmental Insurance Professionals - On November 15, 2017, Brown Sharlow Duke & Fogel, P.C. shareholder George Duke presented a Continuing Education seminar to environmental insurance professionals entitled Understanding the New York State Brownfield Cleanup Program. The seminar reviewed the history of the brownfield program in New York, provided an overview of the program, and highlighted possible tax incentives and liability protections available to those who successfully navigate the program. The program was offered to insurance professionals in conjunction with the Great American Insurance Group's Environmental Division in midtown New York City.
George Duke named to the Board of Directors of the New York City Brownfield Partnership - In October 2017, Brown Sharlow Duke & Fogel, P.C. shareholder George Duke was named to the Board of Directors of the New York City Brownfield Partnership. The New York City Brownfield Partnership is a non-profit organization whose mission is to provide leadership to the brownfield community throughout New York City by 1) Serving as a primary resource for information on brownfields and brownfields redevelopment in New York City, 2) Advancing public awareness and understanding of benefits, opportunities, and best practices of brownfield redevelopment, 3) Promoting excellence in brownfield redevelopment by honoring successful brownfield projects, 4) Supporting the education and training of brownfield professionals, workers, and students, and 5) Fostering collaborative relationships among brownfield developers, property owners, government agencies, and community groups. Information about the New York City Brownfield Partnership can be found here.
How to lower your property taxes in New York State – Deadlines for challenging your property tax assessment and filing for tax exemption are fast approaching. If your assessed value is higher than the actual value of your property, you should consider challenging your tax assessment. In municipalities where the equalization rate or level of assessment is less than 100%, look at the full market value, which should be on your tax bill, and compare it to your actual value. Also, you may be missing out on tax exemptions. The Real Property Tax Law (RPTL) provides a number of exemptions. To learn more about deadlines and options for reducing your property taxes, click here.
Patrick D. Donnelly, Esq., joins Brown Sharlow Duke & Fogel, P.C. as Of Counsel - Brown Sharlow Duke & Fogel is pleased to announce that Patrick D. Donnelly, Esq. has joined the Firm as Of Counsel. Mr. Donnelly has extensive experience in practice areas such as complex civil litigation, appellate practice, property tax certiorari, environmental law, zoning and land use law, municipal law, construction law, landlord-tenant, leasing and real estate law. Mr. Donnelly was an editor on the Pace Environmental Law Review and has won awards for his legal writing. Mr. Donnelly’s experience and legal skills enhance the Firm’s capabilities responsiveness. He may be reached at our Syracuse office at 315-399-4343.
Brownfields in New York - On September 29, 2017, George Duke and Michael Fogel presented a legal and environmental training seminar for Continuing Legal Education credits on Brownfields in New York. The New York State Brownfield Cleanup Program (BCP) fosters the remediation of contaminated properties and promotes much-needed redevelopment of blighted communities. The BCP has evolved into a useful tool to assist developers in creating productive urban and suburban spaces that create both environmental and financial benefits for developers and communities alike. A recording of the webinar is available here.
Michael Fogel appointed as Co-Chair of Onondaga County Bar Association Environmental and Land Use Section - Michael Fogel was recently appointed to serve as Co-Chair of the Onondaga County Bar Association Environmental and Land Use Section. The Section will meet regularly to discuss existing and emerging issues in environmental, land use and zoning law and will also present relevant continuing legal education programs.
The 'twist', BCP Generations and Certificate of Completion (CoC) Issuance Dates - The New York State Department of Environmental Conservation (NYSDEC) recently issued a Program Update clarifying the key dates that apply to milestones within each of the three generations of the Brownfield Cleanup Program (BCP). The update also identified a 'twist' for sites in the second generation (Generation 2) of the BCP. Generation 2 sites have a mandatory completion date of December 31, 2019. However, it was brought to the attention of NYSDEC that there is a subset of Generation 2 sites that are not subject to the 2019 completion date. Specifically, Generation 2 sites that have a BCA that was signed by the Department on or after July 1, 2015, are not subject to the 2019 mandatory completion date. These sites, as well as all Generation 3 sites, are subject to a program-wide March 31, 2026 completion date. The NYSDEC Program Update summarizing this 'twist' as well as the affected Generation 2 sites can be found here.
Amendment to Standards and Practices for All Appropriate Inquiries Under CERCLA - The USEPA recently announced that it is taking direct and final action to amend the Standards and Practices for All Appropriate Inquiries ("AAI") to update an existing reference to a standard practice recently revised by ASTM International pertaining to forestland or rural property. The change allows the rural standard to be used to comply with AAI. The Federal Register Notice can be seen here.
Ethics in Environmental Law - On June 30, 2017, George Duke and Michael Fogel presented a legal and environmental training seminar for Continuing Legal Education credits on attorney ethics in environmental law. Presented to a multi-jurisdictional nationwide audience, topics included communications with governmental agencies and the "No Contact" rule, environmental audits, environmental disclosures under the Sarbanes-Oxley Act, the Attorney-Client Privilege, the Work Product Doctrine, the Self-Critical Analysis Privilege, and confidentiality issues relating to consultants and environmental experts. The presentation can be found here.
NYSDEC Program Policy - DER-32: Brownfield Cleanup Program Applications and Agreements (PDF) has been revised and the comment period for the proposed document ended on Friday, May 19, 2017. See DEC's Brownfield Cleanup Program (BCP) for the latest BCP Application form (with instructions) and the standard Brownfield Cleanup Agreement. Links to these documents are also available in proposed DER-32. The original version of this policy, which was issued on June 22, 2010, has been revised to address changes associated with the newest version of New York State's Brownfield law, which became effective July 2015. The revised DER-32 was issued on July 28, 2017 and becomes effective September 8, 2017. See the final policy here.
Brown Sharlow Duke & Fogel, P.C. congratulates this year's New York City Big Apple Brownfield awards recipients - Brown Sharlow Duke & Fogel, P.C., was a proud sponsor of this year's New York City Brownfield Partnership Big Apple Brownfield awards event held at New York Law School to recognize innovators and leaders in the brownfield industry as well as innovative and successful brownfield redevelopment projects within New York City. This year's honorees included New York City Office of Environmental Remediation (OER) General Counsel Mark McIntyre for his years serving as the founding general counsel to OER. In his award acceptance he provided an interesting history of OER and the lengths he and his staff, under the leadership of OER Director Dan Walsh, went to to establish NYC's Voluntary Cleanup Program and several other significant initiatives.
Lawsuit challenging approvals for development in the Village of Cazenovia dismissed - Brown Sharlow Duke & Fogel, P.C., successfully represented a developer against an Article 78 proceeding and Declaratory Judgment action brought by project opponents seeking to overturn site plan, special use permit and subdivision approvals for a mixed-use development in the Village of Cazenovia. After a hearing, Supreme Court, Madison County, dismissed the project opponents’ claims. BSDF partner Michael Fogel was lead counsel.
George Duke presents New York State Brownfield Update - George Duke spoke at the March 8, 2017 meeting of the American Council of Engineering Companies of New York. In addition to providing some practice pointers, Mr. Duke presented an overview of the New York State Brownfield Cleanup Program as well as recent regulatory updates and their implications on future projects in New York.
Michael Fogel elected to the NSSGA Young Leaders’ Steering Committee - Michael Fogel was elected to the National Stone Sand & Gravel Association (NSSGA) Young Leaders’ Steering Committee. The NSSGA Young Leaders provides a forum for young industry members, up to 40 years of age, to network, exchange ideas, discuss subjects of mutual interest and seek ways to promote the benefits of long-term growth of the industry through education, research and legislative activities.
Wetlands Permits Secured for Solar Array - Brown Sharlow Duke & Fogel, P.C., successfully represented one of New York State's largest solar energy developers in securing wetlands permits from the Army Corps of Engineers and the New York State Department of Environmental Conservation necessary for the development of a ground mounted 2MW solar array. The solar array consists of approximately 6,138 photovoltaic panels across 6.5 acres.
George Duke speaks at Symposium on Land Cleanup and Revitalization - George Duke recently spoke at the Symposium on Land Cleanup and Revitalization in New York City hosted and organized by the New York City Office of Environmental Remediation (OER). The Symposium highlighted financial and administrative tools and resources currently available to developers of affordable housing projects on contaminated or environmentally impaired sites within NYC. Mr. Duke spoke about his involvement with OER's Jumpstart Grant program that offers up to $250,000 in grant funding to assist developers in getting contaminated sites into and through the New York State Brownfield Cleanup Program. Panelists at the Symposium also provided insight into OER's Community Grants for community development project planning and design, USEPA Grants for affordable housing developments on contaminated sites, and OER Brownfield Incentive Grants for site cleanups under NYC's Voluntary Cleanup Program.
Development Approvals Obtained from Town of Dewitt - Brown Sharlow Duke & Fogel, P.C., was successful in representing its client before the Town of Dewitt Planning Board and Zoning Board of Appeals in connection with applications for site plan approval and variances necessary for development of a restaurant, retail and manufacturing establishment located in the Town of Dewitt, New York.
Michael Fogel honored as a Central New York 40 under FORTY Award Winner - Michael Fogel was selected by the Central New York Business Journal as a 40 under FORTY Award Winner. The annual 40 under FORTY Awards honors young leaders under the age of 40 who excel in the workplace, volunteer, and give back to the CNY community.
IDA Transaction Closed - In December 2016, Brown Sharlow Duke & Fogel, P.C. successfully represented its client in a transaction with the Sullivan County Industrial Development Agency. The representation included securing sales and use tax and mortgage recording tax exemptions as well as negotiating a Payment-In-Lieu-of-Tax (PILOT) agreement for the proposed Rees Jones redesigned “Monster” Golf Course which will be part of the Montreign Casino Resort complex at Adelaar in the Catskills.
Lawsuit Challenging County E911 System Dismissed - Brown Sharlow Duke & Fogel, P.C., successfully defended Niagara County against a lawsuit by neighboring residents seeking money damages and to halt on-going construction of a telecommunications tower that was part of cellular tower network necessary to facilitate county-wide emergency communications for first responders. After an evidentiary hearing, the Supreme Court, Niagara County, denied Plaintiffs’ motion for preliminary injunction and dismissed Plaintiffs’ claims. BSDF partner Michael Fogel was lead counsel.
George Duke named as Advisory Board Member - George Duke was named as an Advisory Board Member of the New York City Brownfield Partnership. The New York City Brownfield Partnership is a non-profit organization whose mission is to provide leadership to the brownfield community throughout New York City by 1) Serving as a primary resource for information on brownfields and brownfields redevelopment in New York City, 2) Advancing public awareness and understanding of benefits, opportunities, and best practices of brownfield redevelopment, 3) Promoting excellence in brownfield redevelopment by honoring successful brownfield projects, 4) Supporting the education and training of brownfield professionals, workers, and students, and 5) Fostering collaborative relationships among brownfield developers, property owners, government agencies, and community groups. Information about the New York City Brownfield Partnership can be found here.
Michael Fogel named a Rising Star by Super Lawyers - Michael Fogel was selected as a Rising Star by Super Lawyers in the field of Environmental Law for the third consecutive year. Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations and peer evaluations.
Gaming Facility License Awarded - The New York State Gaming Commission recently awarded a Gaming Facility License to Montreign Operating Company, LLC, a separate wholly owned subsidiary of Empire Resorts, Inc., conditioned upon, among other things, the completion of the development programs comprising and supporting the Gaming Facility. Brown Sharlow Duke & Fogel, P.C. is proud to be serving as land use and environmental counsel to Empire and its subsidiaries prior to and throughout the application process for a Gaming Facility License as well as throughout the construction of the Gaming Facility. The proposed Gaming Facility at Adelaar and its supporting components are anticipated to include, among other things, the Montreign Resort Casino, a Rees Jones redesigned “Monster” Golf Course and an Entertainment Village Hotel, which will include retail, restaurant, shopping and entertainment. Brown Sharlow Duke & Fogel, P.C. continues to serve as counsel to Empire to obtain necessary approvals for the construction of additional components of the Gaming Facility at Adelaar.
George Duke named co-Chair of Pro Bono Committee - George Duke was named as the Co-Chair of the Pro Bono Committee of the New York City Brownfield Partnership. The New York City Brownfield Partnership offers pro-bono counseling on a limited basis to community residents and groups that require assistance in reviewing and understanding cleanup plans and related brownfield development issues. For more information on the Pro-bono Counseling Program, please e-mail your request for services to firstname.lastname@example.org.
Michael Fogel presents “Environmental 101” Seminar - Michael Fogel presented an Environmental 101 seminar at the New York State Construction Materials Association (“NYMaterials”) Spring Meeting. Mr. Fogel’s presentation focused on the environmental laws and regulations applicable to the construction aggregates industry.