OER Adopts Rule Easing Path For Removing E-Designations From Properties

February 18th, 2018

The New York City Office of Environmental Remediation (OER) recently adopted revisions to its regulations governing the E-Designation program that will make it easier for property owners to remove the hazardous materials E-Designation (Haz Mat E). We previously discussed the E-designation program in a Post covering the tools available for developing contaminated sites.

Pursuant to Section 11-15 of the New York City Zoning Resolution (“ZR”), E- Designations are  assigned to tax lots during proposed zoning actions to satisfy the City Environmental Quality Review (CEQR). A copy of ZR 11-15 is available Here.

E-Designations may be assigned for noise, air quality or hazardous materials. The E-Designation provides notice to developers that certain environmental requirements must be satisfied before the property can be redeveloped. OER has promulgated regulations that establish the procedures for complying with and removing E-Designations. The types of actions triggering E-Designation are discussed in a DOB Memo

The Department of Buildings (DOB) will not approve permit applications or issue a building permit for certain types of work for tax lots subject to an E-Designation until OER issues either a Notice of No Objection or a Notice to Proceed (NTP). OER will issue an NTP after it approves remedial action plan for the tax lot(s) subject to the Haz Mat E. When the cleanup is completed, OER will issue a Notice of Satisfaction (NOS). DOB will not issue a Certificate of Occupancy for sites subject to a Haz Mat E until OER issues the NOS.

ZR 11-15 provides that where the OER NOS indicates that a tax lot that has an (E) designation requires ongoing site management, OER may require that a declaration of covenants and restrictions governing the ongoing site management requirements be recorded against the tax lot(s). The E-Designation will remain on the tax lot so that future work may be subject to the E-Designation

There may be situations where a property owner or developer can permanently remove a Haz Mat E as opposed to simply complying or satisfying the Haz Mat E requirements. A Haz Mat E can be removed from the tax lot(s) by the Department of City Planning when OER has issued what is known a final NOS. In the past, OER  would issue a final NOS when the remediation achieved a Track 1 cleanup. The recent amendments to 15 RCNY §24-08 now authorize OER to issue a final NOS when the remediation allows the tax lot to be put to any use allowed on the site that does not require engineering and institutional controls. OER will send the final NOS to DOB and DCP within ten (10) days.

The amendment also applies to noise and air quality “E” designations. The rule clarifies that where a development project with an E-Designation for noise and/or air quality has been built out to its full development potential according to zoning, and installation reports demonstrate that the noise or air quality requirements have been fully completed, the E- Designations for air quality and noise can be removed from a tax lot consistent with Section 11-15 (d)(1) of the Zoning Resolution of the City of New York.

Trump Administration Infrastructure Plan Proposes CERCLA Amendments

February 17th, 2018

Earlier this week the Trump Administration unveiled its “Legislative Outline for Rebuilding Infrastructure in America”.  Among the proposals were three amendments to the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) that are designed to incentivize redevelopment of contaminated properties. The proposal can be viewed Here.  Since this document is an overview, it does not contain statutory language.

The first proposed change involves National Priorities List (NPL) sites. Currently, these sites are not eligible for Brownfield funding under CERCLA § 104(k) since they are excluded from definition of brownfield site of §101(39) (B) and eligible response site of section §101(41) (C).  The proposal would allow non-liable parties to be eligible to receive grants and low-interest revolving loans to conduct assessments, complete cleanups, and implement remedy enhancements to accommodate development and perform long-term stewardship at NPL sites or portions of NPL sites. This proposal would include:

  • areas of the NPL site that are not related to the response action;
  • areas that can be parceled out from the NPL response action;
  • areas where the NPL response action is complete but the site has not been delisted yet; or
  • areas where the NPL response action is complete but the facility is still subject to orders or consent decrees under CERCLA

Oddly, the Administration proposes to accomplish this goal by amending CERCLA §101(40) which defines a bona fide prospective purchaser instead of the brownfield site definition at § 101(39) where the NPL exclusion is located. This calls into question of other parties that qualify for other landowner liability protections such as the innocent landowner and contiguous property owner as well as the third-party defense would qualify for this financial assistance.

Another important amendment would be to clarify and expand the current liability exemption State and local governments set forth in CERCLA §101(20) (D). This section excludes from the definition of owner or operator units of state government or local governments that  involuntarily acquire contaminated property by virtue of their sovereign function. Local governments have been concerned about eminent domain actions where they obtain title through a negotiated purchase in lieu of condemnation (see City of Wichita v. Aero Holdings, Inc, 177 F. Supp. 2d 1153 (D.Kan. 2000)0 or in the absence of a judicial ruling that the local government lawfully exercised its power of eminent domain.  The Administration proposal does not explain how it will amend §101(20)(D) to eliminate this concern. However, it does state that such liability protection would be conditioned upon State and local governments not contributing to the contamination and meeting the obligations imposed on Bona Fide Prospective Purchasers (BFPPs), including exercising appropriate care with respect to releases of hazardous substances at the facility

It should be noted that towards the end of 2017,  the House of Representatives passed the Brownfields Enhancement, Economic Redevelopment, and Reauthorization Act of 2017 (H.R. 3017) which appears to encompass some of the changes proposed by the Administration. The bill reauthorizes the federal brownfield program and amends the definition of brownfield site to include sites where there is no viable party and EPA determines it is appropriate that the site be assessed, investigated, or cleaned up by a non-liable party. It also amends §101(20)(D) by deleting reference to “involuntarily” acquiring title. The legislature would allow local governments to be eligible for brownfield funding where if they do not qualify as a the BFPP because they acquired the site prior to January 11, 2002 and did not otherwise contribute or cause the contamination. A Senate bill has similar language regarding the local government exemption

Finally, the Administration proposes to amend CERCLA Section §122(a) to provide EPA with express settlement authority to enter into administrative agreements with BFPPs and other statutorily protected parties to perform remedial action in appropriate circumstances (e.g., partial, early remedial action) would promote and expedite the cleanup and reuse of Superfund sites. Currently, this section provides the President with authority to enter into an agreement with any person to perform a response action when the President determines the action will be done properly.  However,  when EPA enters into a settlement for a remedial action with a potentially responsible party, the settlement must be approved by the Attorney General and entered the United States District Court as a consent decree.  The need to obtain DOJ approval can be time-consuming and often discourages EPA regional offices from considering Prospective Purchaser Agreements or other administrative settlements with BFPPs.

Court Rules that “Hoosick Falls” SOL exception applies to Hoosick Falls Litigation- Duh!

February 15th, 2018

Sweener v. St.-Gobain Performance Plastics Corp. 2018 U.S. Dist. LEXIS 19893 (N.D.N.Y. Feb. 7, 2018),  is the first reported decision interpreting CPLR  § 214-f-the 2016 amendment to the New York statute of limitations applicable to personal injuries or property damage resulting from latent effects of exposure to toxic substances.

This lawsuit is one of several lawsuits before the court arising from the contamination of groundwater with perfluorooctanoic acid (“PFOA”) in the Village of Hoosick Falls, New York.. The plaintiff alleged that contamination of the municipal water supply caused her to suffer personal injuries, including uterine cancer. The defendant moved to dismiss the Amended Complaint as time-barred under the state statute of limitations of § 214-c and the recently enacted § 214-f.

CPLR § 214-c  provides a three-year period in which to commence actions seeking damages for “personal injury or injury to property caused by the latent effects of exposure to any substance or combination of substances,”. The “clock” for initiating a cause of action for such damages begins to run from the date that the ‘injury’ was discovered or could have been discovered with reasonable diligence.

The statute also provides a limited exception where the cause of injury is not immediately known. CPLR § 214-c(4) provides that if a plaintiff discovers the cause of injury within five years of discovering its injury, The plaintiff may commence an action within one year of discovering the previously unknown cause, assuming the additional conditions are satisfied.

In her amended complaint, Plaintiff alleged her injury occurred in May 2016 when she learned that she had high levels of PFOA in her blood. However, the court ruled that under New York law, the “discovery of injury” occurs “when the injured party discovers the primary condition on which the claim is based. The court went on to say that the fact that there may be a delay before the connection between the symptoms and the time the plaintiff learned she was exposed to PFOA  did not delay the start of the limitations period.

Because plaintiff’s cancer was the “primary condition” for which plaintiff sought damages and she was diagnosed in August 2010, the court held her claims expired in August 2016 at the latest even- nine months before she commenced her action. Thus, the court explained, her claims were untimely even  under the unknown cause exception of CPLR § 214-c.

The court then turned to the applicability of § 214-f. Because this provision was added to CPLR § 214 in 2016 specifically in response to the PFOA contamination Hoosick Falls, it is commonly called the “Hoosick Falls” exception. This amendment provides that “an action to recover personal damages for injury caused by contact with or exposure to any substance or combination of substances contained within an area designated as a superfund site” under New York or federal law “may be commenced by the plaintiff within the period allowed pursuant  to [§ 214-c] or within three years of such designation of such an area as a superfund site, whichever is latest.”

The court ruled that the Hoosick Falls exception applies to this lawsuit involving the PFOA contamination at Hoosick Falls. I guess one cannot blame defense counsel for trying…………

NY Governor Proposes Another BCP Tax Credit Deferral

January 18th, 2018

In his recent budget proposal, Governor Cuomo proposed a three-year BCP tax credit deferral. The proposed deferral which is located in Part S of Revenue Article VIII is similar to that enacted in 2010 during the depth of the Great Recession.  Taxpayers claiming BCP tax credits in 2018-2020 would be limited to $2MM each year. Taxpayers will be able to begin claiming the deferred nonrefundable credits in full starting in 2021. 50 percent of the refundable credits would be able to be claimed in 2021, 75 percent of the remainder in 2022, and the remainder in 2023.

The 2010 deferral had been the subject of a takings claim in Empire Gen Holdings, Inc. v. Governor of New York, 967 N.Y.S.2d 919 (Sup. Ct-Albany Cty. June 25, 2013).  Plaintiff had  constructed a 65 megawatt natural gas fired electric generating plant that received a Certificate of Completion (COC) in 2008. The plaintiff claimed and received the site prep tax credit. After the property was placed into service in September 2010, plaintiff claimed tangible property tax credit of $86,951,916  for 2010. However, because the Tax Credit Deferral Provisions became effective on August 11, 2010 and plaintiff did not place its property into service until September 2010, plaintiffs’ 2010 BCP tax credit was reduced to $1,663,633 with the balance of the full redevelopment tax credit deferred until 2013 and thereafter.

Plaintiff alleged the Tax Credit Deferral Provisions amount to an unconstitutional taking and was a violation of the Due Process, Equal Protection and Contract Clauses of the State Constitution.  The Supreme Court of Albany County granted the State’s motion to dismiss on grounds that the plaintiff had no cognizable injury. The court ruled the plainiff”s rights to claim the BRTC did not vest until the property was put into service. On the Contracts Clause cause of action, the court said that the New York Constitution provides that tax exemptions are freely repealable and found no legislative intent in the brownfield statute  (ECL, art 27, tit 14) and the related Tax Law sections that the State was bound to paying the full BRTC  without deferral.

Earlier, the plaintiff sought a permanent injunction in federal court seeking to bar New York from enforcing the deferral  provision and a ruling that they were unconstitutional. However, the United States District Court for the Northern District of New York ruled the challenge was was barred by the Tax Injunction Act and the principle of comity because the plaintiff sought a federal-court ruling on a local tax matter because the relief plaintiffs sought (i.i.e., money damages and a judgment declaring the statutes unconstitutional and enjoining their enforcement) would have interfered with New York’s assessment and collection of tax revenue, and thus with New York State’s administration of its fiscal operations.  Empire Gen Holdings, Inc. v. Governor of New York, 2012 U.S. Dist. LEXIS 96023 (N.D.N.Y. July 11, 2012)

If the Governor’s proposal is enacted into law as currently drafted, BCP projects that received Certificates of Completion but have not placed the property into service (e.g., received a certificate of occupancy)will be subject to the deferral. Sites that are under a deadline to obtain a COC by December 31, 2019 would probably want to delay putting their project into service until after the deferral period expires.

 

NYSDEC Clarifies COC Deadline for 38 BCP Sites

August 8th, 2017

As regular readers of this blog are aware, the the 2015 amendments to the New York State Brownfield Cleanup Program (BCP) created three deadlines for applicants to obtain Certificates of Completions (COCs) depending when the site was accepted into the BCP.

  • Generation 1 (Gen1): sites accepted on or before June 22, 2008 have to obtain COC by December 31, 2017;
  • Generation 2 (Gen2): Sites accepted into the BCP between June 23, 2008 and June 30, 2015 have to obtain a COC by December 31, 2019; and,
  • Generation 3 (Gen3): Sites accepted between July 1, 2015 through December 31, 2022 have to obtain COCs by Mach 31, 2026..

The acceptance dates has generally been thought to refer to the date of the acceptance letter issued by the New York State Department of Environmental Conservation (NYSDEC). However, the statutory language provides that sites have a brownfield cleanup agreement executed after July 1, 2015 will have until the March 31, 2026 to obtain their COCs.

Because of the rush of BCP applications that were filed before the July 1, 2015 effective date of the 2015 amendments, 38 sites received acceptance letters before July 1, 2015  but have executed BCAs AFTER that date. NYSDEC recently clarified that this subset of Gen 2 sites are not subject to the 2019 COC deadline but instead will have until March 31, 2026 to obtain their COCs.

The NYSDEC recently issued a memo discussing this clarification and listing the 38 Gen 2 sites that will be subject to the Gen 3 COC deadline. The memo is available here

EPA Memo Details Proposed EPA Budget Cuts

August 8th, 2017

NYSDEC To Finally End Voluntary Cleanup Program

May 30th, 2017

In 1994, the New York State Department of Environmental Conservation (NYSDEC) established an administrative voluntary cleanup program (VCP) in which landowners, prospective purchasers and other parties could investigate and/or remediate sites that are contaminated with hazardous substances and petroleum under the supervision of the NYSDEC (See “Organization and Delegation Memorandum #94-32, Policy: Voluntary Cleanup Program”). When the cleanup was completed, the VCP applicant would receive a release from liability from NYSDEC. The VCP was administered pursuant to the NYSDEC Voluntary Cleanup Program Guide.

The Brownfield Cleanup Program (BCP) was intended to supersede the VCP. The NYSDEC stopped accepting VCP applications on October 31, 2003. Existing VCP applicants had the option of transitioning into the BCP by June 1, 2004 or to complete the remediation under the VCP. Indeed, at one point the NYSDEC would not allow purchasers of VCP sites to enroll in the BCP.

Back in 2015, the Town of Brookhaven filed a combined Article 78 petition and complaint to challenge a waste consolidation and capping remedy approved by NYSDEC under the VCP. The town argued, inter alia,  the remedy was arbitrary and capricious, that NYSDEC lacked authority to require the cleanup of the Site under the VCP, and that NYSDEC violated the State Environmental Quality Review Act (“SEQRA”) because the agency did  not  take  into  consideration the  proximity   of the  contaminated landfilled materials  to  the Carman River,  a New  York  State-designated Wild  and Scenic River that derived 95% of its flow from surrounding groundwater. The town sought an order requiring the Metropolitan Transportation Authority (“MTA”) and the Long Island Railroad (LIRR) to undertake a full remediation and removal of all contaminated soils and hazardous materials that had been disposed near the LIRR Yaphank station.

The state supreme court judge ruled that the NYSDEC lacked authority to create the administrative VCP. As a result, the court barred the agency from requiring the VCP volunteers from implementing the remedy approved in the NYSDEC a decision document. Town of Brookhaven vs Metropolitan Transportation Authority, No. Index No. 2015-04273 (Sup Ct.-Suffolk Cty)

The court said NYSDEC created the VCP “out of whole cloth” without enabling legislation. Moreover, the court noted:

“The DEC has not promulgated any Rules in the New York Code Rules and Regulations described or remotely resembling a Voluntary Cleanup Program. There are no Rules or statutes governing or guiding admission into the program, there are no Rules or statutes governing the obligations of a volunteer, and there are no Rule or statutes governing or guiding what benefits volunteers are to receive upon completion of the program. Without enabling legislation or Rules, the DEC has, in effect, written on a “clean slate” to create an entirely new program based solely on what DEC administrators may personally believe is good public policy, without guidance, instructions, or authority from the Legislature.

As a result, the court found NYSDEC violated the constitutional separation of powers/non-delegation doctrine and that its VCP was illegal, ultra vires, and contrary to law.

Rather than appealing this decision, the NYSDEC has decided to finally wind down the VCP.  The agency recently sent letters to the approximately 150 existing VCP projects informing them that they have until March 31, 2018 to complete a remedial program and receive a Release or No Further Action Letter. After that date, all Voluntary Cleanup Agreements (VCAs) will be terminated.  Volunteers who cannot complete their projects by that date may apply to BCP or enter into an Order on Consent under the state superfund program.  Projects that are currently subject to a multi-site VCA that cannot be completed by March 31, 2018 may pursue entry into the BCP on an individual site basis, or may be the subject of a multi-site Order on Consent.

We think the court erred that NYSDEC did not have the authority to create the VCP. Afterall, the NYSDEC has broad authority to abate pollution under ECL § 03-301 and to arrange for private parties to respond to petroleum discharges under Navigation Law § 176(7)(c). See also Consolidated Edison Co. of New York, Inc. v. Department of Environmental Conservation, 71 N.Y.2d  186, 192-93{1988). Nevertheless, 14 years after the BCP was enacted, we think NYSDEC is right to terminate the VCP.

Remedial Program Reform Proposals for EPA Administrator Pruitt

February 28th, 2017

Regulatory reform is at the centerpiece of the Trump Administration’s plan to stimulate economic growth. During the presidential campaign, candidate Trump vowed to rollback a variety of Obama Administration Climate Change Initiatives but said little about EPA remedial programs such as the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or superfund). Based on his testimony and follow-up written response to Congress, it appears that EPA Administrator Scott Pruitt recognizes the value of brownfield programs and the need to remediate contaminated sites. There also seems to be strong bipartisan support for the brownfield program in the House committee responsible for the EPA budget.

As a result, I have shared the following recommendations to Administrator Pruitt for reforming EPA’s remedial programs. These suggestions could improve the efficiency of the remedial programs without weakening environmental protections. Some of the changes could be achieved through legislative amendments but could be administratively implemented if Congress does not have the time to address environmental issues during the current term. The proposals are not in any order of importance

  1. CERCLA Continuing Obligations Guidance– The 2002 amendments to CERCLA added the Bona Fide Prospective Purchaser (BFPP) and Contiguous Property Owner defenses. These defenses (in particular the BFPP defense) were enacted to help incentivize purchasers to acquire and remediate contaminated properties so they can be put back into productive use. While EPA promulgated an all appropriate inquiries (AAI) rule to help define the pre-acquisition obligations necessary to be able to assert these defenses, there is little guidance from EPA on how property owners or operators may satisfy their “appropriate care” or “continuing obligations” so they can maintain their liability protection after taking title or possession of property. The 2003 “Common Elements Guidance” is inadequate. The lack of guidance and recent caselaw have created uncertainty for developers and undermined the value of these defenses. EPA should issue detailed guidance on what constitutes appropriate care. Developers and property owners should not have to rely on ASTM to provide guidance on how to comply with their legal obligations.

2. Revise “Enforcement Discretion Guidance Regarding the Affiliation Language of CERCLA’s Bona Fide Prospective Purchaser and Contiguous Property Owner Liability Protections” – This memo did not sufficiently address concerns raised by the Ashley decision that purchasers of contaminated property could lose their eligibility for the BFPP by agreeing to indemnify sellers. 

3. More Robust Use of PPAs and CPO “Assurance Letters”- With the passage of the 2002 CERCLA amendments, EPA announced in guidance that it would issue PPAs or CPO assurance letters only in rare instances because the landowner liability protections were self-implementing. However, these agreements can be incredibly valuable. EPA should urge its regional offices to issue such documents where they can facilitate redevelopment such as in urban superfund sites (e.g., GowanusCanal, Newtown Creek) and where municipal governments are willing to foreclose on contaminated properties and then convey title to redevelopers. 

4. Clarify Scope of Municipal Liability Protections Under CERCLA to Encourage Taking Title of Vacant Properties and Facilitate Reuse- There is considerable uncertainty among local government community if municipalities can invoke the protections of 42 U.S.C. 9601(20)(D) and (9601(35)(A)(ii) where they take title in lieu of formal tax foreclosure proceeding since this may not be “involuntary”. Local governments might be more willing to take title and assemble vacant properties so they would become more attractive to redevelopment if they could obtain clarity on the scope of this protection. Presumably, a purchaser from a municipality would then be able to assert the BFPP or third party defense. A related problem is that the BFPP defense would not apply to local governments who took title prior to January 11, 2002.

5. Reform EPA Remedial Programs Into a Single Unified Cleanup Program- Our nation’s remedial programs were created as we became aware of new concerns. This has resulted in different cleanup standards and procedures. We have separate staffs for CERCLA, RCRA, TSCA (PCBs), USTs, etc. We now have three decades of experience remediating sites. I think we should strongly consider combining these discrete offices into one streamlined remedial office that will provide consistent regulatory approach and reduce unnecessary staff. 

6. Clarify Lender Obligations Following Foreclosure- The original EPA lender liability rule contained a “bright-line” test for lenders to follow so they can be deemed to have taken commercially reasonable steps to sell property following foreclosure, thereby staying within the safe harbor created by the secured creditor exemption. Unfortunately, when the rule was vacated and the 1996 lender liability amendments were added to CERCLA, the “bright line” test was omitted. So lenders have no guidance on how to proceed during what is the worst economic downturn since the Great Depression. Can they reject an offer that is equal to artificially depressed price? How long can they hold onto property without losing protection? Some states allow for two years while others allow up to five years to sell the property. Greater clarity will help lenders move these properties.If control of Congress changes, this can be legislative proposal.  

7. Encourage States to Adopt Licensed Professional Programs– States are facing severe staffing constraints which are creating backlogs in site remediation.  EPA could use its authority under section 128 of CERCLA (approval of state response programs) as well as its RCRA delegation authority to have states adopt licensed site professional programs like MA, NJ and CT so that states could devote their limited resources to the sites that pose the greatest risk to human health and the environment. EPA could establish a national licensing program for consultants that sets forth minimum professional requirements and states could adopt these programs as part of their remedial programs. One way to accomplish this could be by amending the All Appropriate Inquiries (AAI) Rule to revise the definition of Environmental Professional. This could avoid having to promulgate a new regulation.  

8. Revise NCP- revising the NCP. It was last revised in 1990. Since then we’ve learned a lot about cleanup and have lots of informal guidance to help streamline the process and make it more cost-effective. Doesn’t make sense to continue to follow the RI/FS lockstep process. Why review five alternatives? The NY brownfield program requires applicants tp propose remedy and an unrestricted cleanup alternative, and this approach has been able to generate robust cleanups. The NCP could be revised to incorporate streamlined provisions for brownfield sites that will produce faster and more cost-effective cleanups while preserving right of contribution. Right now, firms are incentivized to follow the lock-step approach to preserve their ability to pursue cost recovery. 

9. Revise CERCLA Disclosure Requirements With Amnesty Program To Incentivize Accelerated Cleanups- Property owners are not currently required to disclose historic contamination. As a result, many sites remain unremediated until the owner is ready to sell the property. To help accelerate cleanups, I think EPA could announce it was going to change its disclosure rules from reportable quantity approach to contaminant concentrations and at the same time provide current property owners a one year amnesty period to voluntarily disclose contamination. Much like the EPA audit policy, owners who disclose the existence of contamination that they are not responsible for would be afforded BFPP status. They would have to exercise “appropriate care” but not full cleanup. The SARA Title III program resulted in substantial reductions in pollution. It seems worth the try to experiment with an amnesty period for contaminated sites. 

10. Seek Cost Recovery from Responsible Parties When Brownfield Grants Are Awarded – According to a 2004 EPA study, there may be 300,000 contaminated sites in the nation that may cost over $200 billion (not adjusted for inflation) to remediate.  Many brownfield sites were created when corporations closed plants and either relocated elsewhere in the country or exported the jobs overseas yet remains financially viable. EPA has been granting brownfield grants to local governments without considering if there is a responsible party.  Before EPA gives away public money, it should make a determination that there are no responsible parties. If responsible parties are available, RPA should give the responsible party an opportunity to conduct an investigation and remediation of the contaminated property is has left behind. If the responsible party declines to participate int he cleanup, EPA could then award the Brownfield grant and seek cost recovery. In this way, the brownfield funding program would not have to rely entirely on Congressional appropriations.

11. Move Away from Brownfield Grants/Loans and To Tax Credits- The brownfield financial incentives are becoming like public works projects. The funding often takes too long for private development. Rather than giving funds to local government to investigate and reuse planning, EPA could incentivize the private market to do this work by expanding and extending brownfield tax credits. The New York Brownfield tax credit program has resulted in an estimated $7.5B in investment in the state at a cost of $750MM. Tax credits put the upfront risk on the developer instead of the taxpayers. 

12.Adopt National Environmental “WARN” Obligations Under RCRA- to prevent future brownfields, companies closing operations should be required to notify relevant permitting authority at least 90 days in advance of closing to ensure that appropriate closure occurs so that public money does not have to be used to address cleanup or local government seeks brownfield funds.

13. Require States To Use Parceling To Encourage RCRA Brownfields- EPA RCRA Brownfield Reforms urged states to allow owners or operators of TSDF to sell off clean parcels of their facilities (e.g., portions never used for any waste management) while the HWMUs or SWMUs were undergoing corrective action. EPA should more forcefully use its delegation authority to allow this much needed reform.  

14. Clarify RCRA liability for Generator-only sites- There is much confusion if closure obligations for a generator site run with the land. In other words, a site may have been owner or operated by a defunct generator. A prospective purchaser is interested in redevelopment but is concerned it will become subject to closure obligations for the areas where wastes were managed. Presumably, generator sites could be treated as any brownfield site without the need to undergo formal RCRA closure.  

15. Add Landowner Liability Protections to TSCA for PCB Cleanups- Purchasers often take steps to qualify for CERCLA BFPP only to learn after taking title that the property has been impacted with PCBs and they are subject to TSCA cleanup. This might require Congressional action but I do not see any reason why TSCA should not have a BFPP defense. Congress added AAI and BFPP to OPA in 2004 with little controversy.

16. TSCA PCB Reform- The PCB cleanup and disposal rules are a bit RCRA-like, a bit CERCLA-like and not well integrated. The cleanup should also not depend on the original spill concentration but on current concentrations and media. I’d like to see the entire Subpart D to 40 CFR 761 repealed, and disposal of PCB-containing material handled entirely within RCRA via the listed-waste and LDR route. 

17. Adopt Restatement (Third) of Torts Approach to Joint Liability– When CERCLA was enacted, Congress said that liability should be premised on evolving concepts of common law. At the time of its enactment, the Second Restatement was in effect which favored use of joint liability for indivisible harm. However, this was before states began adopting comparative negligence statutes. The Third Restatement states that the law has shifted dramatically from the use of joint liability and that courts should try to find a basis for apportioning liability where there is a reasonable basis. Despite the publication of the Third Restatement in 2000, federal courts continue to cling to the doctrine espoused by the Second Restatement. Recently  an appeals court declined to adopt the suggestion of an amicus brief submitted by The American Tort Reform Association to use the Third Restatement to apportion liability for the Fox River cleanup. My post on this case is at: http://www.environmental-law.net/2012/08/7th-circuit-declines-to-apply-third-restatement-of-torts-in-apportionment-case/ . The Administration might want to have Congress clarify that CERCLA liability should be based on the Third Restatement or  EPA could issue interpretative guidance that it now considers the Third Restatement to be the governing law for CERCLA liability. This  would reflect the Congressional intent to follow the evolving common law and confirm the direction where the law has moved.

THE TEN COMMANDMENTS OF ENVIRONMENTAL LAW

February 23rd, 2017

The collective wit and wisdom from three decades of practicing environmental law (in no order of importance).

1.Thou shall not call the environmental lawyer the day before the closing

2. Thou shall not accept without further inquiry a Phase 1 reports that says there are no RECs

3. Thou shall be concerned when the Phase 1 says the tank was reportedly removed, asbestos was reportedly abated, or the dry cleaner was reportedly only a drop off location. 

4.If a tank be in the ground, it shall have leaketh

5. If a dry cleaner operated at the property, it shall have leaketh

6. He who is most anxious to close shall bear the environmental risk.

7. Thou shall looketh carefully at Phase 1 recommendations

8. Thou shall be concerned when the real estate partner asketh you to take a quick look at a “clean” phase 1.

9.Thou shall not underestimate the importance of public support during project development.

10. Thou shall know that you need a permit to drain the swamp

 

 

 

 

 

 

Pre-Publication Notice Identifying 30 Environmental Rules Subject to Regulatory Freeze

January 26th, 2017

In a prior post, we discussed the regulatory freeze that had been implemented by the Trump Administration on its first day in office. The moratorium applied to proposed rules issued by the Obama Administration since election day that had not yet gone into effect. We provided a list of environmental and energy rules that were potentially subject to the moratorium.

A notice will be published in the Federal Register identifying 30 environmental laws that will be frozen for up to 60 days. A pre-publication copy of the notice is available Here