Court Allows Claims To Proceed Despite NFA Letter

No Further Action (NFA) letters have become an important tool in transactions involving contaminated properties. Contracting party often use issuance of an NFA letter has the mechanism for establishing that a party has satisfied its obligations under an agreement. Issuance of an NFA letter often also operates as a release of statutory liability and may […]

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State Court Reduces Damages of Condo Purchaser Because It Failed To Conduct Environmental Investigation

In the wake of the Great Recession, many foreign investors are buying bulk quantities of condominium units at what they perceive to be distressed prices for projects located in certain gateway cities such as Miami and New York. Frequently, these condominium projects are developed on brownfield sites. In phased transactions where multiple buildings are constructed

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NYC Brownfield Program To Announce New Financial Incentives

The New York City Office of Environmental Remediation (OER) will be announcing new financial benefits and other incentives for its landmark NYC Brownfield Program at a workshop on November 9th. The new benefits will include the following: New: $590,000 in Federal grants to be available for environmental investigation New: Certification now available to enable deduction of cleanup

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EPA Region 2 Office Officially Recognized NYC Brownfield Program

EPA recently recognized the NYC brownfield cleanup program-the first time a municipal cleanup program has received such status.  The recognition under section 104(k) of CERCLA means that the City’s Office of Environmental Remediation (OER) is an “eligible entity” which may apply for and use federal brownfield investigation and cleanup grants and loans. It is important to note that this

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NJ Court Remands Recission of NFA Letter

A New Jerseyappellate division court ruled that a property owner is entitled to have an administrative hearing regarding the rescission of a no further action (NFA) letter by the New Jersey Department of Environmental Protection (NJDEP). In the Matter of Crompton Colors, Inc., No. A-0778-09T1 (App. Div. 10/27/11) In this case, Hartz Mountain Industries acquired

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The Importance of Hiring an Environmental Consultant For Leaking NYC Heating Oil Tanks

Most buildings in New York City have fuel oil-fired burners to supply heat and hot water. The heating oil can range from #2 oil which is similar to diesel fuel to #6 fuel oil which is heavy and thick. Buildings typically store the fuel in storage tanks located in basements or beneath the sidewalk. The tanks

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District Court Rules Injunctive Order not Dischargeable Claim

New Mexico had issued an order under its Water Quality Act to abate groundwater contamination eminating from septic field and lagoon on debtor’s property. The debtor argued that since the state was essentially requiring it to pay for the cleanup, the order should be considered a claim that could be discharged under the Bankruptcy Code.

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Chapter 13 debtor may not avoid cleanup order

A Chapter 13 debtor had previously owned a gas station. After the New York State Department of Environmental Conservation (NYSDEC) issued a notice of violation involving failing to comply with underground storage tanks (USTs) regulations, the debtor filed its chapter 13 petition. In its Statement of Financial Affairs, the debtor disclaimed knowledge of environmental issues

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NY Ethics Opinion May Erode Confidentiality for Sampling Results

In April 2009, the New York Rules  of Professional Conduct (Rules) for attorneys replaced the New York Code of Professional Responsibility disciplinary rules (Code).  Section 1.6 of the Rules now governs the obligations of lawyers involving confidential information obtained during or relating to representation of a current or former client Rule 1.6(a) provides that a

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Should a Vapor Encroachment Condition (VEC) Always Be a REC?

In a recent ASTM conference call, several consultants took the position that they could not envision a circumstances under which a “vapor encroachment condition” (VEC) identified pursuant to ASTM E2600-10 would not be a “recognized environmental condition” (REC) pursuant to ASTM E1527-05. I was surprised by this statement and therefore have decided to post about

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