Brownfields

CERCLA Contribution Action Not Available for BCP/VCP Cleanup

Brownfields, CERCLA, New York Brownfield Cleanup Program / By

In Queens W. Dev. Corp. v. Honeywell Int’l, 2011 U.S. Dist. LEXIS 91795 (D.N.J. 2011), the plaintiff developers commenced remedial activities at two parcels that were accepted into the New York State Department of Environmental Conservation (NYSDEC) Brownfield Cleanup Program (BCP) and Voluntary Cleanup Program (VCP). Plaintiffs filed a lawsuit against the defendants as successors …

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Recent EPA PPAs Require Financial Assurances

Brownfields, Hazardous Waste / By

EPA recently published notice of two proposed prospective purchaser agreements (PPAs) . PPAs had been a critical tool for brownfield development prior to the 2002 CERCLA amendments that added the bona fide prospective purchaser (BFPP) defense. Following the 2002 amendments, EPA issued guidance that indicated that the agency would only issue PPAs in special circumstances since the BFPP was …

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A Lawyer, an Underwriter and an Appraisor-An Update

Brownfields, Disclosure of Environmental Liabilities, Environmental Due Diligence, Lender Liability / By

The title of this post sounds like a teaser to a bad joke but unfortunately it refers to the latest round of motions in two sprawling lawsuits involving a defunct planned community that was to be developed on what proved to be a part of a world war 2 bombing practice range. The defendants include …

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NYC Brownfield Projects Now Eligible for IRS Tax Deduction

Brownfields, New York Brownfield Cleanup Program, NYC OER / By

Section 198(a) of the Internal Revenue Code allows owners of qualified brownfield sites to deduct their cleanup costs in the year they are incurred. To qualify for this deduction, the owner must obtain a certification from the state where the site is located that the site qualifies as a brownfield. The NYC Office of Environmental …

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Confusion Over Scope And Timing of RCRA Cleanup Leads to Potential Liability for Brownfield Developer

Brownfields, Corporate and Real Estate Transactions, Environmental Due Diligence, Hazardous Waste / By

Last year, the brownfield community was rattled by the Ashley II decision of United States District court for the District of South Carolina holding that a brownfield developer failed to comply with the requirements of the Bona Fide Prospective Purchaser defense. The court ruled the developer did not comply with its post-closing continuing care obligations …

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Court Allows Claims To Proceed Despite NFA Letter

Brownfields, Corporate and Real Estate Transactions, oil spills, Underground Storage Tanks / By

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

Brownfields, Disclosure of Environmental Liabilities, Environmental Due Diligence / By

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

Brownfields, NYC OER / By

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

Brownfields, NYC OER / By

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

Brownfields, Underground Storage Tanks / By

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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