Hazardous Waste

EPA Issues Enforcement Discretion Memo for Routine Civil Violations Arising from COVID-19 Pandemic

The federal Environmental Protection Agency has issued a Memo announcing that it will temporarily exercise enforcement discretion for certain civil violations where the non-compliance was a result of the COVID-19 pandemic. Contrary to many news reports, EPA is not providing a sweeping opportunity for business to pollute at will. Instead, the policy is a targeted …

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NYSDEC Determines Remedial Activities Are “Essential Services” Under Governor’s Executive Order

On Saturday, March 21, 2020, New York Governor Andrew Cuomo issued a new Executive Order No. 202.8 (EO 202.8) “Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency ” requiring all businesses and not-for-profit entities to require 100%  of  workers to work from home effective at 8 p.m. Sunday, March 22, 2020.Businesses …

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New DEC Interactive Map Expedites Environmental Due Diligence

Performing environmental due diligence has become easier with the launch of the New York State Department of Environmental Conservation DECInfo Locator. Until the launch of this website, consultants and attorneys seeking information about contaminated sites had to file requests under the state Freedom of Information Law (FOIL). The limited NYSDEC FOIL staff usually took weeks …

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EPA PFAS Action Plan will bring back the fun in Superfund

Last month, the United States Environmental Protection Agency (“EPA”) issued its Action Plan  to address concerns about perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) which have increasingly being detected in drinking water systems. The action plan has the potential to significantly increase liability for manfacturers and users of products containing or treated with these compounds.. …

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Remedial Program Reform Proposals for EPA Administrator Pruitt

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 …

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Appellate Court Restricts NYSDEC Ability to Spend Superfund Money

A legal maxim is that  bad facts often make bad law. It appears that complex facts may have confused an Appellate Division court in In the Matter of FMC Corporation vs New York State Department of Environmental Conservation, 2016 N.Y. App. Div. LEXIS 6785 (App. Div.-Third Dept. 10/20/16) where the three judge-panel appeared to rule …

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NY Court of Appeals Finds PRP Letter Triggers Contractual Indemnification

The New York State Court of Appeals held that a PRP letter issued by the New York State Department of Environmental Conservation (NYSDEC) was sufficient to trigger an indemnity obligation under a purchase and sale agreement. While lower courts have found PRP letters to constitute “suits” within the meaning of  a Comprehensive General Liability policy …

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Principal New York State Environmental Laws Impacting Commercial Leasing Transactions

Parties to commercial leasing transactions frequently overlook environmental issues because they believe that tenants who do not use large quantities of hazardous chemicals will not be exposed to significant environmental liability. Consequently, the parties may do little to no environmental due diligence and use obsolete or boilerplate lease provision that do not specifically allocate environmental …

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NYSDEC Proposes Amendments to Haz Waste Rules

The New York State Department of Environmental Conservation is proposing significant changes to its hazardous waste management regulations (6 NYCRR Parts 370-374 and 376). The proposed amendments are available here. The proposed changes will incorporate thirty-seven (37) amendments to the federal Resource Conservation and Recovery (RCRA) regulations that have been adopted by the federal Environmental …

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Bankruptcy Courts Rules Bank May Not Seek Cost Recovery for Contaminated Site Purchased in Auction Sale

Pete Seeger’s popular song from the 1960s “Where have all the Flowers Gone?” has the haunting recurring lyrics “When will they ever learn”. This song came to mind when we came across another case of a bank taking title to contaminated property without doing any environmental due diligence. In this case, Suburban Bank and Trust …

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