Hazardous Waste

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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NY Governor Sends Revised BCP Reform Bill to Legislature

Earlier this week, Governor Cuomo sent his sweeping BCP reforms to the State Legislature. Under the state Constitution, the Governor has 30 days to make technical amendments to his budget legislation without involving the legislature. Despite vociferous complaints by brownfield developers, environmental lawyers and affordable housing advocates about the severe curtailments to the categories of projects …

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NYSDEC Adds New Categories of Sites To Database To Chagrin of Some Property Owners

The New York State Department of Environmental Conservation (NYSDEC) recently announced that it had added approximately 1,950 sites to its Environmental Site Remediation Database Search database of sites that are subject to one of the agency’s remedial programs. The  NYSDEC said it was adding these additional sites to facilitate real estate transactions and address the …

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9th Circuit Finds Shopping Center Owner Did Not Establish BFPP Status for Dry Cleaner Contamination

We have previously discussed the series of district court rulings in Voggenthaler v Maryland Square LLC where homeowners and the Nevada Department of Environmental Protection (NDEP) sued past and former owners of a shopping center and operators of a former dry cleaner because of a mile-long groundwater plume resulting from PCE spills from the dry cleaner …

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Dry Cleaner Settles Foreclosing Lender RCRA Action

We previously discussed the RCRA lawsuit filed by a bank that had foreclosed on a residential property that turned out to be impacted by contamination from an adjacent dry cleaner in Forest Park National Bank v Ditchfield.  The bank had alleged that vapors migrating from the contaminated groundwater and soil constituted an imminent and substantial endangerment …

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