Earlier this month, the Fifth Circuit held that sovereign immunity protected a number of state agencies and universities from Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) liability. Generally stated, sovereign immunity is a legal doctrine that prohibits private individuals from bringing civil lawsuits or criminal prosecutions against the state. State immunity from lawsuits is provided by the Eleventh Amendment, while the Supreme Court has established a similar rule for suits against the federal government. Sovereign immunity is not absolute, of course. The states and federal government may waive immunity or consent to the lawsuit. Continue Reading Fifth Circuit Court of Appeals Holds Sovereign Immunity Bars CERCLA Action Against State Agencies and Universities

On August 21, 2018, the Environmental Protection Agency (“EPA”) proposed a new rule which would replace the Obama-era Clean Power Plan (“CPP”) and establish new emissions guidelines for states to address greenhouse gas (“GHG”) emissions from electric-generating power plants. As background, the CPP was stayed by the Supreme Court in a 5-4 decision in February of 2016 before the rule ever went into effect. More recently, in October 2017, the EPA announced its intention to effectively repeal the CPP because it “exceeded” the EPA’s authority. Now, the EPA is proposing to enact the Affordable Clean Energy rule (“ACE Rule”) to reduce GHGs while giving states more flexibility to achieve that goal. Continue Reading EPA Proposes to Replace Clean Power Plan with Affordable Clean Energy Rule

Earlier this month, the United States Environmental Protection Agency (“EPA”) issued a memorandum that defines Adaptive Management (“AM”) and calls for its expanded implementation at Superfund sites across the country. The push for AM derives from one of many recommendations made by the EPA Superfund Task Force (“STF”), which was established by former EPA Administrator Scott Pruitt. As we previously reported, one of the former Administrator’s main priorities while in office was to revamp the Superfund program and restore it to “its rightful place at the center of the Agency’s mission.” The STF was established to further this goal and to “provide recommendations for improving and expediting site cleanups and promoting development.” Continue Reading EPA Recommends Use of Adaptive Management Techniques at Superfund Sites

Last Thursday, Basil Seggos, the Commissioner of the New York State Department of Environmental Conservation (“NYSDEC”) announced the first major update to New York’s State Environmental Quality Review Act (“SEQRA”) regulations in over 20 years. SEQRA establishes a process to systematically consider environmental factors early in the planning stages of actions that are directly undertaken, funded or approved by local or state agencies. Seggos believes the updates will “streamline the environmental review process and encourage sustainable development and renewable energy development without sacrificing SEQRA’s integrity or the environmental protection it affords.” Continue Reading New York State Department of Environmental Conservation Announces the Adoption of Revisions to the Regulations that Implement the State Environmental Quality Review Act

New revisions to the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) have been enacted as part of the Brownfields Utilization, Investment, and Local Development Act of 2018 (“BUILD Act”). Key changes include extension of the Bona Fide Prospective Purchaser (“BFPP”) defense to tenants, increased funding for remediation grants and new authorizations for federal and state funding through 2023. Continue Reading CERCLA Changes Bring More Funding for Cleanups and Comfort for Tenants

Co-location of wireless antennas, as well as a handful of other actions, may be removed from the previously proposed list of Type II actions that would not be subject to New York’s State Environmental Quality Review Act (“SEQRA”). These and other proposed revisions to the New York State Department of Environmental Conservation’s (“NYSDEC”) SEQRA regulations were released on April 4, 2018. Besides a reduced list of Type II actions, other notable changes include modifications to other Type II categories, lower Type I thresholds for residential development and clarifying language to require project sponsors to include late-filed comments in the Draft Environmental Impact Statement (“DEIS”). Comments on these revisions and NYSDEC’s Revised Draft Generic Environmental Impact Statement (“R-DGEIS”) will be accepted until May 4, 2018. Continue Reading Additional Proposed Revisions to NY SEQRA Regulations Released, Removing a Number of Proposed Type II Actions from Consideration

The New York State Department of Environmental Conservation (“DEC”) is requiring owners of remediation sites across the State (including those already remediated to DEC’s satisfaction) to analyze and report on the presence of 1,4-dioxane and per- and polyfluoroalkyl substances (collectively “PFAS”) in groundwater. This has been triggered by concerns about these “emerging contaminants” at Hoosick Falls and other sites across the State. DEC has begun to send letters to many remediation site owners notifying them of the new statewide evaluation requirements and asking site owners to schedule sampling dates. Continue Reading DEC Undertaking Statewide PFAS Evaluation at Remediation Sites

As proffered by Governor Andrew Cuomo in his proposed 2019 budget, payment of certain business tax credits, including those under the New York State Brownfield Cleanup Program (“BCP”), would be deferred for three years for those claiming more than a combined $2 million in such credits. For taxpayers with more than $2 million in credits in the 2019 and 2020 tax years, deferred credits would be allowed in tax years starting in 2021 and would only provide 50 percent of the deferred credits in 2021, 75 percent of the remaining credits in 2022 and the remainder in 2023. No interest would be paid on these deferred tax credits. Continue Reading Controversial Tax Credit Deferral Not Included in NYS Budget

Real estate and other transactions often involve property that has perceived environmental concerns. There can also be parcels that have modest known environmental impacts as well, however they do not make sense for either the New York State Superfund (“Superfund”) or Brownfield Cleanup Program (“BCP”) for any number of reasons. In the past, this has often left parties (buyers, sellers, developers and lenders) in a difficult position, unable to obtain any regulatory comfort for such properties. Continue Reading DEC P Site Program Coming into View

The New York State Department of Environmental Conservation (“DEC”) recently issued an enforcement discretion letter stating that it will exercise its enforcement authority with respect to certain provisions of the recently revised Solid Waste Management Program. As we previously reported, the final version of the comprehensive revisions, codified in Title 6 of New York Compilation of Codes, Rules and Regulations (“6 NYCRR”), took effect in November 2017. Continue Reading DEC to Exercise Enforcement Discretion over Problematic Part 360 Provisions