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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

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 2015 amendments to New York’s Brownfield Cleanup Program (BCP) made a number of substantive changes to the program, including changes to the refundable tax credits, their amount and how they are calculated. The 2015 amendments create “Generation 3” of the BCP. As it relates to sites that entered the BCP before June 23, 2008 (Generation 1 sites), the 2015 amendments required issuance of the site’s Certificate of Completion (COC) by the New York State Department of Environmental Conservation (NYSDEC) on or before December 31, 2017; failure to obtain a COC by that date would allow NYSDEC to amend the Brownfield Cleanup Agreement (BCA) and migrate the site to the Generation 3 program. Among the differences between Generation 1 and Generation 3 programs are significantly different (and in many instances lower) Tangible Property tax credits. Continue Reading Old Brownfields Become “New” BCP Sites

The New York State Public Service Commission (“PSC”) recently issued an order that will shape New York’s energy portfolio for years to come. The Clean Energy Standard (“CES”), issued and effective August 1, 2016, is a bold initiative that mandates renewable energy supply 50 percent of the State’s electricity needs by 2030. New York seeks to achieve this goal by focusing on three major areas: (1) large utility scale solar, wind and other renewables; (2) offshore wind; and (3) subsidized nuclear power. The expectation is that by 2030, New York greenhouse gas emissions will be reduced by 40 percent from 1990 levels. Continue Reading New York’s Clean Energy Standard and its Impact on the State’s Energy Portfolio

On June 23, 2016, we wrote about legislation that had passed both the New York State Assembly and New York State Senate that would allow people to bring a timely personal injury claim arising from claimed exposure to contaminants within three years of a site’s designation as either a Federal or New York State Superfund Site. Continue Reading Reset of New York Toxic Tort Statute of Limitations Signed into Law

CA-2016-07-19Through an interim final rule effective August 1, 2016, the U. S. Environmental Protection Agency (“EPA”) is increasing the maximum daily penalties it may assess for environmental violations that occurred any time after November 2, 2015. Any violation of an environmental statute enforced by the EPA, i.e., Clean Water Act, Clean Air Act, TSCA, RCRA, CERCLA and EPCRA, may now have a penalty that is up to 150 percent higher than the previous daily maximum. For example, a Class I violation of EPCRA carries a statutory maximum penalty of $25,000 under 42 U.S.C. 11045(a). Now, the maximum daily civil penalty for that violation is $53,907. Continue Reading Maximum Civil Penalties for Environmental Violations Set to Dramatically Increase

Phillips Lytle Environment Client Alert June 2016By two letters dated June 14, 2016, the New York State Department of Environmental Conservation (“NYSDEC”) initiated two information requests to businesses across the State to identify the use of certain perfluorinated compounds (“PFCs”). The letters were sent to chemical bulk storage facilities, petroleum bulk storage facilities, major oil storage facilities, fire departments and airports. NYSDEC added certain PFCs to New York’s list of hazardous substances by emergency regulations on January 27, 2016, and added other PFCs on April 25, 2016. Final rulemaking regulating these substances is ongoing, with the public comment period closing July 8, 2016. Continue Reading NYSDEC Requests Information About PFCs

New York State Senator Kathleen Marchione, a Republican from New York’s 43rd Senate District, introduced the “Hoosick Falls” bill ostensibly in response to her constituents’ ongoing water supply contamination concerns. This legislation, however, is not a rifle shot to address the Hoosick Falls situation. Rather, it has significant, long-term Statewide implications for many companies and potentially responsible parties (PRPs). The bill, S6824A, passed both the New York State Assembly and the Senate by wide margins, and would add Section 214-f to the New York Civil Practice Laws and Rules (CPLR.). If signed into law, this will allow people to bring a timely personal injury claim arising from claimed exposure to contaminants within three years of a site’s designation as a Superfund site or within the period authorized under CPLR Section 214-c, whichever is later. Continue Reading Legislation to Reset Statute of Limitations for Toxic Exposure Claims in New York