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
EPA Proposes to Replace Clean Power Plan with Affordable Clean Energy Rule
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
CERCLA Changes Bring More Funding for Cleanups and Comfort for Tenants
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
DEC Undertaking Statewide PFAS Evaluation at Remediation Sites
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
Controversial Tax Credit Deferral Not Included in NYS Budget
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
DEC P Site Program Coming into View
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
Old Brownfields Become “New” BCP Sites
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
New York’s Clean Energy Standard and its Impact on the State’s Energy Portfolio
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.
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Reset of New York Toxic Tort Statute of Limitations Signed into Law
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
Maximum Civil Penalties for Environmental Violations Set to Dramatically Increase
Through 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