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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

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

Released in November, the Federal Government’s Climate Science Special Report (CSSR) concluded that “it is extremely likely that human activities… are the dominant cause of the observed warming since the mid-20th century.” Unsettling climate-related weather events have become increasingly common over the last few years, and according to the United States Global Change Research Program (USGCRP), these trends are expected to continue in the coming decades. Thousands of studies have been conducted around the world that document a wide array of changes in the environment, and conclusions reached in the CSSR are based on extensive evidence. This report directly contradicts the Trump administration’s stance on the issue, as the recently released National Security Strategy did not include climate change as a major threat to the U.S. Continue Reading A Look at the CSSR and What to Expect in 2018

On Tuesday, October 10, Environmental Protection Agency (EPA) Administrator Scott Pruitt issued a Notice of Proposed Rulemaking (NPRM) that would effectively repeal the Clean Power Plan (CPP or “rule”). The CPP focused on reducing carbon emissions from electric-generating power plants to combat global warming. As we previously reported, the Supreme Court granted an unprecedented stay of the rule in early 2016 after several challenges by states and industry groups. Interestingly, as Oklahoma Attorney General, Administrator Pruitt was one of 27 attorney generals to challenge the rule. Continue Reading EPA Announces Repeal of Clean Power Plan; New York AG Will Sue

BeakerExciting and expected news announced from the White House this week: The Frank R. Lautenberg Chemical Safety for the 21st Century Act, which provides for common-sense amendments to the Toxic Substances Control Act (TSCA), was signed into law by President Barack Obama after bipartisan support in both houses of Congress. Continue Reading Toxic Substances Control Act Reform Passes with Bipartisan Support

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