Posted By Jessica Zalin on November 27, 2013
Have you ever wondered what you can do to reduce fines for environmental violations that you suspect you may have, but you live in fear of an environmental enforcement action that hammers you for it?
You may be able to avoid some of the pain by simply telling the government about the violation yourself, under a new state Environmental Audit Incentive Policy. (more…)
Posted By Matthew Jokajtys on October 14, 2013
In a highly unusual move, the New York Court of Appeals has decided to hear an appeal despite an intermediate appeals court’s unanimous ruling. It was no surprise that Norse Energy Corp. USA appealed that lower court ruling upholding the right of New York municipalities to regulate fracking through local land use laws. But court watchers in general, as well as fracking followers, were surprised by the high court’s ruling, are looking forward to that court’s ruling in Matter of Norse Energy Corp. USA, v. Town of Dryden et al., APL-2013-00245, that will offer the most authoritative state-level ruling possible on the fate of fracking in New York State. (more…)
Posted By Matthew Jokajtys on October 7, 2013
Here’s a pop quiz: after an eleven week trial in federal court, a jury hands down a verdict of nearly $105 million against ExxonMobil for contaminating New York City’s drinking water. On appeal, the verdict is upheld. What environmental law enabled the jury to find, and the appellate court to affirm, such a large verdict? The Superfund Law? The Clean Water Act? The Resource Conservation and Recovery Act?
If you guessed any of the above, you’d be wrong. (more…)
Posted By Matthew Jokajtys on September 23, 2013
The health threats posed by physical contact with contaminated soil or groundwater are well known. But increasingly, state and federal regulators are recognizing that harmful vapors from such contamination can be drawn into nearby buildings and pose a threat to the occupants. Known as soil vapor intrusion, this threat can come from undiscovered contamination beneath a building, or even from the remnants of previously remediated soil or groundwater.
In New York State alone, the Department of Environmental Conservation has “reopened” many sites in the past few years that had previously been considered completely remediated, and required new investigations into possible soil vapor intrusion threats. The growing concern over soil vapor intrusion has recently led the United States Environmental Protection Agency to endorse a significant change to the standard protocol for Phase I environmental site assessments, and it will have ramifications for many prospective purchasers around the country. (more…)
Posted By Matthew Jokajtys on September 19, 2013
In a move that has made industry insiders “ecstatic,” EPA Administrator Gina McCarthy signed a final rule on July 22, 2013 which will exclude certain solvent-contaminated industrial rags or wipes from regulation under the federal Resource Conservation and Recovery Act. The new rule excludes solvent-contaminated reusable wipes from regulation as solid waste (40 CFR 261.4(a)), and excludes solvent-contaminated disposable wipes from regulation as hazardous waste (40 CFR 261.4(b)(18)) under RCRA.
EPA estimates that the new exclusions will save between $21.7 and $27.8 million per year, and will affect nearly 95,000 facilities in 13 different economic subsectors, including the chemical and allied product manufacturing facilities, solid waste management facilities and industrial laundries. But the more important effect, in our view, is that it removes one of the irrationalities of the RCRA program, namely, tagging commonly used materials as a “waste” when they’re on their way to being cleaned and recycled. (more…)
Posted By Matthew Jokajtys on August 8, 2013
After the cap and trade program died in Congress in 2009, and the successor to the Kyoto Protocol never appeared at the 2009 Copenhagen Climate Conference, climate change stagnated on the national agenda of the United States. With a hyper-partisan Congress, it became apparent that the political will to address climate change through the legislature simply did not exist. However, in June of 2013, President Obama introduced a roadmap for climate action that sought to address climate change while sidestepping congressional involvement entirely.
Dubbed The President’s Climate Action Plan, the Plan describes itself as “a blueprint for steady, responsible national and international action to slow the effects of climate change so we leave a cleaner, more stable environment for future generations.” It consists of three main pillars of action that the executive branch can take without relying on a recalcitrant Congress. The three main pillars are: (1) cut carbon pollution in America; (2) prepare the United States for the impacts of climate change; and (3) lead international efforts to address global climate change.
So what does the President’s plan mean for New York City? (more…)
Posted By Matthew Jokajtys on July 24, 2013
Many insurance policies contain a “pollution exclusion” which seeks to exclude coverage for losses arising from pollution, except in the case of a “sudden and accidental” release. “Sudden and accidental” may bring to mind a burst pipe or overturned tanker truck, but a recent decision in the United States District Court for the Southern District of New York suggests that the interpretation can be much more complicated. (more…)
Posted By Matthew Jokajtys on May 16, 2013
Municipalities in New York have received the green light to regulate fracking – even to the point of banning it – through local zoning ordinances. It’s a second consecutive victory for municipalities in the New York courts, and an affirmation of New York’s long history of vesting decision making powers in local governments through Home Rule.
On May 2nd, 2013, the Appellate Division for the New York State Supreme Court Third Judicial Department handed down its ruling in the closely watched case of Norse Energy Corporation v. Town of Dryden et al. As we had previously reported here at the Periconi, LLC Environmental Law Blog, Anshultz Exploration Corp., the predecessor-in-interest to Norse Energy, had appealed a 2012 ruling of the New York State Supreme Court upholding a Dryden, New York zoning ordinance which limited the areas in the town where fracking was permitted (as well as a similar zoning ordinance in Middlefield, New York, which was consolidated with the Dryden case). (more…)
Posted By Matthew Jokajtys on April 30, 2013
EPA has just extended to tenants the Bona Fide Prospective Purchaser (“BFPP”) protection, by which Congress previously exempted certain prospective owners from harsh Superfund liability. Even where the landlord loses its BFPP protection, the new EPA enforcement guidance memo allows tenants to hold onto it, assuming the tenant can meet certain requirements.
Traditionally, a tenant derived its BFPP status from the landowner who complied with each of the eight criteria set out in Section 101(40)(A)-(H) of the Superfund law. Principal among these requirements is conducting “All Appropriate Inquiries” before purchasing the property, usually through commissioning a Phase I Environmental Site Assessment. There are also continuing obligations after purchase, such as not spreading the contamination around by development activities, and providing EPA with access to the property. Simple enough, except for the cases where landowners failed or refused to comply with their ongoing obligations and lost their BFPP status.
So what happens to a tenant when a landowner loses its BFPP status? (more…)
Posted By Matthew Jokajtys on April 8, 2013
Beginning in the winter of 2006-2007, bees began to die in – or simply disappear from – commercial hives around the US. Increasing numbers of beekeepers since then reported similar disappearances of bees, and the phenomenon became known as Colony Collapse Disorder, or CCD. While the exact causes of CCD are unknown, beekeepers and environmental groups have argued that the losses are due to a class of pesticides called neonicotinoids, a type of pesticide that is taken up by plants and stored in tissues as the plant grows and develops. Here’s why even the pesticide manufacturers are now taking the problem seriously. (more…)