Matthew Jokajtys | 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 [...]
Matthew Jokajtys | January 21, 2013
How do you clean up something as big and messy as the Gowanus Canal? On January 23-24, 2013, the United States Environmental Protection Agency will explain and defend its December 27, 2012, “Proposed Plan” for remediating the Gowanus Canal Superfund Site in Brooklyn, NY. The Proposed Plan formally identifies EPA’s “preferred remedy” for the pollution [...]
Matthew Jokajtys | December 12, 2012
A federal court in New York recently decided that the migration of subterranean contamination onto a neighboring property was not, by itself, a sufficient basis to hold a neighboring landowner jointly liable for remediation costs under the federal Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”).
Matthew Jokajtys | December 4, 2012
Congress enacted the Superfund Act, whose formal name is the Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA, in 1980 to promote the clean up (remediation) of properties, typically abandoned landfills or other sites, that had been contaminated by the disposal of hazardous materials. To further this goal, Congress cast a wide net and [...]
James J. Periconi, Esq. | May 31, 2012
Since the Second Circuit Court of Appeals decided Niagara Mohawk Power Corp v. Chevron U.S.A., Inc., 596 F.3d 112 (2d Cir. 2010), a number of other Circuits have followed the Second Circuit’s holding that parties who enter into a consent decree with the U.S. Environmental Protection Agency (“EPA”) following an EPA enforcement action and then [...]
James J. Periconi, Esq. | March 26, 2012
The Supreme Court of the United States has just unanimously ruled that administrative orders issued by the U.S. Environmental Protection Agency (“EPA”) under section 319 of the Clean Water Act (“CWA”) are “final agency actions” subject to judicial review under the Administrative Procedures Act (“APA”). Sackett v. United States EPA, 566 U.S. ____ (2012).
James J. Periconi, Esq. | February 22, 2012
In State v. Solvent Chemical Co., 10-2026-cv (2nd Cir. Dec. 19, 2011), the Second Circuit Court of Appeals held that Solvent Chemical Company (“Solvent”) could obtain a declaratory judgment that two adjacent property owners were responsible for future costs incurred by Solvent under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §§ [...]
James J. Periconi, Esq. | February 13, 2012
So far, in the Periconi, LLC Environmental Law Blog, we’ve discussed what to do before you purchase a contaminated property (see here) and what to do after you’ve purchased a contaminated property (see here), but there is a step that often takes place in between – i.e., between contract signing the closing on the purchase – [...]
James J. Periconi, Esq. | February 7, 2012
We realized, while writing about the new “Continuing Obligations Standards” for contaminated properties (see here), that in order to give a comprehensive picture of what needs to be done if you’re thinking about purchasing a contaminated property, we need to start at the beginning: the Phase I Environmental Site Assessment. This has to take place [...]
James J. Periconi, Esq. | January 31, 2012
New guidelines published in 2011 assist landowners in insuring that they meet all the requirements — specifically the “continuing obligations” — to avail themselves of the landowner liability protections under the federal Superfund Act.