Real Property & Environmental Law Alert

Real Property & Environmental Law Alert

Transactional Real Estate, Development/Redevelopment & Environmental Law

Tag Archives: Brownfields

NYSDEC Hears Comments on Proposed Definition of “Underutilized”

Posted in Development/Redevelopment, Environmental & Green Issues
On July 29, 2015, the New York State Department of Environmental Conservation (NYSDEC) conducted a public hearing on its proposed definition of an "underutilized" site for purposes of the 2015 Brownfield Cleanup Act Amendments. As indicated in a prior blog, this definition is critical because being "underutilized" is one of the few ways that a New York City brownfield site can qualify for tangible property credits under the 2015 Amendments.… Continue Reading

2015 Amendments to New York State Brownfield Cleanup Program

Posted in Development/Redevelopment
After a number of failed attempts over the past several years, the New York State Legislature and Gov. Andrew Cuomo reached agreement as part of the 2015-16 state budget on sweeping amendments to the New York State Brownfield Cleanup Program (BCP). This achievement is significant in light of the scheduled expiration of tax credits under the program on December 31, 2015. The attached article published by Bloomberg BNA, reprinted with permission, and co-authored by David J. Freeman, reviews the key elements of the amended statute, evaluates their significance and identifies some of the important unresolved issues that will need to be addressed in implementing the new law.… Continue Reading

David J. Freeman to Chair Panel on Brownfield Reform at New York State Bar Association Environmental Law Section Fall Meeting

Posted in Development/Redevelopment, Environmental & Green Issues
David J. Freeman, a Director at Gibbons P.C., will chair a panel on reform of New York State’s Brownfield Cleanup Program at the Fall Meeting of the Environmental Law Section of the New York State Bar Association. The panel will discuss the Governor’s and Legislature’s actions this year―passage of an extension of the tax credit aspects of the Program, without enacting underlying reforms―and what is likely to happen next year. It will feature such prominent experts as Edward McTiernan, General Counsel of the New York State Department of Environmental Conservation; Christopher Goeken, Director of Public Policy and Governmental Relations of the New York League of Conservation Voters; Darren Suarez, Director of Governmental Affairs of the New York State Business Counsel; Jody Kass, Executive Director of New Partners for Community Revitalization; Philip Bousquet, Partner at Bousquet Holstein; and Linda Shaw, Partner at Knauf Shaw.… Continue Reading

New York Legislators PASS Extension of State Brownfield TAX CREDITS

Posted in Environmental & Green Issues
In the waning hours of this year's legislative session, the New York State Assembly and Senate have passed identical bills extending the sunset date for tax credits under the New York State Brownfield Cleanup Program from December 31, 2015 to March 31, 2017. To qualify for such credits, sites must obtain their Certificates of Completion from the New York State Department of Environmental Conservation (DEC) by the sunset date.… Continue Reading

Susanne Peticolas Authors Section on Bankruptcy for NJ Environmental Law Handbook

Posted in Development/Redevelopment, Environmental & Green Issues
Susanne Peticolas, a Director in the Gibbons Real Property & Environmental Department, contributed a section on environmental issues in bankruptcy to the 8th edition of the New Jersey Environmental Law Handbook. Her section discusses the issues created by the conflicting policies underlying bankruptcy law, focusing on a fresh start for the debtor, as well as environmental law, which focuses on making the polluter pay. The section covers a wide range of relevant topics, including which environmental claims are bankruptcy “claims,” how environmental claims are impacted by the automatic stay, the identity of the claim holder, and the relief that is being sought.… Continue Reading

New York City Brownfield Partnership Releases NYU Study on New York State Brownfield Cleanup Program

Posted in Environmental & Green Issues
The New York City Brownfield Partnership, a non-profit public-private partnership promoting the cleanup and redevelopment of brownfield sites in New York City, has just released a study analyzing the impact of the New York State Brownfield Cleanup Program (BCP) on the cleanup and redevelopment of brownfield sites in New York State. The study was directed by Barry F. Hersh, Clinical Associate Professor at New York University's Schack Institute of Real Estate, with financial support from the Partnership. The study provides timely and valuable information to the debate over proposed changes to the program.… Continue Reading

Cuomo Budget Proposals Seek to Revise NY State Brownfield Cleanup Program

Posted in Environmental & Green Issues
Governor Andrew Cuomo has proposed major revisions to the New York State Brownfield Cleanup Program (BCP) in the budget he submitted to the state legislature last week. These changes, if enacted, will have a major impact on the types of projects that will be attracted to and accepted into the Program, and the extent to which they are eligible for tax credits.… Continue Reading

Consensus Developing for Changes to New York State’s Brownfield Cleanup Program

Posted in Environmental & Green Issues
A remarkable consensus is emerging regarding proposed changes to New York State's Brownfield Cleanup Program. That consensus is reflected in recommendations made over the past several weeks by groups with membership and interests as diverse as the Environmental Justice Alliance, the Real Estate Board of New York, and the Environmental Law Section of the New York State Bar Association.… Continue Reading

“Removal vs. Remedial Action? – That is the Question” Second Circuit Answers “Removal” and Vacates District Court’s Grant of Dismissal on CERCLA Statute of Limitations Grounds in State of New York v. Next Millenium Realty, LLC

Posted in Environmental & Green Issues
Environmental attorneys have long wrestled with the issue of whether particular clean-up activities under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) fall under the statute of limitations for remedial actions, considered to be permanent responsive action, or for removals, considered to be interim remedial measures to address immediate threats to public health. In a governmental cost recovery action, guessing wrong can deprive a federal or state governmental entity of its ability to recover its clean up costs from Potentially Responsible Parties. In State of New York v. Next Millenium Realty, LLC, the Second Circuit vacated the District Court's determination, holding that once an activity is instituted as a removal, it remains a removal until completion, even if it is incorporated into the final permanent remedy.… Continue Reading

New York State Comptroller Sets Forth Options for Revitalizing State’s Brownfield Cleanup Programs

Posted in Development/Redevelopment
Late last month, New York State's Comptroller, Thomas P. DiNapoli, issued a report reviewing options for modifying the way the state incentivizes and administers cleanups of its thousands of remaining brownfield sites. The Report has special significance in light of Mr. DiNapoli's expertise in this area: he is a former Chair of the State Assembly's Environmental Conservation Committee and one of the architects of the state's Brownfield Cleanup Act, passed in 2003.… Continue Reading

New Report Considers Options For Tweaking Brownfields Programs in NY

Posted in Development/Redevelopment
New York State was among the first to enact programs aimed at remediation and redevelopment of contaminated sites. The goal of such programs is both to promote economic revitalization and to encourage private entities to remediate the state's contaminated sites. Three such programs, the Voluntary Cleanup Program ("VCP"), the Environmental Restoration Program (ERP), and the Brownfield Cleanup Program ("BCP"), have achieved considerable success, with over 400 sites having been remediated in the past two decades. Nevertheless, policy makers continue to search for ways to make these programs better and more cost efficient. Prompted by the impending expiration of key provisions of the BCP, a report released by the New York State Comptroller's office in April 2013, provides an assessment of these programs, as well as some options for improvement going forward.… Continue Reading

Vapor Intrusion Guidance Continues to Take Form With the Release of EPA’s Final Draft Guidance

Posted in Environmental & Green Issues
The United States Environmental Protection Agency ("EPA") recently released its long-awaited final vapor intrusion draft guidance ("Final VI Guidance"). The nearly 200-page document establishes a complex framework for assessing vapor intrusion from analyzing key factors; making risk management decisions; and implementing, monitoring and terminating mitigation strategies and is intended to be used at any site that is being evaluated under CERCLA, RCRA, EPA's brownfield grantees, or state agencies with delegated authority. The Final VI Guidance supercedes all prior EPA guidance documents addressing vapor intrusion assessment and mitigation including the 2002 Draft Vapor Intrusion Guidance, but takes into account the public comments submitted from 2002 through 2012 and the recommendations of the Office of Inspector General (OIG).… Continue Reading

Gibbons Director David Freeman Reelected President of the New York City Brownfield Partnership

Posted in Development/Redevelopment, Environmental & Green Issues
David J. Freeman, a Director in the Real Property & Environmental Department of Gibbons P.C., has been unanimously reelected to a second term as president of the New York City Brownfield Partnership, a public/private nonprofit organization dedicated to promoting the cleanup and redevelopment of brownfields in New York City.… Continue Reading

New York Court of Appeals Clarifies Relationship Between SEQRA and Brownfield Cleanup Act

Posted in Development/Redevelopment, Environmental & Green Issues
On October 23, 2012, the New York Court of Appeals handed down its decision in Bronx Committee for Toxic Free Schools v. New York City School Construction Authority. In it, the Court held that the public notice procedures that the School Construction Authority followed under the New York State Brownfield Cleanup Act (BCA) did not satisfy the related, but distinct public notice and comment obligations under the State Environmental Quality Review Act (SEQRA).… Continue Reading

Environmental Issues a Growing Concern for Companies

Posted in Environmental & Green Issues
As companies in the northeast region take advantage of an improving real estate market, in the face of aggressive agency enforcement, and complex environmental programs and policies, the need for environmental counsel to assist with transactions, navigate potential pitfalls, and mitigate future liability, has become essential. In a recent article published by The Metropolitan Corporate Counsel, three new Gibbons Directors - William Hatfield, Camille Otero, and David Freeman - discuss the firm's strategic decision to expand the practice group, the growth of the environmental law market, and how their experience can assist clients in this expanding field.… Continue Reading

Gibbons Real Property & Environmental Team Members Contribute Chapter in Brownfields Publication

Posted in Environmental & Green Issues
David A. Brooks and Paul M. Hauge, both members of the Gibbons Real Property & Environmental Department, contributed a chapter in Implementing Institutional Controls at Brownfields and Other Contaminated Sites. Edward F. McTiernan, Deputy Counsel with the New York Department of Environmental Conservation, co-authored the chapter with Mr. Brooks and Mr. Hauge.… Continue Reading
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