Category: Environmental and Green Issues

EPA Provides Guidance to BFPPs Regarding Their Ability to Receive Reimbursement from EPA Superfund Special Accounts

EPA Provides Guidance to BFPPs Regarding Their Ability to Receive Reimbursement from EPA Superfund Special Accounts

One underused provision in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) makes Environmental Protection Agency (EPA) Superfund Special Accounts available for reimbursement to Bona Fide Prospective Purchasers (BFPPs). This provision has received greater scrutiny by EPA following the creation of the Superfund Task Force (“Task Force”) in May 2017, and BFPPs should carefully consider the potential benefits that Superfund Special Accounts might provide. The Task Force includes senior representatives from different EPA Regional Offices with responsibility for Superfund policy and enforcement. EPA created the Task Force to streamline and strengthen the Superfund program. In July 2017, the Task Force issued a report containing five goals and 42 recommendations. The full report is available here. Goal number two in the report is to reinvigorate responsible party cleanup and reuse of Superfund sites. One of the specific recommendations relating to this goal is to maximize the use of special accounts to facilitate site cleanup and/or redevelopment. EPA has begun to implement this recommendation with the issuance of a March 27, 2018 memorandum to its Regional Offices entitled: “Guidance on Disbursement of Funds from EPA Special Accounts to Entities Performing CERCLA Response Actions.” The full memorandum is available here. On July...

N.J. Appellate Division: Both Parties Were Ineligible for Public Entity Cleanup Grant Where Private Party Conducting Remediation for County’s Benefit Was Not County’s Redeveloper or Agent

N.J. Appellate Division: Both Parties Were Ineligible for Public Entity Cleanup Grant Where Private Party Conducting Remediation for County’s Benefit Was Not County’s Redeveloper or Agent

For purposes of obtaining financial assistance from the State, cleaning up environmental contamination for a governmental body’s benefit is not the same as cleaning it up on behalf of the government as its formal designee. That is the hard lesson that a former landowner learned in the New Jersey Appellate Division’s August 29, 2018 decision in In re Hazardous Discharge Site Remediation Fund Public Entity Grant Application for Remedial Investigation and Remedial Action. When Barry Rosengarten contracted to sell a parcel of land in Perth Amboy to Middlesex County for use as open space, he agreed to remediate environmental contamination, and the County escrowed monies from the sale to be released to Mr. Rosengarten as he performed the cleanup. The County also agreed to cooperate in seeking State grants that could offset those costs and thus reduce Mr. Rosengarten’s net cleanup expenses. Through Mr. Rosengarten’s counsel, the County applied to the New Jersey Department of Environmental Protection (NJDEP) for either a Brownfield Development Area Grant or a 75% Recreation and Conservation Grant. NJDEP denied the application after finding that the County was not performing the cleanup and that the contract did not provide that Mr. Rosengarten was doing the work...

NYSDEC Adopts Update to SEQR Regulations

NYSDEC Adopts Update to SEQR Regulations

The New York State Department of Environmental Conservation (“DEC”) announced on June 28, 2018 that it had adopted a rulemaking package directed at updating its regulations relating to the State Environmental Quality Review (“SEQR”). The updates – DEC’s first to its SEQR regulations in more than two decades – are the product of an effort that began in February 2017 with the DEC’s filing of an initial notice and, following a series of public comment periods and subsequent revisions, culminated with its publication of the Final Generic Environmental Impact Statement (“FGEIS”) and revised text of the regulations. As revised, the regulations become effective on January 1, 2019 and apply to all actions for which a determination of significance has not been made by January 1, 2019. For projects that receive a determination of significance made prior to January 1, 2019, the existing SEQR regulations (which originally took effect in 1996) will continue to apply. Once effective, the revised regulations could have a significant impact on SEQR’s applicability to future development projects. The new regulations contemplate a number of mechanical changes to the environmental review process itself, including mandatory scoping of environmental impact statements, changes to the required content of environmental impact...

Superfund Task Force Listening Session on Recommendation 16-2, Part 2: Improving Implementation of Cleanup Agreements for Response Actions by PRPs

Superfund Task Force Listening Session on Recommendation 16-2, Part 2: Improving Implementation of Cleanup Agreements for Response Actions by PRPs

On June 18, 2018, the United States Environmental Protection Agency’s (“EPA”) held the last of eight listening sessions on the recommendations of its Superfund Task Force. This last listening session concerned Part 2 of Recommendation 16-2018, which calls for improvement in the process of implementing cleanup agreements under which potentially responsible parties (PRPs) commit to carry out site cleanups under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). EPA speakers included Ellen Stern (Office of Regional Counsel, Region 10), Ken Patterson (Office of Site Remediation Enforcement (OSRE), Douglas Dixon (OSRE), and Charles Howland (Office of Regional Counsel, Region 3). They noted a number of reasons for delays in the completion of cleanups under such agreements, ranging from the submission of multiple versions of the same deliverable and time-consuming dispute resolution procedures to lax (or, conversely, excessively stringent) enforcement of deadlines and imposition of stipulated penalties. They also acknowledged EPA’s reluctance to exercise its most extreme enforcement tool – taking over the work and using financial assurance established by the PRPs. Outside participants called on EPA to expand the number of PRPs that are called upon to perform cleanups (including municipalities) to reduce the financial burden on any one PRP. The Superfund...

Superfund Task Force Recommendation 23 Listening Session: Informing Parties About Streamlining the Cleanup and Redevelopment Process

Superfund Task Force Recommendation 23 Listening Session: Informing Parties About Streamlining the Cleanup and Redevelopment Process

The Environmental Protection Agency (“EPA”) held a listening session concerning the Superfund Task Force (“Task Force”) Recommendation 23 on June 13, 2018. Recommendation 23 focuses on tools designed to assist parties interested in redevelopment of contaminated sites. The EPA created the Task Force in May 2017, which is comprised of senior representatives from various EPA offices associated with Superfund policy and enforcement. The Task Force intends to streamline and strengthen the Superfund program. In July 2017, the Task Force issued a report containing five goals and 42 recommendations. The Task Force’s five goals are to: i) expedite the cleanup and remediation process; ii) reinvigorate responsible party cleanup and reuse; iii) encourage private investment; iv) promote development and community revitalization; and v) engage parties and stakeholders. The full report is available here. Phil Page from EPA’s Office of Site Remediation Enforcement, Policy, and Program Evaluation Division presented the listening session for Recommendation 23. The slide deck from the session is available here. Recommendation 23 aims to deliver an efficient and effective process to identify site-specific liability issues, to identify best manage practices to quickly respond to third-party concerns regarding liability, and to create a national team of redevelopment experts. Recommendation 23...

Superfund Task Force Listening Session on Recommendation 21: Encouraging PRPs to Integrate Reuse Opportunities into Cleanups

Superfund Task Force Listening Session on Recommendation 21: Encouraging PRPs to Integrate Reuse Opportunities into Cleanups

On June 11, the U.S. Environmental Protection Agency (EPA) held the fourth of its listening sessions on the recommendations of its Superfund Task Force to improve the implementation of the federal Superfund program. This session focused on Recommendation 21, which is to encourage Potentially Responsible Parties (PRPs) to integrate reuse opportunities into their cleanup plans. The EPA presenters began by providing the background of the Superfund Task Force Report and its five overall goals: (1) expediting cleanup and remediation; (2) reinvigorating PRP cleanup and reuse; (3) encouraging private investment; (4) promoting redevelopment and community revitalization; and (5) engaging partners and stake holders. The EPA presenters identified why PRPs may have an incentive for incorporating reuse into their cleanup plans. They also posed two questions: (1) why do PRPs not routinely consider re-use when performing site investigations and cleanups; and (2) what options and incentives can EPA use to assist PRPs in integrating re-use into their decision-making process? A copy of the slide presentation accompanying EPA’s oral presentations is available here. EPA then opened the floor for questions and comments from the participants in the listening session. There was only one comment made during the call: a lawyer from Northwestern Pritzker...

Superfund Task Force Listening Session – Exploring CERCLA Environmental Liability Transfer Approaches

Superfund Task Force Listening Session – Exploring CERCLA Environmental Liability Transfer Approaches

On June 5, 2018 the Superfund Task Force held another of its eight scheduled public listening sessions intended to solicit public and stakeholder input relating to recommendations contained in the Task Force’s July 2017 report. The listening session focused on Recommendation 22, which suggests exploring Environmental Liability Transfer (ELT) approaches and other risk management tools. While Recommendation 22 addresses a variety of risk management approaches Potentially Responsible Parties (PRPs) might use to transfer responsibilities, the listening session honed in on ELTs specifically. Participants in the listening session were able to follow along with a presentation from Greg Wall of OSRE’s Regional Support Division, Erik Hanselman of OSRE’s Policy and Program Evaluation Division, and Charlie Howland from the Region 3 Office of Regional Counsel, who described the general function of ELTs and offered details from two case-studies where ELTs were used effectively to spur cleanup by private parties at sites with unique challenges. As detailed by the presenters during the session, an ELT is a mechanism whereby PRPs contractually transfer their cleanup response obligations to a specialized third party for a negotiated price. The upside to the public of such arrangements is that they encourage cleanup by specialized private parties who are particularly...

Superfund Task Force Recommendation 27 Listening Session: New Tools to Encourage Private Investment in Cleaning Up and Reusing Superfund Sites

Superfund Task Force Recommendation 27 Listening Session: New Tools to Encourage Private Investment in Cleaning Up and Reusing Superfund Sites

The Environmental Protection Agency (EPA) held a listening session concerning the Superfund Task Force (“Task Force”) Recommendation 27 on June 5, 2018 focusing on new tools for reusing Superfund sites through private investment. The EPA created the Task Force in May 2017, and it is comprised of senior representatives from various EPA offices associated with Superfund policy and enforcement. The Task Force intends to streamline and strengthen the Superfund program. In July 2017, the Task Force issued a report containing five goals and forty-two recommendations. The Task Force’s five goals are to: i) expedite the cleanup and remediation process; ii) reinvigorate responsible party cleanup and reuse; iii) encourage private investment; iv) promote development and community revitalization; and v) engage parties and stakeholders. The full report is available here. Recommendation 27 seeks to implement some or all of the five goals by identifying tools for third parties interested in opportunities that support the cleanup or reuse of priority sites. EPA understands potential investors have concerns about uncertain liabilities, and looks to identify those specific concerns and to identify tools that may address such concerns. For example, the agency may determine standard language to include in agreements that would facilitate financing, and...

Superfund Task Force Holds First of Eight Listening Sessions for Stakeholders, Focused on Expediting Settlement Negotiations

Superfund Task Force Holds First of Eight Listening Sessions for Stakeholders, Focused on Expediting Settlement Negotiations

The Superfund Task Force, created in May 2017, issued a report in July 2017 proposing recommendations to streamline and strengthen the Superfund program. The Report contained five goals and 42 recommendations. In order to obtain input from stakeholders and the public and to increase transparency and improve communications, USEPA has convened eight listening sessions being held from May 21 to June 18, 2018. The Gibbons Environmental Department will be covering these listening sessions and blogging about them. The first listening session, which focused on expediting settlement negotiations, was held on May 21, 2018. The five goals of the Superfund Task Force Report are: (1) expediting cleanup and remediation process, (2) reinvigorating responsible party cleanup and reuse, (3) encouraging private investment, (4) promoting redevelopment and community revitalization, and (5) engaging partners and stakeholders. The first listening session focused on Goal 2 through the strategy of encouraging responsible party clean-up with expedited negotiations. Christina Skaar from OSRE’s Regional Support Division and Elizabeth McKenna, Region 10 Office of Regional Counsel, made a short presentation at the beginning of the listening session. Recommendation 16.2 covers strategies to focus on and decrease the time involved in negotiating cleanup agreements and implementing cleanup work once agreement is finalized. Ms....

Budget Act Makes Changes to Federal Brownfield Program

Budget Act Makes Changes to Federal Brownfield Program

As noted in last week’s blog, the recently-passed Consolidated Omnibus Appropriations Act made a number of modifications to the federal brownfield program. That blog focused on the expansion of lessees’ ability to qualify for Bona Fide Prospective Purchaser (BFPP) status (and thereby obtain protection from Superfund liability). However, the Act made other changes that are of interest to brownfield site owners, developers, states, municipalities, and potential applicants for federal brownfield grant money. These modifications are found in Division N of the legislation, entitled “the Brownfields Utilization, Investment, and Local Development Act of 2018” (“BUILD Act”). They include the following: eliminating state and local government Superfund liability for sites acquired through seizure or otherwise in connection with law enforcement activity. State and local governments were previously protected only with respect to sites acquired “involuntarily”; eliminating the restriction for grants to petroleum sites that a site must be “relatively low risk” as compared with other petroleum-only sites in a state; allowing grants to be used for the cleanup of publicly-owned properties even if the public owner is not a BFPP; increasing the maximum federal brownfield grant per site from $200,000 to $500,000, which limit can be waived by EPA up to a...