Real Property & Environmental Law Alert Blog

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....

Howard Geneslaw Argues Before NJ Supreme Court in Dunbar Homes on Behalf of NJ State Bar Association

Howard Geneslaw Argues Before NJ Supreme Court in Dunbar Homes on Behalf of NJ State Bar Association

On Monday, April 9, 2018, Howard D. Geneslaw, a Director in the Gibbons Real Property Department, argued before the Supreme Court of New Jersey on behalf of the New Jersey State Bar Association (“NJSBA”) as an amicus curiae in the matter of Dunbar Homes, Inc. v. Zoning Board of Adjustment of the Township of Franklin. The NJSBA was one of several amici involved in this case of first impression on the key question of when a submission to a municipal planning board is considered an “application for development” for purposes of being afforded protection under the “time of application” rule. The “time of application” rule provides that the zoning regulations which govern the review of an application for development are those in effect at the time it is submitted. The issue to be decided by the New Jersey Supreme Court centers on what constitutes submission of an application for development which allows the applicant to invoke the protection of the “time of application” rule. The Appellate Division, in a reported decision, ruled that protection is not available until an applicant submits all documents specified in the municipality’s application checklist adopted by ordinance, although the application need not have been deemed...

Howard Geneslaw to Speak at NJSBA Webinar

Howard Geneslaw to Speak at NJSBA Webinar

Howard D. Geneslaw, a Director in the Gibbons Real Property Department, will participate in an upcoming webinar entitled “Advanced Topics in Land Use IV: Zoning and Planning Boards.” The webinar is presented by the New Jersey State Bar Association (NJSBA) and co-sponsored by the NJSBA Land Use Law Section and will be held on April 25 from 12:00 – 1:40 p.m. This is the fourth webinar in the NJSBA’s ongoing series featuring discussions about a variety of current zoning trends. Mr. Geneslaw’s topic is “Case Law Developments in Bad Faith Objections to Land Use Applications – Has the Judicial Tide Turned on Objections Asserted by Business Competitors?” In addition to Mr. Geneslaw, panelists will include Richard S. Schkolnick, Esq. (moderator), Brown Moskowitz & Kallen, PC; Gary S. Forshner, Esq., Greenbaum Rowe Smith & Davis, LLP; Donna M. Jennings, Esq., Wilentz Goldman & Spitzer, PA; Kenneth A. Porro, Esq., Chasan Lamparello Mallon & Cappuzzo, PC; and William C. Sullivan Jr., Esq., Scarinci & Hollenbeck. For a detailed agenda or to register, click here.

Update: U.S. Treasury Approves New Jersey’s Opportunity Zones

Update: U.S. Treasury Approves New Jersey’s Opportunity Zones

This article was originally posted on the Gibbons Government & Regulatory Affairs Alert, maintained by the firm’s Government & Regulatory Affairs Department. Attorneys in the Real Property Department work closely with our government and regulatory affairs attorneys in connection with this and similar legislation, grants, funding, and other economic development and redevelopment opportunities. Douglas J. Janacek is Chair of the Gibbons Real Property Department.

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...

Federal Budget Act Expands Lessees’ Ability to Claim Superfund Exemption as Bona Fide Prospective Purchasers

Federal Budget Act Expands Lessees’ Ability to Claim Superfund Exemption as Bona Fide Prospective Purchasers

The recently-enacted Consolidated Omnibus Appropriations Act made headlines in extending funding for federal government programs through September 30, 2018. Less widely noted were the myriad changes wrought by the Act to the administration of many federal programs. Among the programs affected was the federal brownfields program. The major substantive change in the Act was the expansion of the Bona Fide Potential Purchaser (BFPP) protection for lessees of properties. BFPP status exempts from Superfund liability parties who become owners or operators of facilities after the discharge of contaminants, so long as they are unrelated to parties responsible for the discharge, conduct “all appropriate inquiries” (e.g., a Phase I environmental site assessment) prior to closing, and observe certain other protocols post-closing. Until now, lessees were precluded from qualifying as a BFPP unless the property owner was also a BFPP. Now, if a lessee performs the required actions, it can obtain BFPP protection irrespective of whether its landlord is similarly exempted. This change will have a major impact on the liability exposure of lessees, particularly those who are developing and operating properties under long term ground leases. Most of the Act’s other brownfield-related provisions concern the funding of federal brownfield grants. Non-profit organizations are now...