Gibbons Law Alert

Gibbons Law Alert

Author: David J. Freeman

New York State Brownfield Cleanup Act Reform: The Saga Continues

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Posted in Environmental and Green Issues

On April 21, 2014

New York State Brownfield Act reform did not survive the crush of last-minute negotiations over the State’s 2014-15 budget. The Governor’s office, the Senate, and Assembly each introduced their own proposals for accomplishing needed reforms but were not able to reach consensus on a path forward. The attached article reviews the differences among the Governor’s, the Senate’s and the Assembly’s proposals on such key issues as: extending the expiration date for brownfield tax credits; revising the definition of “brownfield site”; restricting tangible property tax credits; redefining costs eligible for tax credit treatment; and establishing a new, streamlined program for sites not seeking tax credits.

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

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Posted in Environmental and Green Issues

On February 3, 2014

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.

Cuomo Budget Proposals Seek to Revise NY State Brownfield Cleanup Program

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Posted in Environmental and Green Issues

On January 30, 2014

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.

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

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Posted in Environmental and Green Issues

On January 17, 2014

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.

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

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Posted in Development/Redevelopment

On May 13, 2013

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.

District Court Decision Provides Further Guidance on Scope of “Arranger” Liability Under Superfund

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Posted in Environmental and Green Issues

On February 15, 2013

The U.S. Supreme Court’s decision on “arranger liability” under Superfund in Burlington Northern & Santa Fe Ry. Co. v United States continues to reverberate. The most recent manifestation is a January 31, 2013, decision by the U.S. District Court for the Eastern District of North Carolina in Carolina Power & Light Co. v. Alcan Aluminum Corp. In that decision, the Court granted summary judgment to Georgia Power Co. on the basis that its sale of used transformers to the operator of the Ward Transformer Superfund Site (Site) did not amount to an “arrangement for disposal.” In examining the “fact-specific circumstances,” the Court determined that the evidence established that these transactions were sales of a “useful product” rather than ones with an intent to dispose of a hazardous substance.

New York State Again Defers Decisions Regarding Hydraulic Fracturing

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Posted in Environmental and Green Issues

On December 21, 2012

On November 28, 2012, New York State confirmed that its health assessment of the proposed regulations governing hydraulic fracturing, also known as “fracking,” being conducted by a panel of three leading public health experts, would be delayed. Immediately thereafter, the State’s Department of Environmental Conservation (“NYSDEC”) filed for a 90-day extension of the November 29, 2012, regulatory deadline for finalizing fracking regulations.

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

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Posted in Development/Redevelopment / Environmental and Green Issues

On November 20, 2012

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).

NY Court Denies Summary Judgment in Seemingly Clear-Cut Case Under NY Navigation Law

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Posted in Environmental and Green Issues

On August 6, 2012

An upstate Supreme Court Justice has denied summary judgment on liability under Section 181 of the state’s Navigation Law against a company whose predecessor owned and operated a petroleum refinery on the site for almost 60 years. The decision in One Flint Street LLC v. Exxon Mobil Corp, et al., Index No. 2011/4470 (July 18, 2012, Monroe Co. Sup. Ct.) establishes a high bar for obtaining summary judgment in Nav Law cases.

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