Same Tune, New Steps: Dancing Through U.S. EPA’s Update to its Policy on Supplemental Environmental Projects

Barnes & Thornburg LLP
Charles M Denton, E. Sean Griggs, Jeffrey S. Longsworth, Robert A Weinstock and Bruce White

April 9, 2015

Settling federal environmental enforcement actions is one of the most important environmental legal challenges faced by regulated entities, be they multi-national corporations, small family businesses, public institutions, individuals, or municipalities. Regulated entities seeking amicable and optimal settlements with the U.S. Environmental Protection Agency (EPA) and Department of Justice (DOJ) must navigate complex substantive and procedural issues, negotiate stipulated penalties, monetary penalties, response costs and damages, and injunctive relief, and always account for financial assurance, insurance, monitoring, potential third-party claims, and other requirements that structure the parties’ post-settlement relationship. In short, the dance steps are multifarious and multifaceted – and your dance partner may not always appear to be the most coordinated or cooperative.

That said, one particular corner of federal environmental enforcement policy provides an opportunity to generate ‘win-win’ components of a settlement and create real environmental value for affected communities – Supplemental Environmental Projects (SEPs).

Continue Reading

New York Lawmakers Agree on 10-Year Extension of Brownfield Law

Greenberg Traurig, LLP
Steven C. Russo, Robert M. Rosenthal

April 1, 2015

Changes to Tax Credits are Less Drastic than Previously Anticipated

In a departure from his budget proposal, the Legislature negotiated changes with the Governor to extend the tax credits for New York’s Brownfield Cleanup Program (BCP) with relatively modest changes to BCP eligibility requirements. The Governor’s budget proposal would have limited the lucrative “tangible property” tax credit, which is the credit based on a percentage of the cost of constructing a new development on a Brownfield site, to (i) properties located in an environmental zone, (ii) properties to be utilized for affordable housing, or (iii) “upside down” properties – where the remediation of the property is projected to cost more than the value of the remediated property. Under the bill agreed to with the Legislature, however, those limits (with modifications) will apply only to properties located in New York City. In other words, outside of New York City, eligibility for the tangible property tax credit will remain available to all developers that otherwise qualify under the BCP, as per existing law.

Continue Reading

Don’t Skip the Credits: The Oft-Overlooked Importance of Air Emission Credits in Mergers and Acquisitions

Latham & Watkins LLP
Michael Scott Feeley and Aron Potash

March 26, 2015

There is no shortage of environmental matters to navigate when buying a company or facility.  Environmental counsel must first lead a diligence effort that delineates the target’s environmental footprint and then suss out the environmental risks and liabilities attendant to the deal.  This diligence process often involves Phase I environmental site assessments, environmental, health and safety compliance evaluations, interviews of target personnel, and review of seller-provided permits, reports, and other documentation.  The knowledge gained from the diligence process feeds into negotiation of purchase agreement terms, including the purchase price, environmental representations, warranties and covenants, corresponding definitions and indemnification provisions, disclosure schedules, and permit transfer provisions.  Myriad environmental matters must be addressed, including compliance with environmental laws, the release of hazardous substances, the presence and validity of environmental permits, ongoing environmental litigation or the possibility of it, and health and safety matters.

One issue that all too frequently gets lost in the shuffle during the diligence and purchase agreement negotiation process is the evaluation of whether air emission credits are necessary to run the business, and if so, how these credits will be treated in the deal documents.  Air emission credits take many shapes and forms but, at bottom, are governmentally issued or approved authorizations to emit air contaminants.

Continue Reading

Dirty Dirt, Developing State Soil Reuse Regulation

The McLane Law Firm
Gregory H. Smith

April 13, 2015

Originally published by the American College of Environmental Lawyers

Those who have tried to keep up with the development of environmental law into the second decade of the 21st century will not be surprised, as others may be, by the attention now focused on reuse of soil. Uncounted millions of cubic yards of soil are moved each year in the New England region alone. Until very recently, in the absence of contamination above regulatory remediation standards, the excavation and reuse of soils was not subject to any environmental regulation at all.

Now with the pace of national economic activity rising, soil reuse is drawing the focused attention of State regulators in the northeast region and across the nation.  EBC Nov 6, 2014 program. In particular, New Hampshire, Massachusetts, Connecticut and Vermont are all currently considering how to regulate soil reuse. In 2014, Massachusetts adopted a requirement for the development of a soil reuse policy by June 2015 and that effort is well underway.

Continue Reading