Leaking Underground Storage Tank Trust Fund: Petroleum Marketers Association of America (and Other Groups) June 16th Letter to House Committee on Appropriations Addressing Funding

Mitchell Williams Selig Gates & Woodyard PLLC
Walter Wright

July 5, 2017

The Petroleum Marketers Association of America along with the National Association of Convenience Stores, National Association of Truck Stop Operators, and Society of Independent Gasoline Marketers of America (collectively “PMAA”) sent a June 16th letter to the Chairman and Ranking Member of the United States House of Representatives Committee on Appropriations addressing the federal Leaking Underground Storage Tank Trust Fund (“LUST Fund”).

The focus of the joint letter was opposition to the President’s FY 2018 budget request of $47 million for the LUST Fund arguing the amount is inadequate.

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Department of Justice Ends Controversial Third-Party Settlement Practice—What Will It Mean for Supplemental Environmental Projects?

Taft Stettinius & Hollister LLP
Will Gardner and Kimberly S. Lewis

July 6, 2017

On June 7, U.S. Attorney General Jeff Sessions issued a memorandum prohibiting the Department of Justice (“DOJ”) and the 94 U.S. attorney’s offices from entering into settlement agreements that provide for payment to a nongovernmental, third party that was not directly harmed by the conduct at issue. Settlement payments to third-party, non-governmental organizations (“NGO”) became commonplace during the Obama administration, with millions of dollars in settlement payments going to NGOs.

Third-party payments were used in a number of the Obama administration’s most high-profile settlements, including, the BP plea agreement regarding Deep Water Horizon ($350 million to the National Academy of Sciences), the mortgage lending settlements with JP Morgan, Citi and Bank of America (millions of dollars to NeighborWorks America and others), and the settlement with Volkswagen regarding vehicle emission testing ($2 billion in settlement payments for investment in zero-emission vehicle infrastructure, such as electric charging stations, to benefit both the public and various NGOs).

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NYSDEC Set to Propose Revisions to the Brownfield Cleanup Program: A Preview of Changes

Phillips Lytle LLP
Laura L. Mona

June 30, 2017

A preview of at least some of the proposed revisions to the New York State Department of Environmental Conservation’s (“NYSDEC”) regulations for the Brownfield Cleanup Program (“BCP”) (6 N.Y.C.R.R. Part 375) was revealed in May 2017, with official release anticipated later this year. Key changes are expected to include new program and tax credit eligibility requirements as well as clarifications to aspects of program implementation, all in an effort to provide more consistency across remedial programs and to generally update the BCP, now over a decade old. To what extent the revisions will provide clarity to BCP applicants remains to be seen once the changes are officially published. However, the preview reveals there is likely to be more questions and concerns than answers.

New eligibility requirements will likely include a formalized obligation for BCP applicants to conduct a search for potentially responsible parties (“PRPs”) before the application will be deemed complete. The scope and extent of PRP searches are expected to be outlined in the proposed regulations and will likely warrant close review as PRP searches can be time-consuming and costly.

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CERCLA Due Diligence Requirements Revised to Reflect Updated Phase I Standard for Forested and Rural Land

Spencer Fane LLP
Paul Jacobson

July 11, 2017

Purchasers of rural and forested land need to be aware of a recent change in EPA’s environmental due diligence rules. On June 20, 2017, EPA published a Direct Final Rule in the Federal Register, amending the All Appropriate Inquiries (AAI) Rule, 40 CFR Part 312, to reflect 2016 updates to ASTM E2247, a standard for Phase I investigations on rural and forested land. The AAI Rule sets forth requisite practices for satisfying CERCLA § 101(35)(B) so as to obtain CERCLA liability relief, i.e. the innocent landowner defense, bona fide prospective purchaser liability protection, and contiguous property owner liability protection. The AAI requirements also apply when conducting site characterizations and assessments with the use of a Brownfields grant, under CERCLA § 104(k)(2)(B).

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