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New York Environmental Law Blog

New York State DEC Issues New General Permit for Stormwater Discharges from Industrial Activities

Do you own or operate a facility in New York that discharges stormwater? If so, be aware that as of October 1, 2017, the New York State Department of Environmental Conservation (DEC) issued a new Multi-Sector General Permit (MSGP) scheme for Stormwater Discharges Associated with Industrial Activity (GP-0-17-004). This new MSGP will be in effect for the next 5 years. Requirements under the permit regulations include monitoring, recording, reporting, and compliance responsibilities for stormwater discharges from covered facilities.

New York City Will Make It Easier to Remove "E" Designations From Properties Identified As Such In the Zoning Maps

Every once in a while, government agencies actually make things easier or more efficient for the general public. In the case of contaminated properties, New York City is helping potential property developers. Recently, the New York City Department of Environmental Protection (DEP) and the Office of Environmental Remediation (OER) adopted amendments to the rules addressing the removal of "E"-designations on zoning maps for affected properties.

The Most Effective Way To Amass Penalties For Violating Environmental Regulations (And How To Ensure It Does Not Happen To You)

Some incredible lapse of judgment (or reasonableness) must occur for an individual to accumulate $200 million dollars' (!) worth of potential environmental violations. And, of course, that is that happened with an auto repair facility in Northumberland Township.

On July 24, 2017, the New York State Department of Environmental Conservation (DEC) determined that Bissco Holding, Inc. and its CEO in his personal capacity, committed multiple violations of New York's Environmental Conservation Law (ECL) from operations at the company's auto repair shop. The DEC also determined that Bissco Holding and its CEO were jointly and severally liable (meaning each party could be responsible for fully responsible) for the ECL violations, which totaled $122,250. However, the maximum statutory penalty in this proceeding could have exceeded have $200 million dollars.

Federal Court Rules That Rensselaer Pond Is Not A "Water Of The United States" And Thus Not Subject To The Clean Water Act

Why is it important to hire experts, even on things that seem rather "obvious"?

When it comes to litigation, lay persons should not rely on their own observations and beliefs when it comes to scientific or technical matters that experts should address. The Zdziebloskis learned this the hard way when they unsuccessfully attempted to convince a New York federal court about the underground seepage of pond water from their property.

Supreme Court May Determine When Tenants Are Subject to "Ownership Liability" Under CERCLA

When is a tenant liable as an owner under the federal Superfund law (aka CERCLA)?

Right now, the answer depends on which federal court hears your case. There appears to be a big difference of opinions between the 9th and 2nd Federal Appellate Circuits: the 9th Circuit (California and surrounding states) follows a "common law" standard to determining CERCLA ownership liability (typically looking at whether the tenant exercised operation and control over the land); while the 2nd Circuit (New York, surrounding states, Puerto Rico and the U.S. Virgin Islands) has rejected the common law standard and instead follows a separate "ownership test" (looking beyond just operation or site control and instead focusing on whether the tenant exercised sufficient "attributes of ownership" to be held responsible as the owner). Litigants from New York, which sits in the 2nd Circuit, have asked the U.S. Supreme Court to intervene and resolve this confusion.

New York Proposes New Perchloroethylene (PERC) Regulations For Dry Cleaners

Major changes are coming to the dry cleaning industry in New York.

Business owners and managers must become familiar with these new round of proposed NY State Department of Environmental Conservation (DEC) regulations that will likely impose significant financial and management costs on some dry cleaning businesses.

Contract Terms Have Specific, Carefully Defined Meanings, and are Not Ambiguous, and so Extrinsic and Parol Evidence to be Excluded, and Buyer of Kalamazoo Coating Resin Business Must Remediate Site

A recent federal case in New York was a reminder that in contract litigation, the parties should be careful what they claim about how "unambiguous" a contract provision assigning environmental liabilities, as elsewhere, and that in contract drafting, even apparently simple phrases have certain meanings and not others. The indirect lesson is that business people should not assume that environmental and real estate lawyers' insistence on the use of very specific terms in contracts is more academic than practical and serves no useful purpose. Indeed, the care with which such terms were defined and used provided the winning margin for Cytec Industries (Cytec).

Insurance pollution exclusion: entire pollution claim denied under exclusion, even if one of the sources of contamination was eligible for coverage

Does a pollution exclusion clause that bars coverage under an indemnification provision in an insurance policy as to one of the sources of contamination also bar coverage that should apply to another source of the same contamination that is not by itself excluded from coverage under that exclusion?

Second Circuit: Late Notice To Insurer Bars Coverage For Environmental Claims

How important is it that timely notice of an environmental claim be given to your insurance carrier? And just what is "timely"?

In Oil Spill Case, Common Law Negligence Claim Against Insurer Not Time-Barred Despite Policy

Sometimes simple common law principles are the best way to litigate against insurance companies. Specifically, if the insurance policy calls for a two-year limitations period to sue, make sure your attorney alleges common law negligence against the insurance carrier if you want the benefit of the longer, three-year, statute of limitations period (assuming the facts support a negligence claim, of course).

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