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New York Environmental Law Blog

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).

Publicly Owned Sewer Systems Now Required To Report and Notify Of Combined Sewer Overflows

In 2012, the Sewer Pollution Right to Know Act (SPRTKA) was signed into law in New York State. This law requires that owners of publicly owned sewer systems (POSSs) advise the public when raw or partially treated sewage, including combined sewer overflows (CSOs), is discharged into New York's waterways. On November 9 2016, the Department of Environmental Conservation's (DEC) regulations implementing the SPRTKA took effect.

Two Decades Later, New York Proposes First Major Amendments to the State Environmental Quality Review Act (SEQRA)

On January 17, 2017, the New York State Department of Environmental Conservation (DEC) released proposed amendments to SEQRA - the department's first major revisions to such regulations in more than two decades. The proposed amendments follow recent efforts by the DEC to modernize SEQRA and are intended to streamline the process by, among other things, new environmental assessment forms along with the creation of workbooks and a spatial data platform on DEC's website (EAF Mapper). According to the DEC, the EAF Mapper "enables users in performing environmental assessments to access the same geographic information relied on by DEC staff.expanding the list of Type II actions that are not subject to SEQRA review."

City Council Members Seek to Redefine "Reside" in Local Lead Paint Law

New York City's lead-based paint law (Local Law 1 [1982]) requires landlords to remove lead-based paint in any apartment unit in which a child under 6 years of age resides. The issue in Yaniveth R. v. LTD Realty Co. was whether a child "resides" in an apartment containing lead-based paint when the child does not live in the apartment but spends approximately 50 hours per week there with a caregiver. The child, who was found to have elevated blood lead level at the age of one lived with her parents but usually stayed with her maternal grandmother five days per week while her parents were at work and did so since she was three months old.

Split Second Circuit Panel Invokes Chevron Doctrine, Reverses Southern District and Reinstates EPA's Water Transfers Rule

In a 2-1 ruling, the Second Circuit reversed Southern District Judge Kenneth Karas, who had found that the U.S. Environmental Protection Agency's (EPA) "Water Transfers Rule" was an unreasonable interpretation of the Clean Water Act. Writing for the majority and leaning on the EPA's reasoning, Circuit Judge Robert Sack wrote that the "Water Transfers Rule is based on a reasonable interpretation of the Clean Water Act and therefore entitled to Chevron deference."

Basics of the "Oil Spill Act," Article 12 of the New York Navigation Law

New York's Oil Spill Act, Article 12 of the New York Navigation Law, assigns strict liability to any person who has discharged petroleum, for all cleanup and removal costs associated with the cleanup of the petroleum, as well as all direct and indirect damages, such as attorney's fees. N.Y. Navigation Law (1). A discharge of petroleum, sufficient to incur liability under the Oil Spill Act, includes any intentional or unintentional action or omission resulting in a release of petroleum into water, or into soil from which the petroleum could flow or drain into water. NL 172(8). New York generally interprets any and all spills of petroleum onto soil as falling within the jurisdiction of the Oil Spill Act, without any demonstration that the petroleum will actually find its way to the waters nominally protected by the Act.

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