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Key Limits Imposed on State Authority to Order RCRA Corrective Action Under a Treatment, Storage or Disposal Facility Permit

Can a party who is not the holder of a certain environmental permit be required to perform the obligations set out in that permit? The New York State Department of Environmental Conservation thought so, and argued as much in the case of a property owner who had purchased land where a hazardous waste storage facility had operated years earlier. The purchaser, Thompson Corners, LLC, had never held a permit to operate the facility, which had closed years before the purchase, and was never required to obtain one. 

A.G. Scheiderman and Assemblyman Sweeney Announce Legislation to Curb Pint Sized Pollutant that Poses Big Problem for New York

Perhaps you've heard of the "Great Pacific Garbage Patch," a "plastic soup" of floating waste in the Pacific purportedly twice the size of the United States, but did you know that similar plastic pollution has been documented throughout the Great Lakes? Attorney General Eric Schneiderman and Assemblyman Robert Sweeney have recognized the threat that this pollution poses to human health, and have recently announced legislation that could speed significant changes in the plastics industry and stop the pollution at its source-your bathroom sink. Unlike in the Great Pacific Garbage Patch, the culprit in the Great Lakes is not necessarily dumping, but rather the ubiquitous plastic abrasives found in hundreds of common personal care products. Known as "microbeads," these tiny plastic particles are found in everything from cosmetics to toothpaste. They get washed down the drain your bathroom sink, and float untreated through sewage treatment plants into lakes and streams. Once in the environment, they can accumulate and concentrate PCBs and other persistent toxic chemicals that are present in New York's waters as a legacy of the state's industrial past. 

EPA Excludes Certain Solvent-Contaminated Rags from RCRA Regulation

In a move that has made industry insiders "ecstatic," EPA Administrator Gina McCarthy signed a final rule on July 22, 2013 which will exclude certain solvent-contaminated industrial rags or wipes from regulation under the federal Resource Conservation and Recovery Act. The new rule excludes solvent-contaminated reusable wipes from regulation as solid waste (40 CFR 261.4(a)), and excludes solvent-contaminated disposable wipes from regulation as hazardous waste (40 CFR 261.4(b)(18)) under RCRA.

When Does the Discovery of Historic Contamination Qualify as a "Sudden and Accidental" Release?

Many insurance policies contain a "pollution exclusion" which seeks to exclude coverage for losses arising from pollution, except in the case of a "sudden and accidental" release. "Sudden and accidental" may bring to mind a burst pipe or overturned tanker truck, but a recent decision in the United States District Court for the Southern District of New York suggests that the interpretation can be much more complicated.

Can Entering Into a CERCLA Consent Decree Preclude Subsequent Cost Recovery Actions?

Congress enacted the Superfund Act, whose formal name is the Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA, in 1980 to promote the clean up (remediation) of properties, typically abandoned landfills or other sites, that had been contaminated by the disposal of hazardous materials. To further this goal, Congress cast a wide net and imposed strict liability for all "Potentially Responsible Parties" (PRPs) who contributed to the contamination at a site. See 42 USCS Sec. 9607(a). 

DEC Did Not Act Outside of Its Authority in Promulgating Regulations that Required Cleanup of Contaminated Properties to "Pre-Disposal Conditions" under the State Inactive Hazardous Waste Disposal Site Act

The Court of Appeals of New York recently held that the New York State Department of Environmental Conservation ("DEC") did not exceed its authority or act contrary to state law in enacting certain regulations with respect to remedial programs implemented to clean inactive hazardous waste disposal sites. 

Failure to Specify Specific Contaminant in Notice of Intent to Sue Kills RCRA Claims

The Second Circuit Court of Appeals threw out two claims under RCRA for failure to specify the specific contaminants alleged to cause the complained-of harm in the Notice of Intent to Sue.

No Hazardous Substances

This most common of representations and warranties is most often abused. Buyer or tender may initially want a flat representation that there are not now and never have been any Hazardous Materials on the premises or any operations that generate, use, treat, store, or dispose of Hazardous Materials. Difficulties that immediately arise include the length of time this representation will reach back, the de minimis without a qualifier based on the best knowledge. 

Term Definition: Environmental Requirements

Environmental Requirements: Traditionally the term used is "Environmental Law," but "Requirements" is more accurate as the definition goes beyond statutes and regulations.

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