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).
After settling with EPA and having its settlement upheld in court, a potentially responsible party (PRP) is free from liability to all other PRPs given notice of that proposed settlement under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, or Superfund). This principle, long recognized as key to CERCLA's successful performance, was recently affirmed by the United States Court of Appeals for the Eighth Circuit in its ASARCO, LLC v. Union Pacific Railroad Company decision.
New Yorkers like to think their city is the biggest and baddest, and now there's another reason for those sobriquets: last month, the former Wolff-Alport Chemical Company site - less than 1,000 feet from a public middle school and a private day care center- earned the title of most radioactive site in New York City today, and became the second radioactive site in New York City in the Superfund program's history. On May 8, 2014, EPA listed the 3/4-acre property located at Irving Avenue and Cooper Avenue in Ridgewood, Queens, as a federal Superfund site. This is the third active federal Superfund site in New York City.
In a triumph of environmental responsibility and justice over corporate attempts to disclaim environmental liabilities, the former Kerr-McGee Corporation has been ordered to clean up after itself.
In 2003, the New York Legislature passed the Brownfield Cleanup Program, ECL § 27-1401 et seq. The benefits of the Brownfield Cleanup Program ("BCP") are many: the developer receives a liability release from the State following DEC oversight during the cleanup of the property. The most coveted benefit, however, is a tax credit of up to 22% based not merely on the cost of cleanup but also on the cost to redevelop the site. A few New York City developers have reaped enormous rewards on $100+ million developments.