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Governor Cuomo Vetoes Brownfields LegislationJanuary 16, 2015

On December 29, 2014, Governor Andrew Cuomo vetoed a bill that would have extended the expiration of the Brownfield Cleanup Program from December 31, 2015 to March 31, 2017.  Earlier in 2014, the Governor and legislature tried to reach an agreement to reform the program.  When that failed, the legislature passed a bill, which would extend the expiration date of the program.  Governor Cuomo announced that since the budget for 2014-15 had already been passed and there were not monies included to fund this measure, he was vetoing it.  He further announced that he would again attempt to reform the program to include it in the 2015-16 budget.

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New York Legislature Extends Brownfields Cleanup LawJune 27, 2014

The New York Legislature passed a bill, which would extend the Brownfields cleanup program until March 31, 2017. The law is set to expire in 2015.  The Governor and legislature had hoped to pass comprehensive reform of the Brownfields program, which provides tax credits for the cleanup of certain contaminated properties to stimulate redevelopment.  When it became clear that reform would not get accomplished during this session, the Legislature sought a stopgap measure.  The Governor still needs to sign the Legislation into law.

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Proposed New Legislation Would Expand the Brownfields Cleanup ProgramMarch 18, 2013

Senator Frank Lautenberg of New Jersey recently co-sponsored legislation to authorize $250 million per year to expand the Brownfields Cleanup Program through 2016. As provided by Senator Lautenberg: the Brownfields Utilization, Investment, and Local Development (BUILD) ACT of 2013 would improve the existing grant process by increasing the limit for cleanup grants and expanding grant liability for certain publicly owned sited and non-profit organizations. The bill would authorize the Environmental Protection Agency (EPA) to make multi-purpose grants, which provide greater certainty for long-term project financing. In addition, the legislation identifies opportunities for waterfront properties and brownfield sites appropriate for clean energy development, allows grant recipients to collect administrative costs, and provides technical assistance to small, rural, and disadvantaged communities.

Senators James Inhofe, Tom Udall, and Michael Crap co-sponsored the bipartisan bill. Through the Brownfields Program, the EPA has provided approximately $1.5 billion in grants, which have leveraged $19.2 billion in additional investment. The Brownfields Program has assessed more than 20,000 properties and created more than 86,000 jobs nationwide. The EPA estimates that there are approximately 450,000 brownfields sites in the United States. The New Jersey Department of Environmental Protection estimates there are 10,000 brownfields sites in New Jersey.

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ASTM Issues New Guidance to Comply with CERCLA Continuing ObligationsMarch 8, 2012

ASTM International, Inc. has released guidance ASTM E2790-11 to provide procedures to assist users to satisfy continuing obligations applicable to the innocent landowners, the contiguous property owner (CPO), and the bona fide prospective purchaser (BFPP) protections from CERCLA liability (collectively referred to as the "Landowner Liability Protections," or "LLP"). This guidance presumes that a valid phase l or another report that satisfies the "all appropriate inquiries" test has been conducted at the property.

This guidance is intended to cover properties where chemicals of concern are known to have been (1) released on the property prior to acquisition by the current property owner, (2) are present at the property after acquisition by the current property owner due to migration from neighboring property, or (3) are discovered after property transfer where the Phase l (or other "all appropriate inquiries" document) provided no reason to know of the presence of chemicals of concern prior to transfer.

The continuing obligations and requirements set forth in the Brownfields Amendments to CERCLA include: (1) complying with any land use restrictions established or relied upon in connection with a response action at a property; (2) not impeding the effectiveness or integrity of any institutional controls employed at a property in connection with a response actions; (3) taking reasonable steps with respect to releases of hazardous substances, including stopping continuing releases, preventing threatened future releases, and preventing or limiting human, environmental or natural resource exposure to prior releases of hazardous substances; (4) providing full cooperation, assistance and access to persons who are authorized to conduct response actions or natural resource restoration at a property; (5) complying with information requests and administrative subpoenas; and (6) providing legally required notices with respect to releases of any hazardous substances at a property. There are additional "continuing obligations" under CERCLA such as legally required notices, allowing access and coooperating with governmental regulators, which are not part of this guidance.

The ASTM Guidance sets forth the following steps for compliance:

(1) Review the Phase l to determine whether continuing obligations apply. If they do not, prepare a statement of no continuing obligations.

(2) If the property is subject to continuing obligations, a review and evaluation of the environmental conditions and the activity and use limitations at the property must be conducted.

(3) An evaluation must be made as to whether institutional controls, land use restrictions and/pr recognized environmental conditions exist at the property.

(4) If the answer to (3) is yes, then continuing obligations must be performed. The continuing obligations plan must be prepared and any initial continuing obligations executed.

(5) Perform continuing obligations.

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First Municipal Brownfield Cleanup Program in the Nation Established in New York CityFriday, February 18, 2011

In August of 2010, Mayor Michael Bloomberg and the New York City Mayor's Office of Environmental Remediation (OER) commenced the first municipal Brownfields program in the nation. The New York City Brownfield Cleanup Program (NYC BCP) is designed to help land owners and developers clean up and redevelop abandoned or contaminated property in New York City. In 2003, New York State enacted its Brownfields Cleanup Program, but use of this program has been slow and there is uncertainty related to eligibility and to the benefits for developers from the state's program.

The NYC BCP attempts to make eligibility criteria more clear and more inclusive. The NYC BCP provides investigation and cleanup grants so that not-for-profit developers can reap the benefits that are often not available under Brownfields programs. Total grants can range to as much as $60,000 to $100,000. These grants can be used towards pre-development designs, environmental investigations and cleanups, technical assistance and environmental insurance.

Upon completion of the NYC BCP, a party can obtain a Notice of Completion and liability limitation against future environmental claims from OER. This provision is meant to encourage development as many other Brownfields programs do not provide such assurances to parties and their lenders.

To learn more about the NYC Brownfields Cleanup Program, see New York City's Office of Environmental Remediation's website:

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