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The Tax Cuts and Jobs Act of 2017 makes it harder to take tax deductions for some payments to governmental entities.  The change may impact settlements between private entities and federal, state and local environmental agencies.  In most cases, it will not affect environmental settlements between private parties.

Section 162(f) of the Tax Code has long prohibited deductions for fines and penalties paid to the government.  The new law makes the tests for deduction of certain payments to a governmental agency more stringent.  The amended Section 162(f) substantially limits the tax deduction available for (1) any settlement or other payments, (2) made to or incurred at the direction of a governmental entity, (3) related to a violation of any law or governmental investigation or inquiry into the potential violation of any law.

There is an exception to this rule, which allows a deduction for the following payments: (1) restitution, including remediation of property; or (2) an amount paid to come into compliance with a violated law or involved in an investigation or inquiry.  To be deductible, the payment has to be expressly identified under a court order or settlement agreement as a restitution or compliance payment.  This exception does not apply to amounts paid “as reimbursement to the government for the costs of any investigation or litigation.”

Under the statute, the limitation applies only to payments made to, or at the direction of, a governmental entity.  A deduction, therefore, remains available for remediation expenses paid to private parties without governmental direction.

Finally, a new provision under Sec. 6050X requires government agencies involved in settlements to report to the Internal Revenue Service (IRS) the portions of the settlement payment that are and are not deductible under Section 162(f).

Our tax and environmental groups can advise on the implications of the new law, including factoring into negotiations the potentially higher tax cost of government settlements and ensuring that the settlements reached are well-drafted and as tax-efficient as possible.

On February 12, 2018, the Trump Administration released its much-anticipated Infrastructure Plan. While the bulk of the more than 50-page document proposes a wide array of funding and reforms for various infrastructure programs, as well as ways to streamline and fast-track permitting for infrastructure projects, it also proposes changes to Brownfield redevelopment programs, including the federal Superfund law (CERLCA).  The plan seeks to incentivize the redevelopment of contaminated properties and address related legal and financial risks.

The proposed changes include allowing National Priorities List sites to be eligible for Brownfield revolving loan fund and grant programs, clarifying and expanding the liability protections for state and local governments that acquire contaminated properties through tax foreclosures and the like, expanding EPA’s authority to enter into administrative agreements with brownfield developers, and eliminating restrictions on funding for infrastructure projects that could be integrated with a remediation.  This would mean even more change at EPA, which has been busy implementing the Superfund Task Force Recommendations released last year.

 

 

The United States Environmental Protection Agency (“EPA”) recently issued the Record of Decision (“ROD”) for the lower 8.3 miles of the Lower Passaic River, which sets forth EPA’s $1.38 billion remedy. Potentially Responsible Parties (“PRPs”) will be interested to know that the $1.38 billion price tag only addresses one of the operable units that comprise the Diamond Alkali Superfund Site, which includes the 17-mile tidal stretch of the Lower Passaic River.

Sediment Mega Sites

In recent years, EPA has increasingly shifted more of its focus towards contaminated waterways, as opposed to the traditional single site Superfund site.  Of all the Superfund sites throughout the United States, “sediment mega sites” like the Gowanus Canal, Fox River, Portland Harbor and the Hudson River (just to name a few) are among the most complex to investigate, the largest in areal extent, and the most challenging and expensive to remediate.

Remediating sediment mega sites is a massive undertaking because of the persistent nature of the contaminants, the hundreds of potential sources and the migration and mixing of the contamination from tidal influences. It comes as no surprise that the remediation costs for these sediment mega sites can exceed $1 billion.

As is common for these waterways, the sediments in the Passaic River consist of a chemical soup of hazardous substances, including dioxin, PCBs, mercury, pesticides (including DDT) and heavy metals, created from generations of industrial operations along the waterways.  According to EPA, the remedy released in this ROD is the final action for the sediments in the lower 8.3 miles and an interim action for the water column in this section of the river.  Meanwhile, EPA and some of the PRPs are still studying the sediments in the upper 9 miles, the water column of the entire 17 miles of the river and the entire Newark Bay Study Area. The scope and cost of those remedies are unknown. We have a long road ahead of us.

The Proposed Remedy

The scope of the proposed remedy is extensive.  It includes:

  • Bank to bank dredging of approximately 3.5 million cubic yards of sediments;
  • Installing an engineered cap over the river bottom for the entire 8.3 miles;
  • Transporting the dredged materials to be dewatered, treated and disposed;
  • Long-term monitoring and maintenance of the engineered cap; and
  • Long-term monitoring of fish, crabs and sediment.

What’s Next?

If EPA is following its Superfund playbook for traditional sites, its next move is to issue “Special Notice Letters” to some or all of the PRPs inviting them to perform or fund the proposed remedy. Given the complexity of sediment mega sites, however, EPA has reserved the right to depart from the playbook.  EPA may therefore take a different approach enforcing this ROD, which is certainly possible in light of the overwhelming number of PRPs involved.  The next step is to see if EPA issues any Special Notice Letters, or takes an alternative approach.

Also, keep in mind the $1.38 billion remedy does not address natural resource damages (“NRDs”). The Natural Resource Trustees (which have jurisdiction over NRDs) have yet to publish an NRD Assessment.

Stay tuned to the Cole Schotz blog as we continue to monitor this landmark cleanup.