March 14, 2013
Crains New York Business reports that two bills related to recovery from Superstorm Sandy were passed unanimously by the New York City Council on March 13, 2013.
One bill creates additional City oversight over the physical elevation of homes, in an effort to prevent home collapse or construction accidents associated with subpar construction work. According to the press release announcing this bill, the legislation requires that:
- Construction plans clearly state whether a project will involve home elevation work;
- Contractors give 48 hours’ notice to the Department of Buildings before elevating a home, which will give the Department the opportunity to monitor the work;
- Home elevation work be done under the supervision of an approved special inspector; and
- The Department of Consumer Affairs provide education to the public regarding the types of work home improvement contractors can do, and the licenses and permits needed by such contractors to do different kinds of work, including home elevation work.
The other bill waives fees for various City applications, permits, and inspections associated with the repair or reconstruction of Sandy-damaged property used by small businesses.
For more information about this legislation and other Sandy recovery measures, please contact Michael Bogin or Steven Barshov.
March 3, 2013
On February 4, 2013, the New York State Department of Environmental Conservation (“DEC”) issued a draft Commissioner’s Policy setting forth incentives for businesses to police themselves for potential environmental violations. The draft Environmental Audit Incentive Policy, the first formal proposed change in DEC penalty and compliance policies in at least ten years, signals a willingness on the agency’s part to work with regulated entities to reduce the costs of enforcement for both government and business. The policy would expand upon, and supersede, an earlier policy which was limited to small businesses, CP-19: Small Business Self-Disclosure Policy.
Highlights of the proposed policy are set forth below:
- Regulated entities that voluntarily disclose a violation or suspected violation within 30 days from discovery and correct the violation within the 60 days from disclosure will receive a waiver of the gravity component of their penalties if they are otherwise eligible for penalty mitigation, subject to variations in the above time frames as required by law or specified in an agreement with DEC.
- New owners of regulated entities are given a longer disclosure period of 60 days from discovery.
- An entity that enters into a comprehensive environmental audit agreement with DEC becomes eligible to apply for a number of state-sponsored financial incentives, including assistance for the cost of compliance.
- An entity that enters into a comprehensive environmental audit agreement with DEC and implements an environmental management system also receives a reduction in the economic benefit component of any penalty arising out of a disclosure, commensurate with the amount the entity commits to investing in pollution prevention at the facility.
The policy explicitly announces that it does not apply to criminal violations, does not create rights enforceable by any party, and does not restrict the authority or enforcement discretion of the Commissioner. The proposed policy sets forth ways in which the agency may exercise its discretion not to bestow the policy’s benefits on a given entity:
- The policy excludes regulated entities deemed to have a “history of non-compliance.”
- The policy excludes violations evidencing past noncompliance, violations reported by members of the public, violations discovered through DEC inspections, and violations legally required to be self-reported.
- The policy excludes violations “resulting in a natural resources damage claim, serious actual harm, or one that may have presented an imminent and substantial endangerment to human health or the environment.”
The draft Environmental Audit Incentive Policy is available for public review and comment until April 22, 2013. Written comments may be addressed to
Monica Kreshik
NYSDEC
Office of General Counsel
625 Broadway
Albany, NY 12233-1500
ogc@gw.dec.state.ny.us
For more information about DEC’s draft Environmental Audit Incentive Policy, please contact Michael Lesser.
November 20, 2012
A recent review of the New York State Department of Environmental Conservation (“DEC”) Spills Database by the Long Island-based environmental consulting firm Roux Associates, Inc. shows that DEC has been inundated with nearly 1,700 new spills of chemicals, petroleum and other hazardous materials in the few weeks since Tropical Storm Sandy hit the region. Typically, there would only be a few dozen spills over such a period.
Below is a summary of the number of new spills opened by DEC in Region 1 and Regions 2 since the storm through November 12th:
- Kings County– 91 Spills
- New York County– 75 Spills
- Queens County– 135 Spills
- Richmond County– 80 Spills
- Nassau County– 805 Spills
- Suffolk County– 504 Spills
The Spills database shows that the vast majority of these reported spills are small residential releases. There are far fewer industrial or commercial reports, but they appear to involve more serious releases—with larger quantities released and greater impacts on soil and/or groundwater. How DEC will ultimately manage all of these spill remains to be seen.
Sive, Paget & Riesel has decades of experience managing spill reporting and remediation. Please contact us if you need help understanding your obligations in a spill, have been impacted by a spill, or need assistance with a spill response.
November 11, 2012
In the wake of Hurricane Sandy, the New York State Department of Environmental Conservation (“DEC”) has issued a Hazardous Waste Generator Order that explains how to manage hazardous waste generated as a result of the storm in the affected counties of Suffolk, Nassau, New York, Kings, Queens, Bronx, Richmond, Westchester, Rockland, and Orange.
Hazardous waste generators who follow the terms of the Order will be exempt from the otherwise hefty hazardous waste generator fees and taxes under Articles 27 and 72 of New York’s Environmental Conservation Law. The Order provides expedited procedures for creating a hazardous waste consolidation area and requires that “Hurricane Sandy Waste” be written across the top of applicable waste manifests. Generators who do not have an EPA identification number or who create an off-site consolidation area must obtain a temporary EPA identification number.
The Order is in effect from November 6, 2012 until December 6, 2012.
For more information about managing cleanups in the aftermath of Hurricane Sandy, please contact Michael Bogin or David Yudelson.
November 5, 2012
From the website of the New York State Department of Environmental Conservation:
Permitting requirements for businesses and homeowners seeking to discharge water from flooded properties are temporarily suspended. If water contains significant recoverable material, such as fuel oil floating on water that could cause significant further damage to the structure if not removed first or significant environmental damage, all reasonable measures should be taken to collect and properly dispose of the material prior to pumping out the structure.
The suspension of permitting requirements remains in effect until November 6, 2012, and applies only to flood-related discharges where an expedited response is needed.
Where a significant spill has occurred, the owner or operator must report the spill to DEC’s Spill Hotline (1-800-457-7362) and use environmental contractors to handle, treat and dispose of such substances properly prior to discharging to the City sewer system. Contractors who collect and dispose of released petroleum or hazardous substances must comply with all requirements for the handling, treatment and disposal of the collected materials. DEC sent a letter to NYC Department of Environmental Protection (PDF) outlining the permit requirement suspension.
Additional guidance on the above requirements can be found at the following weblinks:
November 2, 2012
The New York State Department of Environmental Conservation (“DEC”) has issued a General Permit for the coastal areas of Long Island, New York City and the lower Hudson Valley. Approved projects include stabilizing existing dwellings, decks and walkways with temporary bracing and pilings; installing sandbags or sand cubes at the toe of damaged structures or eroded escarpments; re-grading eroded dunes; in-kind/in-place repair of stairways; reconstruction of bulkheads and shoreline erosion structures that were functional before Hurricane Sandy; and repair or reconstruction of existing public roads, bridges, utilities and other public infrastructure. DEC’s website contains basic instructions for obtaining coverage under the permit.
For further information about the General Permit, contact Michael Bogin or David Yudelson.
November 1, 2012
The aftermath of Hurricane Sandy highlights why coastal flooding and stormwater control can be expected to receive increased regulatory attention. As the New York metropolitan area struggles to regain its footing, regulators can be expected to take a closer look at plans to manage industrial stormwater runoff, which can carry chemicals, oil, and other pollutants. In fact, the New York State Department of Environmental Conservation (“DEC”) has already made industrial stormwater runoff a high priority.
DEC recently put into place a final general permit for industrial stormwater discharges, the SPDES Multi Sector General Permit for Stormwater Discharges Associated with Industrial Activity, GP-0-12-001 (“MSGP”). The new permit became effective on October 1, 2012 and replaced the Interim Multi Sector General Permit, GP-0-11-009 (“Interim Permit”), which has now expired. As of January 1, 2013, industrial discharges will no longer be covered by the Interim Permit. To gain coverage under the new MSGP, industrial dischargers must file a new Notice of Intent (“NOI”) on or before January 1, 2013.
Industrial dischargers previously covered by the recently-expired Interim Permit are eligible for continued Interim Permit coverage if they revise their Stormwater Pollution Prevention Plans (“SWPPs”) to meet the new MSGP requirements on or before January 2013 and also submit a NOI to DEC for MSGP coverage on or before that date.
The new MSGP requires sources to implement industry-specific Best Management Practices (“BMPs”), or, if this is not feasible, to document why those BMPs cannot be employed. Especially for facilities that were not already covered by the Interim Permit, or that were not in compliance with it, the tight timeline for revising the SWPPP, installing appropriate BMPs, and performing baseline water quality sampling could prove difficult. Facilities that fail to revise their SWPPPs and file their NOIs by the January 1, 2013 will be operating without permit coverage. Unpermitted industrial stormwater discharges may be subject to fines of up to $37,500 per violation per day.
The key features of the new MSGP requirements are:
- Industrial facilities will need to either gain coverage under the new MSGP by January 1, 2013 or demonstrate that their regulated industrial activities are not exposed to stormwater—a “No Exposure” certification;
- A facility that discharges stormwater to impaired waters must demonstrate that the pollutant of concern is not present at its site, demonstrate that the pollutant of concern is not exposed to stormwater at its site, or certify that its SWPPP includes heightened requirements specified in the MSGP; and
- Dischargers now must meet sector-specific “benchmark” numeric effluent limits and submit periodic discharge monitoring reports (“DMRs”) for their facilities.
For further information, please contact Michael Bogin.
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