November 15, 2013
The Division of Environmental Remediation of the New York State Department of Environmental Conservation (DEC) has released its 2012-2013 Annual Report, noting key developments of the past State Fiscal Year (April 1, 2012 – March 31, 2013).
As reflected in the Annual Report, DEC’s environmental remediation programs affect many businesses across the state. For example, in the 2012-2013 State Fiscal Year, there were more than 18,000 actions that required intervention by the Division of Environmental Remediation; additionally, DEC had jurisdiction over 109,000 petroleum bulk storage tanks and 4,600 chemical bulk storage tanks.
Key developments discussed in the annual report include the following:
Brownfield Cleanup Program:
The past year saw an uptick in the number of projects approved to enter the state Brownfield Cleanup Program (BCP). In the past State Fiscal Year, 45 projects were approved, with 29% of these projects located in New York City. In prior reporting cycles since 2007, that number has ranged from 28-34. The increase in approved applications likely reflects the race to qualify for tax credits under the BCP, which are being phased out and will not be available for parties that do not receive their BCP Certificate of Completion by the end of 2015.
State Superfund Program
DEC’s authorization to bond new funds for the State Superfund Program has expired. DEC can use appropriations from prior years and cost recoveries to support the program. DEC received $12.1 million in cost recovery revenue in the past State Fiscal Year.
In the past State Fiscal Year, 13 “Class 2” sites, which are deemed to pose a significant threat to human health and/or the environment and require action, were added to State’s Inactive Hazardous Waste Site Registry. This number represents a decline from prior years; there had been at least 19 new Class 2 listings annually from the 2006-2007 through 2011-2012 State Fiscal Years.
Environmental Restoration Program
Funding for DEC’s Environmental Restoration Program, which reimburses municipalities for brownfield cleanup and redevelopment, has been revived: “Under the Cuomo administration’s New York Works capital infrastructure program, the 2013/2014 New York State Budget included $12 million which DER will use to complete cleanup of projects where funding had previously not been available.” New applicants to the program had not been approved since 2008 due to lack of funding.
Bulk Storage Program:
Revisions to the state’s Petroleum Bulk Storage and Chemical Bulk Storage regulations are under way, pursuant to a two-phase public participation process. In Phase One, initial informal draft revisions reflecting changes in federal law were released for public comment. Phase Two comprises the release of formal drafts and the acceptance of public comments thereon; the formal drafts would account for further changes in state and federal law and are expected to be issued in the 2014-2015 State Fiscal Year.
Liquefied Natural Gas:
DEC has proposed new regulations for the siting, storage and transport of liquefied natural gas in New York State. The agency expects to finalize and promulgate the regulations in the present State Fiscal Year. Public comments on the proposed regulations are being accepted until December 4, 2013.
Draft revisions to DEC’s regulations on the prevention and control of radioactive material are expected to be released in the present State Fiscal Year. New regulations establishing cleanup criteria for remediation of radioactive contaminated sites are also expected in the present State Fiscal Year.
Vapor Intrusion Initiative:
DEC identified 421 sites to be evaluated for vapor intrusion, where a remedial plan had been approved before vapor intrusion was recognized as a major concern. As of March 2013, 318 of these sites have been evaluated and 108 sites are undergoing such evaluation.
Former Manufactured Gas Plants Initiative:
As of March 2013, DEC has issued or entered into cleanup orders or agreements for 213 of 221 identified former manufactured gas plant facilities.
For more information on the Division of Environmental Remediation’s programs, please contact Michael Lesser.
October 25, 2013
The New York State Department of Environmental Conservation (“NYSDEC”) announced last week that the agency has finalized its new Environmental Audit Incentive Policy. This policy, which was proposed last March, will reward businesses that implement good environmental self-management by, under certain circumstances, waiving some civil penalties for violations that are discovered while self-auditing. It will come into effect on November 18, 2013.
The new audit policy marks the first change in NYSDEC’s penalty and compliance policies in over ten years and suggests greater flexibility for regulated parties and the potential for leadership in environmental compliance from within the business community.
Many members of the regulated community already use environmental management systems and pollution prevention. The new policy supports those efforts and encourages widespread use. It also encourages new owners of regulated entities to disclose, correct, and prevent the recurrence of violations, and implement pollution prevention. It does so in several ways, including:
- Lengthening the disclosure period for new owners and provides a penalty waiver for disclosure of violations discovered within 60 days of acquiring a new property;
- Waiving a component of civil penalties for existing owners who voluntary disclose and timely correct violations;
- Providing financial and technical incentives for the use of environmental management systems and pollution prevention
The policy is not a total departure from NYSDEC enforcement norms. It states that it will not reward entities with a history of non-compliance. Certain violations are also excluded from the policy, including recurring violations and those involving criminal activity or serious harm to human health or the environment.
For more information about DEC’s Environmental Audit Incentive Policy, please contact Michael Lesser.
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
Office of General Counsel
Albany, NY 12233-1500
For more information about DEC’s draft Environmental Audit Incentive Policy, please contact Michael Lesser.
September 8, 2011
The recent devastating impacts of Tropical Storm Irene and the solemn remembrance of 9/11 make a review of New York’s emergency environmental procedures both timely and relevant. Such emergencies affect existing environmental permits and create new unanticipated environmental problems that may require exceptions and waivers to the environmental status quo.
The overall coordination and implementation of state emergency response efforts is the responsibility of the newly reorganized Division of Homeland Security & Emergency Services (“DHSES”), although the New York State Department of Environmental Conservation (“DEC”) continues to provide critical resources for search, rescue and spill response. The state’s Public Authority Law also allows public authorities such as the MTA to invoke independent emergency powers.
In response to Tropical Strom Irene, Governor Cuomo has issued a number of executive orders and press releases governing emergency preparations and recovery. Of particular note:
- Executive Order 17 directs DEC, among other agencies, to “to take appropriate action to protect State property and to assist affected local governments and individuals in preparing for, responding to and recovering from this disaster.”
- Executive Order 18 suspends certain parts of New York’s Vehicle and Traffic Law to allow the use of oversize and unregistered vehicles for disaster relief.
- Executive Order 19 provides for emergency infrastructure relief and financing.
DEC has provided instructions and contact information for questions concerning the removal and disposal of storm debris. DEC’s regulations provide legal authority to waive most procedural permit requirements in the case of emergencies, and to allow holders of air permits to operate without liability in certain conditions. However, despite potential storm-related delays, it is always best to contact the regional DEC permit administrator to determine the status of any specific project or permit or the proper disposal method for any storm-related debris.
Finally, while DEC and other state agencies may use enforcement discretion, spill reporting requirements generally remain in effect and should be complied with as quickly as the situation allows. In the weekend following Irene, the DEC Spill Hotline received approximately 430 spill reports.
For more information on emergency environmental planning and New York’s recent storm response efforts, contact Michael Lesser.
July 11, 2011
On June 28, the Supreme Court granted a petition to review a Ninth Circuit decision holding, as other circuits have also held, that administrative compliance orders issued by the Environmental Protection Agency (“EPA”) under the Clean Water Act are not judicially reviewable until EPA brings an enforcement action in federal court.
The petitioners in this case, Sackett v. EPA, sought judicial review after EPA issued an order applying to property that the agency had determined was within its wetlands jurisdiction. The EPA order prevented the petitioners from building a house and also directed the petitioners to restore the land to its original condition or face heavy penalties.
The Supreme Court granted review on two critical questions: (1) whether pre-enforcement judicial review of administrative compliance orders is available under the Administrative Procedure Act, and (2) if not, whether the unavailability of such review violates the due process clause of the Fifth Amendment.
EPA argued that Supreme Court review was unnecessary because the four other circuit courts which have considered this same issue have all agreed that the absence of pre-enforcement review of orders under the Clean Water Act is authorized and permissible. The Supreme Court appears to have accepted the petitioner’s view that the inability to immediately challenge EPA orders is an issue of significant nationwide importance.
It remains to be seen whether the Supreme Court’s decision in this case will be confined to matters arising under the Clean Water Act. The Supreme Court recently declined to review a decision by the D.C. Circuit upholding the absence of pre-enforcement judicial review under the Superfund law.
Mark Lebel is a Summer Associate at Sive, Paget & Riesel, P.C.
March 15, 2011
On March 8, 2011 the EPA announced its latest round of potential Superfund sites – nominees to be listed on the National Priorities List (NPL) under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), commonly known as the Superfund statute. The proposed sites included the New Cassel/Hicksville groundwater contamination site (NCH Site), located in Nassau County, New York. According to EPA records the NCH Site includes approximately 10 million square feet of aquifer contaminated by chlorinated compounds, including perchloroethylene (PCE) and trichloroethelyne (TCE).
EPA’s nomination of the NCH Site reflects an emerging trend toward large, multiparty Superfund sites in the New York metro area. In addition, since 2009 the rate at which EPA has been adding sites to the NPL has increased from prior years, and the recent nominations reinforce this trend.
Complex, multiparty sites were relatively common in the two decades following CERCLA’s enactment in 1980. EPA listed many former landfills, casting a broad liability net over dozens of potentially responsible parties (PRPs) at a time, and these sites often involved tens or hundreds of millions of dollars in response costs. However, while listings continued, by 2005 practitioners and commentators had noted a dropoff in large government-led cleanups. Around this time, intense economic pressures to develop property also resulted in many voluntary cleanups by parties who had no prior connection to the contamination. The focus of CERCLA practice shifted accordingly, from EPA-led megasites to voluntary cleanups, with courts scrutinizing the legal avenues of recovery for volunteers under the statute’s cost recovery and contribution provisions.
More recently, the EPA has named several large, complex, and costly sites in the New York metropolitan area to the NPL, including the Gowanus Canal and Newtown Creek, each estimated to involve cleanups costing hundreds of millions of dollars. EPA is also pursuing efforts to investigate and remediate portions of the Lower Passaic River, as part of the Lower Passaic River Restoration Project. At another large cleanup site, in July 2010, 100 PRPs signed on to conduct a Remedial Investigation/Feasibility Study for the Berry’s Creek study area in Bergen County, NJ. The first phase of dredging of the Hudson River Superfund site by General Electric began in 2009 and cost approximately $560 million. As the above examples illustrate, EPA’s Region 2 appears increasingly focused on contaminated waterways, which by their nature involve complex and costly cleanups.
The rising number of Superfund sites is not just a local development; the number of listings is on the rise nationwide. Between 2003 and 2008 EPA listed an average of 14.6 new sites per year. By contrast, in the first few months of this year, 25 sites have already been proposed or listed, and if all those sites are listed average new listings per year since 2009 will jump to 21.6—50% over the previous five years. Of course, more sites may also be listed in the remaining nine months of 2011.
 See, e.g., David A. Dana, State Brownfields Programs as Laboratories of Democracy?, 14 N.Y.U. Envtl. L.J. 86, 87-89 (2005) (analyzing “decline” of government-led CERCLA cleanups and enforcement).
 See, e.g., United States v. Atlantic Research Corp. 551 U.S. 128 (2007); Consolidated Edison v. UGI Utilities, Inc. 423 F.3d 90 (2d. Cir. 2005).
March 1, 2011
On March 1, 2011, the Environmental Protection Agency (“EPA”) announced its plans to postpone the upcoming deadline for mandatory reporting of greenhouse gas (“GHG”) emissions, which is currently scheduled for the end of this month. EPA has not set a revised deadline, though the agency reported that it “is in the process of finalizing a user friendly online electronic reporting platform,” which it plans to unveil this summer.
EPA’s GHG Reporting Program arose out of a provision in the Consolidated Appropriations Act of 2008, requiring “mandatory reporting of greenhouse gas emissions above appropriate thresholds in all sectors of the economy of the United States.” EPA first proposed reporting requirements in March 2009 and finalized its initial regulations six months later, on October 30, 2009. Since then, the agency has issued a series of regulations expanding and clarifying the scope of reporting for various industries and activities, such as the mandatory disclosure of reporting facilities’ co-generation power units.
The GHG Reporting Program primarily covers GHG-emitting facilities, fossil fuel suppliers, and industrial gas suppliers whose aggregate GHG emissions exceed 25,000 metric tons carbon-dioxide equivalent (CO2e) per year, though facilities in certain emissions intensive source categories (e.g., cement manufacturing and petroleum refining) are universally covered. EPA has projected that the rule would cover approximately 10,000 sources, which are collectively responsible for 85-90 percent of total U.S. GHG emissions.
Covered facilities were required to begin monitoring their GHG emissions on January 1, 2010, and the deadline for their first annual reports was set to be March 31, 2011. EPA plans to make much of the data it collects publicly available, and the reported information is expected to inform recent and forthcoming efforts to regulate stationary source GHG emissions under the Clean Air Act. Earlier this year, EPA began phasing in the first GHG permitting requirements for certain new and modified major stationary sources, and the agency is legally obligated to propose GHG New Source Performance Standards (“NSPS”) for power plants by July 26, 2011.
EPA still plans to publish data submitted under the GHG Reporting Program “later this year,” though it is not clear when facilities will have to report their 2010 emissions. Instead, the agency promised to provide additional information on its deadline changes over the coming weeks.
EPA’s recent announcement comes on the heels of a Congressional vote which cast further uncertainty over the future of the agency’s suite of GHG regulations. On February 18, 2011, the House of Representatives passed a seven-month budget “continuing resolution” that would largely de-fund EPA’s GHG reporting registry and prevent EPA from spending any funds to implement its stationary source GHG regulations. The Senate has not taken up that bill, however, and the House has since passed a two week stop-gap resolution without the GHG provisions.
For more information on EPA’s GHG Reporting Rule and other climate-related initiatives, contact Jeffrey Gracer.
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