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.
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.[1] 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.[2]
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.[3]
[1] 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).
[2] 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.
November 12, 2010
In anticipation of new greenhouse gas (“GHG”) restrictions set to take effect on January 2, 2011, the Environmental Protection Agency (“EPA”) released guidance on the GHG permitting determinations for new and modified power plants, industrial facilities, and other stationary sources.
The guidance is directed at regulated entities and state agencies, which have been delegated authority to implement the permitting provisions of the Clean Air Act. Next year, New York and most other states will begin to phase in GHG regulations for certain new and modified stationary sources. The EPA plans to take over GHG permitting in those states that refuse to adopt the GHG rules or are not prepared to do so.
A “tailoring” regulation finalized by EPA last June raised the emissions threshold for the new GHG limits. From January 2 through June 30, 2011, the regulations only cover stationary sources whose construction or modification would increase annual GHG emissions by at least 75,000 tons of carbon-dioxide equivalent and would also trigger the Clean Air Act’s Prevention of Significant Deterioration provisions for other pollutants. Starting in July, construction or modification that increases annual GHG emissions by at least 100,000 tons of carbon-dioxide equivalent could also trigger GHG control requirements.
EPA’s new guidance adopts a flexible interpretation of the “best available control technology” requirements for GHGs. While supporting the consideration of add-on technologies like carbon capture and sequestration systems, the agency acknowledges that such technologies present “significant logistical hurdles” that may render them inappropriate at the present time (GHG Guidance, p. 38). Control technologies are also most commonly selected based on the permit applicant’s primary purpose or objective, so the Clean Air Act would typically not require an applicant for a coal-fired power plant to switch to a less carbon-intensive fuel (e.g. natural gas or renewable energy) (id. at 29).
Instead, sources that trigger the GHG permitting requirements are more likely to be required to implement energy efficiency improvements, which are promoted throughout EPA’s guidance. For instance, EPA notes that “an applicant proposing to build a new facility that will generate its own energy with a boiler could also consider ways to optimize the thermal efficiency of a new heat exchanger that uses the steam from the new boiler” (id. at 32). Other options for GHG reductions include the use of certain types of biomass or implementation of a source-wide Environmental Management System.
The new guidance may impact sources not directly covered by the new GHG controls. With respect to permitting decisions for other pollutants, EPA instructs applicants and authorities to “consider how the control strategies under consideration may affect GHG emissions,” and certain control technologies may be rejected in part based on their projected contribution to climate change (id. at 42).
As implementation of its GHG regulations draws closer, however, EPA’s efforts are facing serious legal and legislative challenges. Suits pending in the D.C. Circuit seek to overturn several EPA rules regulating GHGs under the Clean Air Act, including the tailoring rule. In the Senate, meanwhile, a legislative proposal would delay EPA’s stationary source regulations for another two years.
November 5, 2010
In a radio interview last week, outgoing New York Governor David Paterson announced his plans to eliminate the state’s participation in the federal Superfund cleanup program. The proposal is one of several cuts designed to reduce the state’s budget deficit and accommodate the proposed layoffs of an additional 898 state employees by the year’s end, including 150 in the Department of Environmental Conservation (“DEC”).
The immediate impact of Paterson’s announcement on ongoing and future site cleanups is unclear, and DEC said that “no final decision has been made” on the issue. The state and federal governments currently operate their own Superfund programs, created through separate statutes, and it appears that cleanup will continue as planned for sites listed exclusively under the state program.
According to the Albany Times Union, however, there are 114 federal Superfund sites in New York, with the state and federal governments often cooperating on remedial efforts. For instance, DEC is listed as a support agency in the ongoing, federally-led Hudson River Superfund cleanup, with state officials assisting in the development and oversight of General Electric’s cleanup work. Under Paterson’s plan, “the state will not be involved” at federally listed sites moving forward.
Because the federal Superfund law is not a formally delegated program like the Clean Air Act or Clean Water Act, Paterson’s plan should not require legislative or administrative action, but could instead be accomplished primarily through a reallocation of funds within DEC. However, federal law requires that states fund 10% of the Environmental Protection Agency’s remedial costs for federal sites where the potentially responsible parties cannot be identified or held financially responsible. See 42 U.S.C. § 9604(c)(3). Those funding obligations, memorialized through State Superfund Contracts (“SSCs”), would continue despite Paterson’s planned withdrawal. Of course, the ultimate decision on the state’s participation in the federal Superfund program will rest with the new governor-elect Andrew Cuomo.
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