NYSDEC Brings Environmental Justice Program to Long Island

Environmental Law

 

After conducting a successful pilot program in Westchester County, the New York State Department of Environmental Conservation (NYSDEC) recently expanded its Operation ECO-Quality program to four additional communities across the state, including the Long Island community of Wyandanch. Operation ECO-Quality is a program that uses a community-centered approach to reduce pollution and promote environmental justice in Potential Environmental Justice Areas (PEJAs).  Environmental justice refers to efforts to improve the environment in certain locations, often low-income and minority communities, which experience disproportionate rates of negative health and quality of life consequences as a result of poor environmental conditions.

The Operation ECO-Quality Pilot Program, conducted in Peekskill, Yonkers, and Mt. Vernon, NY, met with a great deal of success.  In addition to other factors, the communities were chosen based on public health data related to asthma rates, since the program focuses on reducing pollution that is believed to contribute to the disproportionate rates of respiratory disease in these communities. Designed to educate and encourage members of environmental justice communities to become more involved in their own improvement, the program took a three-pronged approach to increase compliance and thereby reduce pollution in the targeted areas.  First, the NYSDEC consulted with community leaders to explain the program and its goals, as well as identify key concerns of those within the community.  It then educated community leaders and owners of regulated businesses in order to improve awareness and understanding of the applicable laws and regulations.  Lastly, the NYSDEC’s Environmental Conservation Officers (ECOs) toured regulated businesses to determine whether they were in compliance with environmental laws, and issued warnings or formal violations to those businesses not in compliance.  On follow-up visits conducted several weeks later, ECOs found that more than 80% of businesses that had received warnings had come into compliance by the follow-up visits.

One peripheral and important benefit of the program’s structure was that, through the course of community consultations, community members had the opportunity to bring to the NYSDEC’s attention additional environmental concerns that were outside the immediate focus of Operation ECO-Quality.  This allowed the NYSDEC to address concerns that it may not have been previously aware of and take further steps to improve conditions within the communities, even beyond the concerns that the program was designed to address.

Now that the program has been expanded to four additional communities, including the Long Island community of Wyandanch, Long Island residents will have the opportunity to work with the NYSDEC to reduce pollution and improve the quality of life in their own communities.  If the success of the pilot program is any indication, this program will have very positive implications for those in Wyandanch, and hopefully, other Long Island communities as the program expands further.  

For more information on environmental law, Operation Eco-Quality, or environmental justice, please contact Miriam Villani or Jason Kaplan.

This post was written by Amanda Lewis, Alumni Fellow, St. Johns Law School Graduate 2012.

Posted by Miriam Villani

New York State Department of Environmental Conservation Issues Draft Self-Audit Policy

Environmental Law

 

The New York State Department of Environmental Conservation (“NYSDEC”) has recently issued a draft Self-Audit Policy which will encourage entities to report environmental violations at their facilities. The Policy will enable entities that report environmental violations to reduce or avoid fines normally imposed by such non-compliance. Those entities enrolled in the self-audit program will be required to report any non-compliance violations within 30 days of discovery, and correct the violation with 60 days of its disclosure. Further, those entities that self-audit will be considered a “low priority” site for future NYSDEC compliance inspections.

NYSDEC is responsible for ensuring that public and private entities doing business in New York State comply with environmental law and policy. NYSDEC has the authority to inspect these entities and enforce penalties against those that violate these laws. “However, the high volume of activities potentially affecting human health and the environment as well as practical constraints, including resource limitations, compel the Department to evaluate and implement auxiliary strategies to address compliance with the Environmental Conservation Law (ECL),” as stated in the draft Self-Audit Policy.

It is no secret that NYSDEC’s resources are depleted, and the reality is NYSDEC cannot be everywhere to ensure that all public and private entities comply with New York’s environmental laws, from those using hazardous substances in the manufacturing process to those discharging wastewater during industrial operations. The goal of the self-audit policy is to alleviate some of this burden, but more importantly, to encourage both the voluntary disclosure of noncompliance and the reduction of environmental violations. Additionally, regulated entities that commit through a Self-Audit Agreement “to reduce the environmental impact of its activities, products and services by using environmental performance improvement tools and/or pollution prevention measures” will be rewarded with certain incentives under the Policy.

NYSDEC’s self-audit policy does have its detractors.  New York State Assemblyman Andrew Hevesi (D-Queens) sent a letter to NYSDEC Commissioner Joseph Martens to voice his concern over the policy. Hevesi’s major concern is that entities that participate in the self-audit program may take advantage of the policy’s provision characterizing these entities as “low priority” sites for future inspections. Hevesi is troubled that these entities might only self-report minor violations to NYSDEC, while not disclosing major violations and taking advantage of the promise that NYSDEC inspectors are less likely to inspect the site. These concerns will have to be acknowledged and discussed by NYSDEC before the Policy is finalized.

NYSDEC, as detailed in the Self-Audit Policy, has the discretion to exclude certain regulated entities from benefiting from the Policy, including those entities with a history of non-compliance, warning letters, and/or notices of violation, or entities that were uncooperative in remedying past violations. Further, NYSDEC excludes certain violations from eligibility from penalty relief, including “violations resulting in serious actual harm, or may have presented an imminent and substantial endangerment to human health or the environment.”

The draft Self-Audit Policy message appears to be clear. NYSDEC cannot audit and enforce against every environmental violation in New York State, but the implementation of a Self-Audit Policy may reduce the burden on the NYSDEC as well as encourage continued compliance with environmental laws by New York State public and private entities.

For more information on the NYSDEC Self-Audit policy and environmental compliance, please contact Miriam Villani or Jason Kaplan.

Posted by Miriam Villani

Local Impacts of Hurricane Sandy: Petroleum Spills and Discharges

Environmental Law

 

Hurricane Sandy has brought absolute devastation and destruction to New York. Fallen trees, wind damage, flooding, and loss of power are just a few of the immediate and obvious effects of this storm. However, there are other consequences that are less immediately evident. In many pictures of the aftermath, the recognizable sheen of oil is visible in the flooded waters surrounding local homes and businesses. And as the flood waters recede, the petroleum product that had been floating along will now contaminate the soil and adjacent lands. Underground and above ground storage tanks will have likely been damaged during the storm, resulting in the release of petroleum products and hazardous materials. These discharges can result in contamination to the soil and groundwater, threatening the health of the public and environment.

The New York State Department of Environment Conservation (“NYSDEC”) maintains the Spill Response Program which responds to releases of petroleum and other hazardous material releases. The public must notify NYSDEC of petroleum product and hazardous material releases, and can call the NYS Spill Hotline at 1-800-457-7362, if a spill is discovered. Whether a spill is small (a release of a few gallons) or large, NYSDEC must be notified of the spill and approve of the eventual response and remedial activities. The spills and discharges as a result of Hurricane Sandy will vary in size. It is possible that these spills will release to the soil and potentially contaminate groundwater and require immediate response and remediation. NYSDEC has fielded thousands of calls so far.

The important question here is whether a home or business owner is responsible for contacting NYSDEC and cleaning up petroleum or other hazardous material contamination at their property, although the discharge did not originate at their property. A release of fuel oil from a building several blocks away may have traveled during the storm to your property and impacted its soil. Are you still responsible?

NYSDEC will characterize the current owner and/or operator of the property on which the contamination is found as the responsible party for the response and remediation. Thereafter, it will be that party’s burden to seek other responsible parties to recover cleanup costs. Especially in the aftermath of Hurricane Sandy, attempting to recover costs from the responsible parties becomes a complicated issue because there might be multiple sources of contamination and many being unknown.

In the immediate, it is imperative to contact NYSDEC if a spill or discharge is known. Once NYSDEC is notified of the spill, it will issue a Spill Number and coordinate the response and remediation of the contamination. Legal counsel with expertise in these environmental issues is recommended to assist in communication and negotiation with NYSDEC, as well as to initiate future actions against other responsible parties to recover costs of cleanup.

For more information on the NYSDEC Spill Response Program and petroleum product contamination and remediation, please contact Miriam Villani or Jason Kaplan.

Posted by Miriam Villani