Babylon Landfill Hazardous Waste Site – Responsible Parties Seek Contribution from Generators and Transporters

Environmental Law

 

On November 3, 2011, the Babylon Landfill Joint Defense Group (“JDG”), an association of potentially responsible parties (“PRPs”), filed a Complaint in the U.S. District Court, Eastern District of New York seeking contribution from other alleged PRPs [Babylon Landfill Joint Defense Group v. 1042 Collision Repairs, Inc., et al., CV11-5387 (“Babylon Landfill Contribution case”)]. In the Complaint, the JDG alleges the Defendants contributed to the disposal of hazardous substances at the Babylon Landfill and are liable under the Comprehensive Environmental Response Compensation & Liability Act (“CERCLA”). The Defendants, entities in the businesses of automotive repair and servicing, construction and demolition, hauling, carting, dry cleaning, printing, etc., are alleged to be generators and/or transporters of hazardous substances, as those terms are defined under CERCLA, and are, therefore, liable for the costs of cleanup of the landfill.

CERCLA was enacted by Congress in order to address the cleanup of properties heavily contaminated with hazardous wastes. CERCLA, also known as “Superfund,” established a large pool of money to finance the cleanup of such hazardous waste sites. CERCLA is a powerful federal environmental statute, which imposes strict, joint and several liability on PRPs, including generators and transporters of hazardous substances. Under the Act, the Defendants in the Babylon Landfill contribution case can be held liable regardless of actual fault and can be held responsible for the entire cost of cleanup.

The Babylon Landfill operated as a municipal landfill from approximately 1947 to 1993, and received a combination of municipal waste, commercial waste, construction/demolition waste, industrial waste, and cesspool scavenger waste. In 1993, the New York State Department of Environmental Conservation (“NYSDEC”) and the Town of Babylon entered into a Consent Order which mandated the Town conduct a Remedial Investigation and Feasibility Study (“RI/FS”) and select an appropriate remedy for the cleanup of the Site.

The Town implemented response measures at the Landfill Site to remedy the alleged release and/or threatened release of hazardous substances into the environment. The response costs incurred by the Town were reimbursed by the State of New York (“State”), including, but not limited to the cost of investigation, removal, remedial activity, and operation and maintenance.

The Plaintiffs in the Babylon Landfill Contribution case, prior to filing the Complaint, entered into a Consent Decree with the State, stating they have paid or will pay $3,400,000 to the State to settle the State’s response cost claims as alleged in an underlying cost recovery case brought by the State against the members of the JDG. Pursuant to the terms of the Consent Decree and under CERCLA 42 U.S.C. §§ 9607 and 9613, Plaintiffs seek cost-recovery and contribution from other PRPs for the costs incurred in the remediation of the Site.

The Plaintiffs in the Babylon Landfill Contribution case make three statutory claims under CERCLA for relief against the Defendants, including cost-recovery, contribution, and declaratory relief. The Plaintiffs also make claims under New York common law, including recovery for unjust enrichment and restitution, public nuisance, negligence, strict liability, and indemnification.

The allegations levied against the Defendants in this case will result in complex environmental litigation. The parties will have to assess the facts, apply the relevant law, and allocate the costs of cleanup. Experienced environmental counsel will be needed to navigate the complexities of this CERCLA litigation and to negotiate an allocation scheme reflecting the parties’ actual culpability.

For more information on CERCLA issues and litigation and the New York State Inactive Hazardous Waste Program, please contact Miriam Villani or Jason Kaplan.

Posted by Miriam Villani

EPA Focuses on Integration of Environmental Justice into its Programs and Policies

Environmental Law

 

EPA Administrator Lisa P. Jackson has made it her objective and priority to integrate environmental justice into the agency’s policies, practices, and activities. One result of this endeavor is EPA’s Plan EJ 2014. Plan EJ 2014 is not a rule or regulation, rather it is a road map and strategy for integrating environmental justice throughout EPA’s programs and policies.

The EPA defines environmental justice as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. EPA has this goal for all communities and persons across this Nation. It will be achieved when everyone enjoys the same degree of protection from environmental and health hazards and equal access to the decision-making process to have a healthy environment in which to live, learn, and work.”

Commemorating the 20th Anniversary of President Clinton’s issuance of Executive Order 12898, Federal Actions to Address Justice in Minority Populations and Low-Income Populations, the EPA will use Plan EJ 2014 to empower communities to take action to improve their health and environment and engage stakeholders in these populations to partner with local, state, tribal, and federal organizations to achieve healthy and sustainable communities.

Although Plan EJ 2014 will not promulgate hard caps or mandatory rules, the purpose of this mission is to build stronger relationships with communities overburdened by environmental and health hazards. Engaging and supporting these communities as they get involved with the decision-making process will allow the communities to improve their conditions. In 2014, the EPA will assess the objectives of Plan EJ 2014 to determine the successes and failures, and the lessons learned. Overburdened communities should not be forced to accept environmental and health hazards. To protect them, Plan EJ 2014 will integrate environmental justice into all facets of the agency action and make environmental justice a crucial part of every EPA decision.

For more information on environmental law, including environmental justice issues and EPA policies and practices, please contact Miriam Villani or Jason Kaplan.

Posted by Miriam Villani

LIPA Encouraging Solar Energy Through $15,000 Offer to Towns

Environmental Law

 

In order to encourage the use of solar power, LIPA is offering Long Island townships $15,000 to pass legislation by December 31, 2011, that will fast-track permitting of solar panels for residential homes.

The legislation LIPA is encouraging the towns to pass will eliminate the $150 permit application fee, or reduce the fee to $50, and require permit approval within 14 days. Fast-tracking the application process will allow homeowners to quickly install solar panels on their homes. There may be two hiccups in this speedy permit application process. First, if the home is in a historic district, a review by the landmark preservation group will delay the process and the permit will not be issued within the two week mandatory issuance period. The second obstacle will occur if not all structures on a property are legal. Under current building department policies, the issuance of permits is dependent on all buildings being legal, so if any illegal structures exist on the property, such as sheds or building extensions, the fast-track process could not be applied and issuance would be delayed.

LIPA’s financial contribution to Long Island townships can kickstart residential solar panel use, reduce the traditional electricity load, and incentivize “going green.” It should be considered by all Long Island townships.

For more information on energy and environmental law, please contact Miriam Villani or Jason Kaplan.

Posted by Miriam Villani

Post-Hurricane Irene Cleanup and Construction; NYSDEC Waives Permitting Requirements

Environmental Law

 

This past weekend, Hurricane Irene swept across Long Island causing power outages, floods, erosion, and property damage. Governor Andrew M. Cuomo announced that in order to “help devastated communities and homeowners get back on their feet,” the New York State Department of Environmental Conservation (“NYSDEC”) will waive all permitting requirements for emergency repairs. This mandate will allow property owners to immediately stabilize roads and bridges and other infrastructure in environmentally sensitive areas, such as coastal zones, wetlands, and protected waterways. NYSDEC has requested that it be consulted on any projects in these sensitive areas so that any repairs and construction work will have minimal adverse impact to the environment.

NYSDEC is also advising property owners on the best methods for disposing of storm debris and waste. See NYSDEC’s guidance for storm-related waste handling and disposal: http://www.dec.ny.gov/regulations/8751.html. Cleaning up after a storm can be a difficult task, especially when non-hazardous wastes become intermingled with household hazardous wastes, petroleum products, and other regulated solid wastes. A property owner should use great caution as these wastes require special handling. Potential liabilities can result from the improper handling and disposal of solid and hazardous wastes.

For more information on NYSDEC permitting requirements and the handling and disposal of regulated wastes, please contact Miriam Villani or Jason Kaplan.

Posted by Miriam Villani

EPA Proposes Removal of Sayreville Landfill Site from Superfund List

Environmental Law

 

A municipal landfill that operated in the 1970s, the Sayreville Landfill Superfund Site, Sayreville, NJ, no longer causes a threat to human health and the environment. During its operation, the Sayreville Landfill accepted solid waste and industrial waste. In addition, during and after the landfill’s closure, hazardous wastes were also dumped at the Site causing contamination of the soil and groundwater with volatile organic compounds, toxic metals, and polycyclic aromatic hydrocarbons (“PAHs”). EPA listed the 30-acre landfill as a superfund site in 1983, and began remedial activities: removing over 30 drums, capping the site, and installing a storm water control system. The United States Environmental Protection Agency (“USEPA”) has conducted a review of the Site every five years, the first review completed in 2002. USEPA concluded that the cap continued to protect the public and the environment from any conditions at the Site and proposed to remove the site from the Superfund list. The public comment period will began on August 15, 2011 and will end on September 14, 2011.

For more information on Superfund sites and soil and groundwater contamination, please contact Miriam Villani or Jason Kaplan.

Posted by Miriam Villani

Benefitting From Cool Roofs

Environmental Law

 

The City of New York has launched its NYC °CoolRoofs initiative for a second season this summer in its effort to reduce greenhouse gas emissions by 30 percent by 2030, the goal of PlaNYC, NYC Mayor Bloomberg’s sustainability plan. The project is very simple. Paint the roof with a white, reflective coating and reap the benefits of lower energy costs, reduced energy usage, lower internal building temperatures, lower greenhouse gas emissions, and enhanced durability of the roof. Black and grey rooftops absorb the sun’s rays, transferring the heat to the building below, and requiring significant amounts of energy to cool.

Under the NYC °CoolRoofs program, reflective coatings are being applied to the rooftops on public, private, and non-profit buildings, resulting in the sun’s radiation being reflected rather than absorbed, and increasing the roofs’ thermal emittance, the relative ability of the roof surface to radiate absorbed heat. A cool roof absorbs 80 percent less heat than traditional roofs and lower indoor air temperatures by up to 30 percent. This can translate into air conditioning cost savings of 10 to 30 percent. The City continues to add the white, reflective coating to its own properties. Local Law 21 of 2011 amended the New York City Building Code requires at least 75 percent of the roof area of applicable new buildings to be covered with cool roof or green technologies. Cool roofs are important in areas like Manhattan because of the “urban heat island” effect, which causes cities to be hotter than surrounding suburban and rural areas.

Cool roofs are not only beneficial in cities, however. Long Island would benefit from a similar program. A conversion to a cool roof would pay for itself in three years through energy savings. Further, the initial costs can be de minimis if the white coating is applied by the building owner rather than by a hired professional. In addition, LIPA offers a $.20/ sq. ft rebate for qualifying building owners. To see the requirements and obtain the rebate application, go to: http://www.lipower.org/commercial/efficiency/coolroofs.html. This very simple and low cost conversion will have a positive environmental impact, and the added benefit of economic savings as heating and cooling costs drop.

For more information on cool roofs and green building, please contact Miriam Villani or Jason Kaplan.

Posted by Miriam Villani

EPA Issues New Designation for “Most Efficient” Appliances

Environmental Law

 

This month, the U.S. Environmental Protection Agency (“EPA”) and the U.S. Department of Energy (“DOE”) introduced a new designation for top energy-efficient appliances. The moniker “Most Efficient” will be placed on the top performing appliances in seven categories, including clothes washers, central air conditioning units, refrigerator-freezers, and televisions. The “Most Efficient” label will be placed on those products already within the Energy Star program. The true objective of this program is to incentivize manufacturers to develop more energy efficient products and bring them to market. Although this program is currently in its pilot phase, it is obvious the potential impact it may have in driving energy efficiency standards higher, saving both the consumer and the environment. Currently 15 washers, 18 televisions, and 4 central air conditioners are already listed as Energy Star Most Efficient.

For more information on energy efficiency and federal energy standards, please contact Miriam Villani or Jason Kaplan.

Posted by Miriam Villani

Proposed Solid Waste Rulemaking to Promote Hazardous Waste Recycling

Environmental Law

 

The U.S. Environmental Protection Agency (“USEPA”) proposed a modification of the 2008 Definition of Solid Waste (“DSW”) rule of the Resource Conservation and Recovery Act (“RCRA”). The DSW is critical in determining whether a waste is subject to regulation under Subtitle C of RCRA. This rulemaking is being done in an effort to encourage recycling of hazardous waste and to promote the economic, environmental, and public health benefits of waste recycling. The new provisions will attempt to improve the 2008 rule, focusing on more stringent oversight of hazardous waste recycling and greater transparency in the storage and transport of hazardous waste. Under the new rule, companies recycling on-site will be subject to enhanced storage and recordkeeping requirements. Those facilities shipping waste off-site will be required to transport waste to a permitted hazardous waste recycling facility.

Additionally, an impetus for this rule modification lies with environmental justice concerns, as the prior rule may have had a disparate impact on low-income and minority communities. USEPA is focusing more closely on how its regulations may disproportionally affect these vulnerable communities. Through an environmental justice analysis, USEPA is using its policy discretion to remedy these concerns. The USEPA has engaged in such an analysis for the 2008 DSW rule, and has drafted an environmental justice analysis methodology report for review and comment. The 60-day comment period for the proposed provisions will begin once the proposal is published in the Federal Register.  The docket for the rulemaking is EPA-HQ-RCRA-2010-0742 and can be accessed at http://www.regulations.gov/ once the proposal is published.

For more information on hazardous waste recycling and RCRA waste disposal requirements, please contact Miriam Villani or Jason Kaplan.

Posted by Miriam Villani

Using Green Space to Improve Water Quality in the Bronx and Harlem Watersheds

Environmental Law

 

Instead of building hard cement pipes and sewer lines, a new federal partnership, as part of its urban waters initiative, will be developing green spaces in order to help cities meet Clean Water Act requirements. This past week the United States Environmental Protection Agency (“USEPA”) announced the Bronx and Harlem River watersheds in New York would be a site for a pilot program for the new urban waters initiative. The objective of the initiative is to assist cities in the development of green infrastructure, systems which are both environmentally friendly and less expensive to construct than the brick and mortar methods once used.

Water runoff and combined sewer overflow are major reasons for the poor water quality in our urban coastal zones. Storm water flows along parking lots, roads, and pipes, picking up and carrying contaminants to the nearest water source. The objective of the initiative is to reduce these impermeable surfaces and develop green spaces where rain and storm water can be filtered through the ground before reaching a major water source, i.e. your local stream, river, bay, or ocean. A federal partnership is actively engaging regional and local agencies and organizations to build support for these revitalization efforts. The USEPA and the Department of the Interior will work with the New York State Department of Environmental Conservation and Department of Transportation as well as the NY City Department of Parks and Recreation and Transportation and Planning. It appears that this collaboration has a secondary mission, to build leadership on the local level, engaging and serving community partners and increasing environmental awareness, especially among the youth.

For more information on New York State water quality thresholds and groundwater contamination, please contact Miriam Villani or Jason Kaplan.

Posted by Miriam Villani

Are Recycling Facilities Impacting Yaphank Groundwater?

Environmental Law

 

Facilities recycling nonhazardous wastes, such as tunnel rock, trees, leaves, mulch and gravel are coming under fire from local Long Island residents and municipalities. The operations of two recycling sites near the Yaphank Historical District have led to nuisance complaints from local residents as a result of traffic, fumes, and smell. Additionally, the presence of these operations illustrates a conflict between state and local government.

Under 6 NYCRR Part 361-1, Recyclables Handling and Recovery Facilities (“RHRFs”) can operate as long as they work within the state environmental standards. Long Island currently has 133 such facilities recycling yard waste and clean demolition debris without much government oversight. These facilities only need to be registered. They do not have to be permitted by the New York State Department of Environmental Conservation (“NYSDEC”). The NYSDEC is considering giving registration applications for recycling facilities more scrutiny to ensure safe operation.

Tension exists between New York State and the local municipality because the state government grants approvals for these facilities without any concern for the local municipal zoning ordinances. The local zoning codes are outside the jurisdiction of the state agencies and have resulted in these facilities being approved to operate in residential districts. While the NYSDEC has no intention of closing these facilities as they provide necessary recycling of nonhazardous wastes and do not pose a threat to human health or the environment, this may change as unusually high radioactivity levels in groundwater have been discovered near a Yaphank compost facility.

Groundwater contaminated with radioactive materials is a threat to human health and the environment. If soil or groundwater is found to contain radioactive materials, the site will have to be remediated so that no person receives a radiation dose greater than 4 millirems per year from drinking the groundwater. The New York State drinking water standards are consistent with the United States Environmental Protection Agency’s federal drinking water standards. The New York State Department of Health maximum contaminant levels (“MCL”) for radioactive materials in community water systems can be found at 16 NYCCR Part 5, Subpart 5-1, Table 7.

A plume discovered in 2009 near a compost transfer station may be a source of high radioactivity levels in the Yaphank groundwater. The contaminated plume has impacted one private well, with radioactivity levels exceeding the state drinking water standards. Although it is unlikely the plume or radioactivity levels in the groundwater came from the composting of leaves and yard waste, DEC now acknowledges that the State must consider new techniques for managing compost facilities that best protect groundwater.

For more information on groundwater contamination and remediation, please contact Miriam Villani or Jason Kaplan.

Posted by Miriam Villani