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

Port Washington Landfill Joint Defense Group Cost Recovery

Environmental Law

 

In the last several weeks, the Port Washington Landfill Joint Defense Group (“JDG”), an association of potentially responsible parties (“PRPs”), has delivered another round of demand letters to companies and small businesses on Long Island seeking contribution for costs associated with the investigation and remediation of the Port Washington Landfill pursuant to the federal Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”). The State of New York is seeking to recover from the JDG its past and future response costs expended during its investigation, remediation, and monitoring of the Port Washington Landfill Superfund Site (the “Site”).

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, businesses that had their wastes sent or that hauled waste to the Port Washington Landfill can be held liable regardless of actual fault and can be held responsible for the entire cost of cleanup.

The Port Washington Landfill is a 54-acre municipal landfill that was operated by the Town of North Hempstead from 1973 until September 1983. The landfill received a combination of industrial waste, residential and commercial waste, and construction/demolition waste. During the operation of the landfill, volatile organic compounds (“VOCs”) were disposed of at the Site, creating a significant environmental condition that resulted in the closure of nearby public water supply wells. In 1990, the New York State Department of Environmental Conservation (“NYSDEC”) and the Town of North Hempstead entered into a Consent Decree which mandated that the Town implement the remedial actions selected in the 1989 Record of Decision (“ROD”).

The Town implemented response measures at the Site to remedy the alleged release and/or threatened release of hazardous substances into the environment. Pursuant to the New York State 1986 Environmental Quality Bond Act, the Town was reimbursed by the State of New York (the “State”) for three quarters of the allowable response costs, including, but not limited to the cost of investigation, removal, remedial activity, and operation and maintenance.

The State has sought $20 million in its cost recovery from the Port Washington Landfill JDG. Pursuant to CERCLA 42 U.S.C. §§ 9607 and 9613, once the Port Washington Landfill JDG pays the State its costs incurred in the remediation of the Site, the JDG may seek cost-recovery and contribution from other PRPs. Therefore, the Port Washington Landfill JDG can attempt to recovery monies from any entities that may have disposed of waste at the Port Washington Landfill.

Parties have until August 31, 2012, to respond to the Port Washington Landfill JDG demand for settlement. After that date, parties who have not responded and settled with the JDG will likely be sued by the JDG in litigation similar to the pending lawsuit concerning the Babylon Landfill. (Please see Babylon Landfill Hazardous Waste Site – Responsible Parties Seek Contribution from Generators and Transporters Blog Post on Nov. 17, 2011)

Unfortunately, despite the fact that the landfill closed nearly three decades ago, under the strict, joint and several liability provisions of CERCLA, the JDG can still seek contribution from other PRPs. Ignoring this notice will not mitigate the problem and will likely lead to greater costs. Parties who have received a letter from the JDG should seek guidance from experienced environmental legal counsel concerning this demand.

For more information on the Port Washington Landfill and CERCLA issues, please contact Miriam Villani or Jason Kaplan.

Posted by Miriam Villani

Suffolk County Land Bank and Brownfield Redevelopment

Environmental Law

 

On March 13, 2012, the Suffolk County Legislature unanimously approved a resolution to create the Suffolk County Land Bank Corporation (“Land Bank”), pursuant to the New York State Land Bank Program (Article 16 of the New York Not-For-Profit Corporation Law), signed into law by Governor Cuomo in July 2011. Article 16 provides New York State municipalities the ability to apply for and create land banks in their communities to take control and redevelop vacant and abandoned land, known as brownfields.

The Suffolk County Legislature has taken advantage of this opportunity by creating a land bank, which “can serve to free up strategic brownfield sites and provide for local involvement in the disposition and re-use of these sites.” Suffolk County has accumulated in excess of $20 million in back taxes from these properties over the last 20 years, but has been prohibited by the Suffolk County Tax Act from selling them for less than the amount of the taxes owed. The Land Bank will allow the county to sell the property to developers for less than what is owed in taxes, however, the developer will then be responsible for the remediation of the land. Suffolk County Legislator DuWayne Gregory (D-Amityville), in an interview with the Times Beacon Record, says that under the Land Bank, “[the county is] not responsible for cleanup. We’ll try and get the [new] property owner to clean it up.” The Land Bank hopes to tackle the approximate 83 brownfield properties in Suffolk County, totaling more than 76 acres and representing $20 million in lost tax revenue. “This land bank will finally give Suffolk a tool to put dozens of brownfields in the hands of private individuals where they can be cleaned up and restored to good use,” Suffolk County Executive Steve Bellone said in a press release.

While there is no doubt that the goals of the Land Bank are worthy of praise, both the Land Bank and prospective purchasers should be wary of potential environmental liabilities that may result from these transactions. While it is clear that the Suffolk County Land Bank has no interest in conducting the remediation of these brownfields, the mere ownership of these properties may result in unexpected environmental liabilities. If contamination is not contained and further migration of hazardous substances occurs, the Land Bank potentially can be liable for damages to adjacent properties.

Additionally, a prospective purchaser of a brownfield may face environmental liabilities as a result of its ownership of the property. Under this program, the purchaser will ultimately be responsible for the cleanup and should conduct “all appropriate inquiry” (“AAI”) into the condition of the property in order to be eligible for environmental liability protections.

The United States Environmental Protection Agency (“USEPA”) encourages local governments, land banks, and prospective purchasers to conduct all AAI so that they may become eligible for CERLCA liability protection. AAI is a critical requirement of the bona fide prospective purchaser (“BFPP”) status, which would allow a land bank and prospective purchaser to avoid CERCLA liability, as provided in CERCLA §§ 101(40) and 107(r)(1). Further requirements to maintain BFPP status include: 1. the disposal of hazardous substances had to have occurred before the party acquired the property; 2. the party cannot have an affiliation with a liable or potentially liable party; 3. the party must comply with land use restrictions and not impede effectiveness of the institutional controls; 4. the party must take reasonable steps to prevent release of hazardous substances; and 5. the party must provide full cooperation, assistance, and access to overseeing agencies.

Obtaining BFPP status is one of several ways prospective purchasers can mitigate potential environmental liabilities and minimize future costs. In addition to conducting its own environmental due diligence at the property, a prospective purchaser should negotiate protective environmental language for the brownfield sale agreement, including indemnifications, representations, and warranties. A prospective purchaser of a brownfield may also consider purchasing environmental insurance to remove risk from potential unknowns at the property that could raise the cost of cleanup. Countless times purchasers take ownership of contaminated properties only to find the costs of cleanup much greater than originally anticipated. Understanding the protections and defenses under state and federal environmental laws is critical to entering into any contract for a contaminated property. Environmental legal counsel should be retained to assist in these transactions to ensure risks are minimized and interests are protected.

For more information on Land Banks and brownfield redevelopment, please contact Miriam Villani or Jason Kaplan.

Posted by Miriam Villani

Sackett v. EPA: Challenging EPA Compliance Orders

Environmental Law

 

All Michael and Chantell Sackett wanted to do was build a house on their 2/3-acre residential lot in Bonner County, Idaho. They probably did not think the construction of their home would involve a decision by the Supreme Court of the United States.

The Sacketts filled their small parcel with dirt and rock in order to prepare for construction. Their property is located just north of a lake, but separated by several lots containing permanent structures. Nevertheless, some months later, the Sacketts received a compliance order from the United States Environmental Protection Agency (“EPA”). The EPA had determined that the Sacketts had illegally filled a wetland.

The Clean Water Act prohibits, among other things, “the discharge of any pollutant by any person,” without a permit, into the “navigable waters,”–which the Act defines as “the waters of the United States.” § 1311, § 1344, § 1362(7). The EPA found the Sacketts’ property to contain wetlands as that term is defined by 33 C.F.R. § 328.4(8)(b). The property is adjacent to a lake that is a “navigable water” within the meaning of § 502(7) of the Clean Water Act. When they placed dirt and rock on the property without a permit, the Sacketts had engaged in the discharge of a pollutant into a navigable water, violating the Clean Water Act according to the EPA. The EPA ordered the Sacketts to undertake activities immediately to restore their property to its prior condition.

The case rested on whether the Sacketts could appeal EPA’s order and obtain a hearing to present arguments in opposition to EPA’s wetland determination. The Sacketts argued that the EPA’s issuance of the compliance order was “arbitrary and capricious” under the Administrative Procedure Act (the “APA”), 5 U.S.C. § 706(2)(A), and that it deprived them of “life, liberty, or property, without due process of law,” in violation of the Fifth Amendment of the U.S. Constitution. The EPA argued that the Sacketts were not entitled to a hearing as the review of an agency order was barred until the Agency sued. The District Court agreed with the EPA and dismissed the Sacketts suit on the basis of lack of jurisdiction. The Sacketts appealed to the Ninth Circuit, which affirmed the District Court’s determination, further holding that the Clean Water Act “impliedly” barred pre-enforcement review under the APA, and EPA’s refusal to hold a hearing based on the compliance order did not violate the Sackett’s due process.

On March 20, 2012, the U.S. Supreme Court in Sackett v. EPA, struck down EPA’s ban on “pre-enforcement review” under the Clean Water Act. The Court held that the Sacketts had a right to appeal an EPA compliance order that required them to remove fill from their property and restore it to its previous condition.

The first issue the Court focused on was whether the compliance order was a final agency action. The Court noted that the compliance order “has all the hallmarks of APA finality that our opinions establish.” The Court found that the order “determined” “rights or obligations” by requiring the Sacketts to restore the wetlands on their property. Further, “legal consequences… flow” from the issuance of the order. The Court stated that the order also “severely limits the Sacketts’ ability to obtain a permit from the Army Corps of Engineers.” Finally, the issuance of the order marked the “consummation” of the Agency’s decisionmaking process. For these reasons, the Court rejected EPA’s contention that its action was not final.

Next, the Court was faced with determining whether the Clean Water Act barred pre-enforcement review. Judicial review is typically available under the APA to challenge final agency actions, except where the regulating statute precludes such review. A statute need not expressly preclude judicial review, but there must be legislative intent illustrating Congress’s desire to implicitly bar pre-enforcement review. The EPA argued that although the Clean Water Act did not expressly preclude judicial review, the Act “impliedly” barred such review. Both the District Court and the Ninth Circuit agreed with this argument. However, the Supreme Court was not persuaded by the reasons EPA offered as to why the Clean Water Act precludes review.

Ultimately, the Court held that “there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review—even judicial review of the question whether the regulated party is within the EPA’s jurisdiction.” The Court concluded “that the compliance order in this case is final agency action for which there is no adequate remedy other than APA review, and the Clean Water Act does not preclude that review.”

For more information on wetland and Clean Water Act issues, please contact Miriam Villani or Jason Kaplan.

Posted by Miriam Villani

NYSDEC Proposes Regulations and Requirements for New and Existing Electric Generating Facilities

Environmental Law

 

The New York State Department of Environmental Conservation (“NYSDEC”) has announced two proposed regulations focused on new and expanding major electric generating facilities. The first regulation will establish a regulatory framework to analyze environmental justice issues with regard to the siting or expansion of major electric generating facilities. NYSDEC environmental justice efforts focus on improving the environment in communities, specifically minority and low-income communities, and addressing disproportionate adverse environmental impacts that may exist in those communities. The regulation will require applicants to review and evaluate whether the construction or operation of a facility will have a significant and disproportionate adverse environmental impact. “Under our proposed regulations, an applicant must undertake an environmental justice analysis if a proposed electric generating facility’s potential adverse environmental and public health impacts may affect an environmental justice area. Our proposed regulations are the first in the nation that seek to protect public health and the environment in overburdened communities,” NYSDEC Commissioner Martens said.

The second proposed regulation will establish CO2 emission limits for proposed new major electric generating facilities with a generating capacity of at least 25 megawatts, or existing facilities increasing capacity by at least 25 megawatts. The objective is to lower greenhouse gas emissions and further reduce the carbon footprint of New York’s power sector. For the first time, the proposed regulation will set specific limits on the allowable CO2 emission rate of new and expanding power plants. This rule will make New York State a leader in establishing CO2 performance standards for new and expanding electric generating facilities. Establishing such limits will force innovation and development to reduce CO2 emissions, as well as reduce New York’s impact on global climate change.

For more information on environmental justice issues and regulations of new and existing electric generating facilities, please contact Miriam Villani or Jason Kaplan.

Posted by Miriam Villani