Articles By Timothy Lambrecht

Winter is coming and it is time to inspect your fuel oil tank.

The weather is getting cooler, which means that for the nearly two million homes in New York heated by fuel oil, the first delivery of the season may be on the way soon.  My colleague and I represent some home fuel delivery companies and I can tell you that if you live in one of these homes heated by fuel oil, this is the time to inspect your tank or–better yet–have a professional inspection service inspect it for you.  Few things are worse for homeowners than getting a fuel delivery and discovering that your fuel storage tank has failed.  Cleanups can be costly, cause harm to the environment, take a long time to complete and just generally be the source of many a headache.  As the saying goes, an ounce of prevention is worth a pound of cure.

So what are some telltale signs of concern that your fuel oil tank may have issues?  The New York State Department of Environmental Conservation, or NYSDEC, puts out a good press release every few years (https://dec.ny.gov/press/114846.html) advising homeowners what to look for when they inspect their tanks:

For aboveground storage tanks (ASTs), which are common in basements, NYSDEC says that homeowners should look for:

  • Bent, rusty, or wobbly tank legs or tank located on an unstable foundation.
  • Signs of rust, weeps, wet spots, or excessive dents on the tank’s surface.
  • Drips or any signs of leaks around the oil filter or valves.
  • Fuel oil lines not covered in a protective casing – even if under concrete.
  • Overhanging leaves where snow and ice could fall onto the tank.
  • Stains on ground or strong oil odor around the tank location.
  • Browning, dying or loss of vegetation around the tank location.
  • Silent overfill whistle while tank is being filled – ask fuel delivery person.
  • Clogged or restricted tank vent due to snow, ice or insect nests.
  • Signs of spills around fill pipe or vent pipe.
  • Improperly sized vent pipes.
  • Cracked, stuck or frozen fuel level gauge or signs of fuel around it.

Some of these things you may be able to observe yourself, while others probably require a professional assessment.  In any case, whoever is doing the inspecting, these signs are common indicators that you may have a problem with your fuel tank—and while, say, a strong odor of fuel or surficial staining may be more of a sign of a problem than areas where snow or ice can gather, I can tell you, from firsthand experience, that a heavy icicle falling on a fuel line can do lots of damage.  It is surprising, sometimes, how a hole or fracture no bigger than a part of a dime can cause a sizeable leak.

If you have an underground storage tank (UST), NYSDEC asks you to pay attention to these signs:

  • Water in the tank.
  • Oil or oil sheen in your basement sump or French drain.
  • Silent overfill whistle while tank is being filled.
  • Clogged or restricted tank vent due to snow, ice or insect nests.
  • Signs of spills around fill pipe or vent pipe.
  • Well water has strange tastes or smells.
  • Complaints from neighbors of fuel oil smells.
  • Using more than normal amount of fuel.

If you inspect your AST or UST and find one or more of these signs above, you should strongly consider calling a professional tank service to see if your tank needs to be replaced.  Keep in mind that if you know of a defect in a tank, and that defect leads to an oil spill, you can be held liable as a discharger under New York’s Oil Spill Act because you failed to take the actions necessary to fix the problem.  Cleanups commonly run in the tens of thousands of dollars and sometimes are even more costly.  I’ve worked on many cases, including ones where the fuel tank owner wished he paid more attention to the condition of his tank before there was a spill.

Finally, if you do see spill, make sure you report it, right way to the NYSDEC Spill Hotline at 1-800-457-7362.

Picture: www.improvenet.com

Love Canal: 40 Years Ago this Summer

It may be hard to believe, but the anniversary of one of the seminal events in environmental history turned 40 this summer.  For the past four decades, Love Canal has been known as one of the most significant environmental disasters in U.S. history.  The Love Canal neighborhood, located in Niagara Falls, New York, was home to an unregulated 70-acre landfill, filled with approximately 21,000 tons of chemicals and hazardous wastes, after the Hooker Chemical Company disposed large quantities of its wastes in an abandoned canal there from 1942 to 1953.  Yet, as much as it was an environmental disaster, Love Canal also was the impetus behind one of the most important environmental laws ever created: the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), which we now call Superfund.

Niagara Falls was a booming city in the 1950s.  Land was needed for development, including schools—and this land included the Love Canal landfill.

By the 1960s, Love Canal residents noticed the strange odors and wastes that began to bubble up into backyards and cellars.  There were reports of significant health issues, including miscarriages and birth defects.  By 1978, the problem became too great to ignore and President Jimmy Carter issued the first of two emergency declarations to address what had become evident was a major environmental problem.  President Carter tapped into federal funds, and ordered the Federal Disaster Assistance Agency, the predecessor to FEMA, to help Niagara Falls cleanup the Love Canal site.  It was the first time in American history that emergency disaster funds were used for a situation other than a natural disaster.  In all, 950 families were evacuated from a 10 square-block area surrounding Love Canal.  More than 80 industrial chemicals, including heavy metals, pesticides, and dioxins, were present at the site.

In response to Love Canal, Congress enacted CERCLA in 1980 and gave birth to the Superfund program.  Superfund continues to this day as one of the best legal environmental tools to clean up contaminated sites and address threats to public health and the environment.  Many contaminated sites across America have been cleaned up as a result of the Superfund program.

As for Love Canal itself, its transformation has been nothing short of remarkable.  After many years of remedial cleanup, in 2004, the U.S. Environmental Protection Agency (“EPA”) deleted the Love Canal site from its National Priorities List of Superfund sites.  Groundwater as a pathway for contaminants remains a possible issue, so the agency and the New York Department of Environmental Conservation (“NYSDEC”) installed over 100 wells to gather and monitor groundwater data.  So far, the data shows that the remedy in place—a leachate collection system, barrier drain, landfill cap—is working properly.  Today, Love Canal is considered clean enough that some parts of the neighborhood have new homeowners.  By EPA’s estimate, over 260 homes have been deemed safe, rehabilitated and sold to new and even returning residents to the Love Canal neighborhood.

 

Picture: www.youtube.com

NY-Sun Solarize Initiative Update

solar_panels2

One of Governor Cuomo’s chief environmental goals is the “50 by 30” initiative, which aims for 50% of the State’s electricity production to come from renewable resources by 2030.  New York joined California in setting this target in 2016.

The most common renewable energy resources in the State are hydro, wind and solar.  Solar energy currently is the least common among these, but the State attempted to give it a boost by implementing the NY-Sun Solarize Initiative. 

NY-Sun is a public-private partnership, launched in 2014 and administered by NYSERDA, the New York State Energy & Research Development Authority.  The program helps makes solar energy more accessible to New Yorkers.  Its goal “is to help make it possible for New Yorkers to choose clean energy while lowering their energy costs.”

How does it work?  It does through several ways.

  • It offers incentives and financing for residents and businesses to make solar energy a more affordable option.
  • It provides residents information needed about solar energy.
  • It provides local governments training, tools, and assistance to help them “identify opportunities, mitigate barriers, and create solar programs.”
  • It seeks to expand access to residents to participate in community solar projects.

On May 23, 2018, the Governor announced that over 2,400 solar projects have been installed or are in development in communities throughout the State and that the State has provided nearly $830,000 in technical and marketing support to support the initiatives through its first three campaigns, each of which lasts roughly six to nine months.  As the NYSERDA explains, the campaigns are managed by partnerships comprising “community officials, elected officials, municipalities and businesses.”

The power of these partnerships is that they “help simplify the procurement and installation of solar panels, and obtain discounts through aggregated purchases.”  Governor Cuomo announced that to date, these campaigns have saved residents $3.6 million in upfront purchase costs, for an average savings of $1,476 per installation.

By the State’s calculation, these projects total 19.47 MW of installed solar, which provides enough power to roughly 3,200 homes per year.

Picture: www.proudgreenhome.com

Wetlands: Part Four. Applying for a Section 404 Permit.

Wetlands IV

I’ve discussed the regulation of wetlands in my past blog entries. With this one, let’s talk about the application process for a permit under Section 404 of the Clean Water Act (“CWA”).

As discussed before, the CWA authorizes the U.S. Army Corps of Engineers (“ACOE”) to regulate the discharge of dredged or fill material into waters of the United States. Consequently, the ACOE requires a permit for the discharge of dredged or fill material in these waters under Section 404.  Keep in mind that waters of the United States is a fairly broad term.  It includes navigable waters and all their tributaries, adjacent wetlands and other waters or wetlands where degradation or destruction could affect interstate or foreign commerce.

The ACOE encourages permit applicants to contact it early in the project planning stage for wetland delineation requirements. It also encourages applicants to work on the 404 permit application concurrently with any other required state or local permit applications to avoid unnecessary duplication of effort and unforeseen time delays and that’s pretty sage advice.

I discussed the difference between individual and general permits previously. Let’s assume that an applicant needs an individual permit from the ACOE under Section 404.  Let’s assume that the applicant has the ACOE ENG Form 4345 application, that is has a consultant to help fill out that form and that it had its pre-application meeting with the ACOE.  As a practical matter, how does the applicant begin the application?

The first thing it needs to do is delineate any potentially affected wetlands on its application. To do that, the applicant should prepare a detailed surveyed site plan of property with existing contours.  It should stake out a field delineation of waters and wetlands and plot the limits of these waters and wetlands on surveyed site plan.  Once that is done, it should request the ACOE to verify these jurisdictional limits.  Once verified and the wetlands are in place, the applicant can draw the footprint of its project and limits of all fill to be placed in waters and wetlands.

When the applicant is doing its field delineation, it should gather preliminary data to support an estimate of the functions and values of any waters and wetlands that are likely to be impacted by its project. For instance, the applicant will look at whether the project will affect shoreline stabilization, wildlife habitat or recreational activities.  It will look at whether any endangered species might be affected and consider other wetland functions and values, including:

Groundwater recharge/discharge

  • Flood flow alteration
  • Fish and shellfish habitat
  • Sediment/toxicant retention
  • Nutrient removal
  • Production export
  • Educational scientific value
  • Uniqueness/heritage
  • Visual Quality/Aesthetics

A proper analysis addresses at least these wetland functions and values and others may be included based on professional judgement.

The ACOE determines the “basic project purpose,” after which the applicant must analyze practicable alternatives—if any exist—to avoid discharging fill or dredges to any recognized wetlands. The ACOE generally analyzes potential off-site alternatives first that could completely avoid any impact on the delineated wetlands.  If none are practical, it next looks at whether any on-site project modification could avoid and minimize wetland impacts.  Finally, if neither of those options works and the impact is deemed unavoidable, the ACOE considers what compensatory mitigation could replace the functions identified in the values assessment.  As the ACOE explains it, it prioritizes avoiding impacts altogether where possible, minimizing them when that is not an option, and finally compensating when the impacts are unavoidable.

Project modifications to avoid unnecessary wetland filling can be difficult to implement or costly. The silver lining is that sometimes the modification may result in enough of a reduced wetland impact that it may qualify the project for a general permit (e.g., nationwide or regional).  When that happens, the ACOE can expedite its permit review because the impact expected is minimal.

The ACOE begins evaluating an application when it receives all the information it requires. It acknowledges receipt and assigns a number to the applicant’s project. The decision whether to grant or deny a permit is based, in part, on a public interest review of the probable impact of the proposed activity and its intended use.  When a public notice is required, the ACOE’s review considers any comments received and any other relevant factors.  It then makes what is called a section 404(b)(1) guidelines determination, which is designed to avoid unnecessary filling of waters and wetlands.

In evaluating the application, the ACOE conducts a cost-benefit analysis, which considers impacts the project might have on items like conservation, navigation, economics, shore erosion and accretion, aesthetics and recreation, among others factors. It will look at the balance between considerations of private ownership versus general environmental concerns, and so forth.  Sometimes, where a project requires dredging and disposal of marine sediment, the ACOE may require sediment sampling.  When it has enough information, and following any public hearing, it reaches a determination on the permit application.

Reducing it to its basics, the application process includes these steps:

  •  There is a pre-application meeting between the ACOE and the applicant.
  •  The Applicant submits an ENG Form 4345 or equivalent joint state/federal application to the appropriate regional ACOE office.
  •  The ACOE receives the application and assigns the applicant a unique identification number.
  •  If the ACOE needs more information with the application, it notifies the applicant.
  • The ACOE issues a public notice issued within 15 days of receiving all of the required information. This notice seeks comments from the general public, adjacent property owners, interested groups and individuals, local agencies, state agencies, and federal agencies.
  • There is a comment period, typically consisting of 30 days, depending upon the nature of activity at issue.
  • The ACOE conducts its 404(b)(1) determination.
  • The ACOE conducts a Public Interest Review, after which is allows the applicant to respond to public comments.
  • Depending how the review goes, the ACOE may ask the applicant to provide additional information.
  • The ACOE considers all comments and the applicant’s responses.
  • If the ACOE determines a public hearing is necessary, it is held.
  • Finally, the ACOE makes its decision on the application.

The simpler the project and the less of an impact it presents, the more likely that the applicant will get a favorable and timely determination. Not surprisingly, though, this process can take time with more involved permits.  It can be a back and forth process with the ACOE requiring negotiations and additional documentation.  For these kinds of permits, you might consider legal counsel.

 

Photo: lookfordiagnosis.com

Wetlands: Part Three. Federal Regulation of Wetlands.

Wetlands Part III

My last blog entry discussed New York’s regulation of wetlands.  I was going to discuss permit application process with this entry, but after some feedback, I thought I should discuss federal regulation of wetlands instead.

As I mentioned earlier, wetlands are protected under Section 404 of the Clean Water Act (“CWA”), which was implemented more than 45 years ago.  It regulates discharges of dredged or fill material into waters of the United States, including wetlands.  As a general rule, Section 404 prohibits discharges of dredged or fill material if:

  • a practicable alternative exists that is less damaging to the aquatic environment; or
  • the nation’s waters would be significantly degraded.

In certain circumstances, discharges of dredged material or fill may be allowed under the CWA.  To address this issue, Section 404 sets up a permit requirement and review process.  If a developer reasonably needs to discharge dredged or fill material into waters of the United States, then that developer may be able to get a permit under Section 404 permitting it to do so under certain defined conditions.

Many kinds of projects might require a Section 404 permit.  The most common might be water infrastructure projects, like dams, docks and levees, as well as other infrastructure projects, like bridges and roads.

There are two kinds of permits under Section 404: individual and general.  These are very different kinds of permits with very different purposes.  An individual permit has the ability to hold up a project for some time while its merits are reviewed.  A general permit, on the other hand, can help expedite a project.  So what’s the difference between the two?

Individual permits are site specific.  They cover activities that have potentially significant impacts at a site.  U.S. Army Corps of Engineers (“ACOE”) reviews and evaluates these permits under the criteria set forth in the Section 404(b)(1) guidelines, which are created by the U.S. Environmental Protection Agency (“EPA”).  This review process can take time.

General permits, on the other hand, are not site specific.  They are issued on a national, regional, or state basis and cover certain categories of activities that are pre-determined to have only minimal adverse effects.  A general permit expedites the process because it eliminates the need for individual review.  It will be granted as long as conditions for the general permit are met.

Several federal agencies play a role in wetland regulation and protection and the roles they play are different.  The most active are ACOE, EPA and U.S. Fish and Wildlife Service (“FWS”).  Let me end this entry by describing what role each agency plays.

  • ACOE oversees wetlands with regard to navigation and water supply. It administers most of the wetlands protections program.  It reviews and issues determinations on Section 404 permit applications, develops wetlands policy and guidance documents and enforces permit provisions.
  • EPA generally protects wetlands from pollution. Among other things, it develops and interprets policy, guidance, and environmental criteria used in evaluating permit applications and reviews comments made on these applications.
  • FWS manages fish and wildlife, including residing in wetlands. It evaluates impacts on fish and wildlife from federal projects, including ones subject to the requirements of Section 404.

Let’s discuss the permit application process in my next entry.

 

Picture: www.stocktongov.com

 

Wetlands: Part Two. New York State Regulation of Wetlands.

santapogue_creek_2

My last blog entry discussed what wetlands are and why they are so important.  This blog entry talks about how they are regulated in New York State.

Wetlands are regulated by State and Federal law.   Federally, wetlands are protected by the U.S. Army Corps of Engineers (“ACOE”) under Section 404 of the Clean Water Act. In New York, they are protected under the Freshwater Wetlands Act (“FWA”) of 1975.  The implementing regulations of the FWA are at 6 N.Y.C.R.R. Parts 663 – 665.

The NYS Department of Environmental Conservation (“DEC”) regulates freshwater wetlands “to preserve, protect and conserve” them and their benefits.  DEC classifies them at Part 664.5 into four categories: I, II, III or IV.  Class I wetlands are the most valuable.  They often feature habitat of endangered or threatened species and, therefore, are the most protected.  Class IV are the least valuable and least protected.

Not every wetland is regulated under State law.  To be protected, a freshwater wetland must be 12.4 acres or larger, except in the Adirondack Park, where a lower threshold applies.  Smaller wetlands may be protected, too, but only if they are considered of unusual local importance.  Around every wetland is an “adjacent area” of 100 feet.  This adjacent area also is regulated to provide protection for the wetland.

Basically, DEC regulates certain activities in freshwater wetlands to prevent or mitigate impairment of wetland functions.  The amount of regulation turns on the nature of the activity and its potential effect on a wetland.

For instance, activities like normal agricultural practices, harvesting of natural products and recreational activities (fishing, hunting, trapping, hiking, swimming, picnicking, or firewood collection) or routine maintenance (e.g., dock repair) are exempt from regulation.  More invasive activities, which can adversely impact a freshwater wetland, are regulated.  These activities typically include actions like construction, excavation, placement of fill, drainage, clear-cutting and application of pesticides and require a permit under the FWA.

If you plan to engage in a regulated activity and suspect you are near a regulated wetland, you need to know if you must have a permit.  One way to find out is to review the DEC’s wetland maps and find your property.  Check whether it is in, near or adjacent to a protected wetland. Remember that not all wetlands are protected by DEC, but most wetlands will come under the jurisdiction of the ACOE, whether protected by DEC or not.

If your property has a protected wetland on or near it, or your project looks like it comes within the area adjacent to the wetland, you may want to contact the DEC Regional Office where the property is located and request DEC to visit your site and mark the wetland boundary.  You can hire a private consultant as well, but there likely will be a fee.

If your project involves a regulated activity, and it is within a freshwater wetland area, you will need a permit from DEC.  Essentially, DEC’s permit standards require that impacts to wetlands be avoided and minimized, where possible.  If the activity you propose will not seriously affect the wetland, then absent extenuating circumstances, DEC likely will issue a permit, possibly with various conditions.  If your proposed activity will seriously affect the wetland, the benefits gained by allowing the action to occur must outweigh the wetland benefits lost before a permit can be issued.  DEC often requires compensatory mitigation for significant impacts to wetlands before a permit can issue, such as creating or restoring wetlands to replace the benefits lost by the proposed project’s impact on the nearby wetland.

Getting a permit can be a tricky thing.  In my next blog entry, I’ll discuss the permit application process.

 

Picture: www.lindenhurst-village.com

 

Wetlands: Part One. What are they and why are they so important?

Wetlands

Wetlands: Part One.  What are they and why are they so important?

Our environmental work for clients often includes issues related to wetlands, yet many people do not know what they are, why they are so important or how they are regulated.  This blog entry talks about what wetlands are and the crucial role they play in the environment.

So what, exactly, is a wetland?  In our common experience, wetlands might be called swamps or marshes or even bogs.  Basically, wetlands are transition areas between uplands and aquatic habitats.  While wetlands vary widely depending on geography, there are two general categories: tidal wetlands and non-tidal wetlands.  Tidal wetlands are along the coast and non-tidal wetlands are inland.

Does the presence of standing water mean that an area is a wetland?  Maybe.  The U.S. Environmental Protection Agency explains that “wetlands are areas where water covers the soil, or is present either at or near the surface of the soil all year or for varying periods of time during the year, including during the growing season.”  Note that standing water may not be present year round in a wetland—so if you do not see standing water in a possible wetland area, this does not mean the area is not a wetland.  Some wetlands have standing water only during certain times of the year.  This is a crucial fact to keep in mind before disturbing any area that may be located in a possible wetland.

Wetlands indisputably play a crucial role in the environment.  The New York State Department of Environmental Conservation, which enforces state wetlands regulations, identifies six critical roles that wetlands provide:

  • Flood and Storm Water Control

This is one of the more important roles that wetlands play.  Wetlands mitigate flood and storm water flow by absorbing, storing, and slowing down the movement of rain and melt water.  They are a natural and important flood control measure.

  • Surface and Groundwater Protection

Wetlands help maintain base flow in streams and rivers and support ponds and lakes. They also can help recharge groundwater supplies.  Wetlands also improve water quality by absorbing pollutants and reducing turbidity.

  • Erosion Control

Because wetlands slow water velocity and filter sediments, they act as a natural form of erosion control for adjacent waterbodies.  They also buffer shorelines and agricultural soils from water erosion.

  • Pollution Treatment and Nutrient Cycling

Wetlands are natural filters of sorts.  They cleanse water by filtering out natural and many manmade pollutants, which are then broken down or immobilized.  They also break down organic materials, which are recycled back into the environment, where they support the food chain.

  • Fish and Wildlife Habitat

Wetlands are a critically important habitat for fish and wildlife.  Many species—including endangered species—use wetlands for feeding, nesting, spawning, resting and cover.  Wetlands help achieve and foster this biodiversity.

  • Public Enjoyment

Wetlands provide the opportunity for public enjoyment and recreation, including hunting, fishing, boating, environmental education, interpretation and photography.

So knowing what wetlands are and how important they are to the environment, it should come as no surprise that wetlands are legally protected federally and by the state.  Just what those protections are—and how they might affect development—will be the topic of our next blog entry.

Picture: kepp.net

New York updates vapor intrusion guidance documents: what does this mean to me?

soil-vapor-intrusionFew people have heard of vapor intrusion, so what, exactly, is it?  In simple terms, vapor intrusion is a process by which subsurface contamination moves into the indoor air space of an enclosed area above it.  It happens when volatile, vapor-forming chemicals move from a subsurface source—say contaminated soils or groundwater—through cracks in foundations or other pathways into the indoor air of a building located above that soil.  In many instances, these vapor intrusions may not be noticeable.  In others, they are: volatile chemicals readily evaporate at room temperature into the air, where you can sometimes smell it.  In a worst case scenario, these vapors can accumulate and pose a risk to property or even human health.

Because of the potential risks posed by vapor intrusions, the New York State Department of Health (“NYSDOH”) issued its Final Guidance for Evaluating Soil Vapor Intrusion in the State of New York (“Soil Vapor Guidance”), dated October 2006, which it has been updating since its issuance.  The Soil Vapor Guidance is not a binding regulation, but instead offers a recommended methodology for evaluating soil vapor intrusion at a site.  It explains methods of sampling and investigative techniques and recommends actions depending on findings.

This past May, NYSDOH issued its latest revision to the Soil Vapor Guidance.  It assigned eight common volatile chemicals to three newly revised and renamed Soil Vapor/Indoor Air Decision Matrices.  The matrices offer recommendations on remediating vapor intrusions for these volatile chemicals, including Trichloroethene (“TCE”), a chemical commonly used as an industrial solvent and one that often appears at contaminated sites:

https://www.health.ny.gov/environmental/indoors/vapor_intrusion/docs/svi_decision_matrices_abc.pdf

Based on the level of contaminant present, the matrices recommend several courses of action, from no action, to monitoring to mitigation.

Should vapor intrusion concern you?  The short answer is it depends, but you should at least be aware of the issue.

Keep in mind that the presence of vapor intrusions does not automatically equate to health risk.  Whether a person faces potentially harmful effects from vapor intrusions depends on several things, including his sensitivity to the chemical, how long and often he has been inhaling it, and the how toxic the chemical is.

That said, if you are looking to purchase a property with a legacy of industrial use, including the use of volatile chemicals like TCE, then you probably want to understand what any risks for vapor intrusion are before making any purchase.  Understanding the risk of soil vapor intrusions should be part of your pre-purchase due diligence—especially if there is a risk that at some point you might get tagged with those cleanup costs.

Similarly, if you own a building where volatile chemicals were used, employees can smell chemicals, and there are cracks or conduits in a concrete floor, you may want to investigate to see if vapor intrusion is a concern.  The Soil Vapor Guidance and new matrices give guidance on how to proceed.

chemical-vapor-migration

Every case turns on its own set of facts, but if you think that vapor intrusion might be concern, a good environmental consultant is the place to start.  Sometimes you may want legal advice, too.  If you feel you need environmental counsel, feel free to contact Tim Lambrecht, Esq. or Kevin Murphy, Esq. at the Wladis Law Firm.

 

 

 

HOW TO RESPOND TO A NOTICE OF VIOLATION

Stress

The New York State Department of Environmental Conservation (“NYSDEC”) issues Notices of Violation (“NOV”) to people and companies who it believes have violated New York’s Environmental Conservation Law (“ECL”) or its associated environmental regulations.  Typically, the NOV follows a citizen complaint and investigation into the complaint, so often times the NOV’s recipient is aware of its possibility.  In some instances, NYSDEC gives parties an opportunity to take corrective action after the investigation, with the NOV being withheld as long as the party follows through.  If you are the recipient of an NOV, or of a threatened NOV, what are some steps you should consider?

Treat the Matter Seriously.

Most parties who receive an NOV take it seriously.  The ones who get in the most trouble are the ones who ignore them.  Sticking your head in the sand like an ostrich and doing nothing is not going to make the problem go away.  In fact, it is pretty much a guaranteed way to make matters worse.  In some instances, the ECL calls for penalties of up to $15,000 per day for ongoing violations. In other instances, willful violations can constitute misdemeanors, calling for imprisonment of up to one year.  While those kinds of penalties are unlikely, they are possible—especially for parties who are non-responsive.  If you receive an NOV, don’t let it slip to the bottom of your to-do list.  Take it seriously.

Understand the NOV.

The NOV will describe the allegations against you.  It will cite the provisions of the ECL or regulations that NYSDEC believes have been violated and provide a short description of how it believes you have violated those provisions.  It will inform you of potential penalties.  It may provide you with copies of the laws or regulations it claims are violated.

Study these allegations carefully.  Just because you’ve been provided an NOV, does not mean that you have violated the law.  Sometimes NYSDEC is wrong.  Sometimes it does not have all the facts.  For that reason, NYSDEC allows you the opportunity to furnish materials for your defense and to request an informal conference with NYSDEC to discuss the allegations.  Remember, however, that any information you provide can be used against you in a civil or criminal enforcement proceeding.

Get Prepared.

At some point, you will be talking with NYSDEC to resolve the NOV.  In some instances, where the stakes are minor, maybe you feel comfortable doing it yourself—but more often than not, you will want experienced environmental counsel.  Remember that an NOV can mean more than fines or penalties.  It can mean a criminal investigation.  It can lead to a permit revocation or permit denial down the road.  If your business relies on that permit to operate, is that something you really want to risk without having the advice of counsel?

You or your counsel should thoroughly understand the provisions you’ve been charged with violating.  Is there a potential defense?  What records do you have that can show NYSDEC that it is mistaken, maybe in part if not in whole?  If you are liable for a violation, maybe you can show mitigating circumstances?  Or maybe you have no real defense?  You need to know the answer to these questions before you meet with NYSDEC to discuss the NOV.

Be prepared to negotiate.

It may be that you have a complete defense to the NOV and are willing to take the matter to hearing, if NYSDEC will not dismiss the NOV.  That happens.  You may feel you have no other choice.  If so, you want experienced counsel by your side because the risks are high.

But that situation is pretty uncommon.  Most NOVs are resolved through negotiations with NYSDEC.  The reason why is simple: both NYSDEC and you want the same thing.  NYSDEC wants to ensure that you and your company comply with applicable laws and regulations.  It wants to be protective of the environment and the state’s citizens.  You also want to be in compliance and, if there has been a violation, correct it and ensure you do not have to deal with the issue again.  The question is how to you get there and how do you minimize or maybe even eliminate any penalty?

Where it makes sense, following the investigation, NYSDEC often times will provide guidance on what needs to be corrected and, as long as that happens, will hold off on an NOV.  If the violations are not grave or too serious—and a party is responsive, has a good history of compliance, and is working with counsel to help facilitate corrective measures—NYSDEC typically is willing to be more lenient.  But the converse is also true: if the violations are severe and public health is at stake or the party has a history of violations and non-compliance, or was given an opportunity to take corrective action and failed, then NYSDEC is much less likely to be lenient.  The role of environmental counsel can be very important here.

Follow through.

Finally, when you resolve the NOV, follow through on what you promise to do.  If your company needs to take protective measures by a deadline, do it—and if it looks like you cannot, let NYSDEC know enough in advance that you are trying but need an extension.  You do not want to be tagged as a non-compliant party or a serial violator.  Also, take the opportunity to educate yourself and your workers about the law, what is required, what went wrong and how to avoid similar problems in the future.  An ounce of prevention is worth a pound of cure: with good guidance, you probably can avoid the cost and aggravation of a future NOV.

If you receive an NOV, it can be an intimidating experience—but environmental counsel can help you through it.  If you feel you need environmental counsel, feel free to contact Tim Lambrecht, Esq. or Kevin Murphy, Esq. at the Wladis Law Firm.

 

Picture Credit:  www.boldsky.com

Environmental Due Diligence: Do Your Homework before You Buy

for-saleEvery now and then we’re visited by a new client who discovers he bought contaminated property and needs legal help.  In almost all of these cases, our client bought the property without first getting advice from an environmental lawyer or conducting adequate environmental due diligence on the property.  We’re always glad to help, but the frustrating part is that if that client met with us before buying the property, we could have worked with him to help manage the risks and potential liabilities that come with the purchase of potentially contaminated properties.

So what is environmental due diligence?  In simple terms, it is a process by which trained professionals assess a property for any potential risk of environmental contamination.  Most lenders require environmental due diligence be completed before they will issue commercial loans, but those who are self-funding purchases should strongly consider undertaking this due diligence, also.

The process typically begins with a Phase I Environmental Site Assessment.  The Phase I assesses the current and historical uses of a property and examines local, state and federal records to identify past uses the property that may present an environmental risk.  Often times, this assessment is sufficient for prospective buyers and their lenders.  Sometimes properties will require a Phase II Environmental Site Assessment, which is a more intrusive assessment that includes soil and groundwater sampling from areas on a property that are deemed most likely to have contamination.  The depth and scope of the process typically turns on the property that’s examined.  A property that once had a gasoline service station probably will require a Phase II because of the higher likelihood of contamination.  A commercial property with office space and a satisfactory Phase I assessment typically would not.

There are major benefits to conducting environmental due diligence prior to a purchase.  Due diligence can uncover actual or suspected contamination, which may lead the prospective buyer to cancel a purchase, renegotiate the purchase price or—with the assistance of a knowledgeable environmental lawyer—negotiate protections in the purchase agreement, or determine a property’s brownfield eligibility to assist with cleanup costs.  Under the All Appropriate Inquiries rule, a properly managed assessment can grant protection for bona fide prospective purchasers from CERCLA liability, even if contamination is found after the property is purchased.  That is a potentially significant measure of protection as site cleanups can be very costly.

If you are looking into purchasing a property and need legal advice, our firm is glad to meet with you to discuss the due diligence process and the protection it affords.

Photo: www.susanfidler.com