USEPA Enforcement Alert: The USEPA Lead Paint Renovation, Repair and Painting Rule

The October, 2018 USEPA Enforcement Alert opens by asking the following question: “Do you know that if you are not lead-safe certified, disturbing just six square feet of a lead-based paint covered surface could cost you fines and even jail time?”

In 2018, USEPA announced 141 federal enforcement actions to protect the public, particularly children, from exposure to lead-based paint. Among those subject to recent enforcement actions, including criminal prosecutions for some, have been renovation companies, including ones that broadcast its violations to a national audience on the reality television program Fixer Upper, realtors who failed to provide required lead paint hazard warning notices, and the New York City Housing Authority.

USEPA inspectors are active in Central New York conducting inspections and requiring the production of the detailed paperwork required by the Renovation, Repair and Painting Rule (the “RRP Rule”). Are you prepared to be inspected?

If you work in the lead paint remediation field, make sure your certification has not lapsed. More than half of USEPA enforcement actions involve violations of the certification requirements, including lapsed certifications. Make sure you understand the RRP Rules; for example, private homes only occupied by people at least 62 years of age are not exempt from the RRP Rule. The age exemption only applies to designated housing for the elderly. Lastly, if you worked as an independent contractor on jobs that initiated via a Lowe’s Home Centers, LLC store referral, that may serve as a trigger for a USEPA inspection.

If you are a property or home owner, understand that EPA’s RRP Rule requires that firms performing renovation, repair, and painting projects that disturb lead-based paint in homes, child care facilities, and pre-schools built before 1978 have their firm certified by EPA (or an EPA authorized state), use certified renovators who are trained by EPA-approved training providers, and follow lead-safe work practices.

To understand the scope of the problem, HUD’s National Survey of lead and Allergens in Housing estimated that 38 million permanently occupied housing units (40% of all housing units) in the United States contain some lead-based paint that was applied before the residential use of lead-based paint was banned in 1978. “Housing units” include single-family homes, manufactured housing, and multi-unit dwellings like apartments. Vacant housing, group quarters (e.g., prisons, hospitals, and dormitories), hotels, motels, and other short-term housing, military bases, and housing where children are not permitted to live (e.g., housing designated exclusively for the elderly and those with zero-bedroom units) are not included in this number. More information on these statistics is available from HUD.

Question: What does the RRP Rule require?

Answer:

The RRP Rule requires that renovators are trained in the use of lead safe work practices, that renovators and firms be certified, that providers of renovation training be accredited, and that renovators follow specific work practice standards. Additional information on this rule can be found at http://www2.epa.gov/lead/renovation-repair-and-painting-program.

Question: Who is covered by the RRP Rule?

Answer:

The rule applies to all firms and individuals who are paid to perform renovation, repair, and painting projects that disturb paint in pre-1978 housing and child-occupied facilities. This includes home improvement contractors, maintenance workers, painters and other specialty trades.

 

Kevin C. Murphy is a member of the Wladis Law Firm, P.C., located in Syracuse, New York. Should you be confronted with lead paint or lead paint renovation issues, please feel free to contact Attorney Murphy or Attorney Timothy Lambrecht of the Wladis Law Firm to determine if we can be of assistance to you.

 

Picture: www.leadsafelist.com

Kevin Murphy

Kevin C. Murphy concentrates his practice in the areas of environmental compliance and litigation; environmental and white-collar criminal defense, and complex litigation matters. Mr. Murphy is a graduate of the University of Virginia School of Law and a former senior trial attorney with both the Kings County (NY) District Attorney’s office and the U.S. Department of Justice Environmental Crimes Section in Washington, D.C. He previously taught a seminar on environmental criminal enforcement at the Syracuse University School of Law and has been listed in The Best Lawyers in America.

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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 a spill, make sure you report it, right away to the NYSDEC Spill Hotline at 1-800-457-7362.

Picture: www.maine.gov

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.

 

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NYS Energy Efficiency Goals

In 2013 the Governor rolled out the Reforming the Energy Vision (“REV”) program, which broadly set forth the state’s energy policies and goals. Two of the central goals laid out in the REV were to have 50 percent of the state’s electricity come from renewable sources and to reduce greenhouse gas emissions to 60 percent of 1990 levels. These are in addition to commitments the state made as a part of its membership in the 17 state United States Climate Alliance, a coalition of states determined to combat climate change. Currently only about 25 percent of the state’s electricity is derived from renewable sources.

Need for Energy Storage

One major obstacle to the widespread adoption of renewable energy resources have been their intermittent nature. This just means that they cannot produce electricity on demand. Taking two of the most widely known renewable sources for example: windmills do not generate electricity when the wind is not blowing and solar panels do not generate electricity when the sun is not shining. These facts put these energy sources at a disadvantage when compared to a coal or natural gas burning power plants which can produce more electricity whenever their operators decide to burn more fuel. Coupled with the inconsistent nature of electricity demand, (i.e. we tend to use a lot more electricity on hot summer days to power our air conditioners) much more widespread adoption of renewable energy sources cannot be achieved without overcoming this hurdle.

The Role of Energy Storage in New York

Enter large scale electricity storage. Currently the most common form of energy storage utilized in our electric grid is that of hydroelectric dams, which store gravitational potential energy in a reservoir, to be released whenever there is excess demand. However wind and solar electricity require a sophisticated battery to store the energy they produce. This burgeoning technology allows for excess electricity produced when the wind is blowing or the sun is shining to be saved for a time when there is more demand for electricity then is being produced. Famous technology company Tesla, who employs over 500 workers in their Western New York facility, is one of the world’s most prolific developers of these batteries, by some accounts installing half of the global stock since 2015. New York recognizes the need to invest in energy storage technology to achieve its renewable energy targets.

Goals

In 2017, New York became the fourth state to set a target for energy storage capacity. And in his 2018 State of the State address, the Governor publicly proclaimed a goal of 1.5 gigawatts of energy storage capacity by 2025. For context, that is enough to power about 450,000 homes. According to the state’s estimates, this would allow New Yorker to avoid over discharging a million metric tons of greenhouse gas emissions by 2025.

Incentivizing Battery Implementation

The New York State Energy Research and Development Authority (“NYSERDA”) has committed $260 million to energy storage investments. Last November Assembly Bill A06571 was enacted, creating the “Energy storage deployment program” with the goal of encouraging any economically feasible type of electricity storage that could potentially help New York reduce its greenhouse gas emissions. The implementation of this law includes things like using NYSERDA’s Green Bank to invest in this technology, incorporating storage into the approval criteria for renewable energy procurement requests, and reducing regulatory barriers to storage projects. One example of a regulatory barrier being removed was an order issued in April by the New York State Public Service Commission modifying the standardized interconnection requirements to allow energy storage units to connect with the grid more easily. To date, NYSERDA has provided funding for over 50 new storage systems in the state.

Roadmap

To further solidify its commitment to being a national leader in the electricity storage industry, the New York State Department of Public Service released a comprehensive Energy Storage Roadmap on June 21st. The intention of the Roadmap is to provide a “set of recommended near‐term policy, regulatory and programmatic actions to support energy storage deployment in New York State.” If the energy storage industry becomes as central to the world’s energy infrastructure as the state believes it will, New York may well be in good position to capitalize on this budding technology.

 

Picture: rev.ny.gov

 

NYSDEC Makes Major Update to State’s Environmental Quality Review Regulations

 

For the first time in more than 20 years, the State has made a major update to the State Environmental Quality Review Act (“SEQR”) regulations.  NYSDEC Commissioner Basil Seggos announced on June 28 that his agency adopted a rulemaking package with changes intended to preserve the integrity of the regulations and streamline the environmental review process.  The updates go into effect on January 1, 2019.

The changes are meant to encourage sustainable development and renewable energy development within the State.

According to the Commissioner’s announcement, the updates will expand the number of existing Type II SEQR actions.  That’s big news for those who deal with SEQR.  Type II actions are actions that are deemed not to have significant adverse impacts on the environment, or are actions that are statutorily exempted from SEQR review.  Unlike other potential actions, they do not require preparation of an environmental assessment form, a negative or positive declaration, or an environmental impact statement (“EIS”), all of which can take time to consider and prepare.

According to NYSDEC’s press release, updated Type II actions will include:

  • green infrastructure upgrades or retrofits;
  • installation of solar arrays on closed landfills, cleaned-up brownfield sites;
  • wastewater treatment facilities, sites zoned for industrial use, or solar canopies on residential and commercial parking facilities;
  • installation of solar arrays on an existing structure not listed on the National or State Register of Historic Places;
  • reuse of a residential or commercial structure, or structure containing mixed residential and commercial uses;
  • acquisition and dedication of parkland;
  • land transfers in connection with one, two or three family housing; and
  • construction and operation of certain anaerobic digesters at operating publicly owned landfills.

Clarifying that these actions are considered Type II helps streamline their implementation because they will not require further review under SEQR.

The updates also will modify thresholds for SEQR actions deemed more likely to require the preparation of an EIS and require scoping of an EIS.  Additionally, an EIS may require consideration of measures to avoid or reduce an action’s impact on climate change-induced conditions such as sea level rise and flooding.

NYSDEC states that the final rules will be available on its website and noticed in both the Environmental Notice Bulletin and the State Register on July 18.  The agency also expects to release an update to its popular SEQR Handbook and SEQR workbooks later this year and plans to provide training for lead agencies regarding the updates.

Picture: https://libraryguides.law.pace.edu

 

“Universal Wastes”

To Avoid Penalties Ensure they are Handled Correctly

To streamline environmental regulations for wastes generated by numerous sources in relatively small quantities, USEPA issued the Universal Waste Rule in 1995. This rule is designed to reduce the amount of hazardous waste in the municipal solid waste stream, to encourage the recycling and proper disposal of some common hazardous wastes and to reduce the regulatory burden on generators.

The New York Universal Waste Rule (UWR), 6 NYCRR Part 374-3, provides an alternate method for managing certain common types of hazardous wastes that otherwise would be subject to all applicable requirements of New York’s hazardous waste rules found at 6 NYCRR Parts 370 through 374 and 376. Handlers may choose to manage eligible wastes under the UWR, or under ordinary hazardous waste regulations.

In New York State the following hazardous wastes may be managed as Universal Waste (UW):

  1. Batteries, including lead/acid, lead, nickel-cadmium, silver, lithium or mercury.
  2. Certain pesticides that would otherwise be a hazardous waste.
  3. Thermostats and other mercury-containing equipment (MCE).
  4. Hazardous Lamps

Universal wastes are generated not only in the industrial settings usually associated with hazardous wastes, but also in a wide variety of other settings, including households, schools, office buildings, and medical facilities. Although handlers of universal wastes must meet less stringent standards for storing, transporting, and collecting wastes, the wastes must comply with full hazardous waste requirements for final recycling, treatment, or disposal. This approach helps to remove these wastes from municipal landfills and incinerators, providing stronger safeguards for public health and the environment.

Universal Waste Generators. Requirements include packaging in a way to minimize breakage; immediately cleaning up any leaks or spills; and properly labeling containers.

Universal Waste Transporters. Requirements include meeting applicable DOT standards; complying with record keeping and reporting requirements; and complying with applicable requirements of 6 NYCRR Part 364 if transporting more than 500 lbs. of total universal waste in any shipment. Common carriers can transport up to 500 lbs. of universal waste in any shipment.

 Destination Facilities. Destination facilities must comply with all applicable requirements of 6 NYCRR Parts 370 through 374-3 and 376, including notification of hazardous waste activity and obtaining a Part 373 (hazardous waste) permit, if applicable.

Answers to Common Questions

  1. How do I know if my lamps are hazardous?
    Because of their mercury content, most fluorescent lamps in current use are considered hazardous wastes when taken out of service for disposal. Other lamps that are commonly classified as hazardous waste due to the presence of mercury or lead include high-intensity discharge (HID), neon, mercury vapor, high pressure sodium, and metal halide lamps. If you want to know for sure, you can have them analyzed by a laboratory test called the “Toxicity Characteristic Leaching Procedure (TCLP).” Most major manufacturers are now producing a line of fluorescent lamps which they claim are non-hazardous low-mercury or “green end cap” lamps. When these bulbs are taken out of service, manufacturer’s data may be used to help determine if they are a hazardous waste.
  2. How do I handle low-mercury fluorescent lamps?
    Under Chapter 145, Laws of 2004, “Mercury-Added Consumer Products Law,” even low-mercury (green end cap) lamps are subject to certain management standards. Under this law, defined Small Businesses may discard of up to fifteen low-mercury lamps per calendar month. If the non-hazardous lamps are commingled with universal waste lamps, all of the waste is regulated as universal waste. The Department strongly encourages the recycling of any lamps containing mercury.
  3. Now that the Universal Waste Rule is available for hazardous waste lamps, must I use it?
    No, handlers of hazardous waste lamps may choose between traditional hazardous waste regulations and Universal Waste Rule standards. However, flip-flopping between the two sets to avoid meeting requirements of one or both regulations is not allowed. For example, both management scenarios include storage time limits. Flip-flopping between regulations will not extend storage time.

A Universal Waste Handler does one or more of the following: generates, receives, stores, accumulates, and/or sends Universal Waste. A Universal Waste Destination Facility treats, disposes of, or recycles Universal Waste. A Universal Waste Transporter is involved in the transportation of Universal Waste.

 

Kevin C. Murphy is a member of the Wladis Law Firm, P.C., located in Syracuse, New York. If you or your municipality operates a mulch processing facility or any other waste management facilities and have questions or need assistance in complying with new, amended or longstanding solid waste management regulations or any type of environmental compliance, permitting or enforcement issues, including the threat of a potential environmental criminal prosecution, please feel free to contact Attorney Murphy or Attorney Timothy Lambrecht of the Wladis Law Firm. Mr. Murphy previously served as a senior trial attorney with the U. S. Department of Justice Environmental Crimes Section and regularly represents clients in defending against alleged criminal violations of federal, state and local environmental laws.

Picture: convergencetraining.com

 

Kevin Murphy

Kevin C. Murphy concentrates his practice in the areas of environmental compliance and litigation; environmental and white-collar criminal defense, and complex litigation matters. Mr. Murphy is a graduate of the University of Virginia School of Law and a former senior trial attorney with both the Kings County (NY) District Attorney’s office and the U.S. Department of Justice Environmental Crimes Section in Washington, D.C. He previously taught a seminar on environmental criminal enforcement at the Syracuse University School of Law and has been listed in The Best Lawyers in America.

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“Universal Wastes”

To Avoid Penalties Ensure they are Handled Correctly

To streamline environmental regulations for wastes generated by numerous sources in relatively small quantities, USEPA issued the Universal Waste Rule in 1995. This rule is designed to reduce the amount of hazardous waste in the municipal solid waste stream, to encourage the recycling and proper disposal of some common hazardous wastes and to reduce the regulatory burden on generators.

The New York Universal Waste Rule (UWR), 6 NYCRR Part 374-3, provides an alternate method for managing certain common types of hazardous wastes that otherwise would be subject to all applicable requirements of New York’s hazardous waste rules found at 6 NYCRR Parts 370 through 374 and 376. Handlers may choose to manage eligible wastes under the UWR, or under ordinary hazardous waste regulations.

In New York State the following hazardous wastes may be managed as Universal Waste (UW):

  1. Batteries, including lead/acid, lead, nickel-cadmium, silver, lithium or mercury.
  2. Certain pesticides that would otherwise be a hazardous waste.
  3. Thermostats and other mercury-containing equipment (MCE).
  4. Hazardous Lamps

Universal wastes are generated not only in the industrial settings usually associated with hazardous wastes, but also in a wide variety of other settings, including households, schools, office buildings, and medical facilities. Although handlers of universal wastes must meet less stringent standards for storing, transporting, and collecting wastes, the wastes must comply with full hazardous waste requirements for final recycling, treatment, or disposal. This approach helps to remove these wastes from municipal landfills and incinerators, providing stronger safeguards for public health and the environment.

Universal Waste Generators. Requirements include packaging in a way to minimize breakage; immediately cleaning up any leaks or spills; and properly labeling containers.

Universal Waste Transporters. Requirements include meeting applicable DOT standards; complying with record keeping and reporting requirements; and complying with applicable requirements of 6 NYCRR Part 364 if transporting more than 500 lbs. of total universal waste in any shipment. Common carriers can transport up to 500 lbs. of universal waste in any shipment.

 Destination Facilities. Destination facilities must comply with all applicable requirements of 6 NYCRR Parts 370 through 374-3 and 376, including notification of hazardous waste activity and obtaining a Part 373 (hazardous waste) permit, if applicable.

Answers to Common Questions

  1. How do I know if my lamps are hazardous?
    Because of their mercury content, most fluorescent lamps in current use are considered hazardous wastes when taken out of service for disposal. Other lamps that are commonly classified as hazardous waste due to the presence of mercury or lead include high-intensity discharge (HID), neon, mercury vapor, high pressure sodium, and metal halide lamps. If you want to know for sure, you can have them analyzed by a laboratory test called the “Toxicity Characteristic Leaching Procedure (TCLP).” Most major manufacturers are now producing a line of fluorescent lamps which they claim are non-hazardous low-mercury or “green end cap” lamps. When these bulbs are taken out of service, manufacturer’s data may be used to help determine if they are a hazardous waste.
  2. How do I handle low-mercury fluorescent lamps?
    Under Chapter 145, Laws of 2004, “Mercury-Added Consumer Products Law,” even low-mercury (green end cap) lamps are subject to certain management standards. Under this law, defined Small Businesses may discard of up to fifteen low-mercury lamps per calendar month. If the non-hazardous lamps are commingled with universal waste lamps, all of the waste is regulated as universal waste. The Department strongly encourages the recycling of any lamps containing mercury.
  3. Now that the Universal Waste Rule is available for hazardous waste lamps, must I use it?
    No, handlers of hazardous waste lamps may choose between traditional hazardous waste regulations and Universal Waste Rule standards. However, flip-flopping between the two sets to avoid meeting requirements of one or both regulations is not allowed. For example, both management scenarios include storage time limits. Flip-flopping between regulations will not extend storage time.

A Universal Waste Handler does one or more of the following: generates, receives, stores, accumulates, and/or sends Universal Waste. A Universal Waste Destination Facility treats, disposes of, or recycles Universal Waste. A Universal Waste Transporter is involved in the transportation of Universal Waste.

 

Kevin C. Murphy is a member of the Wladis Law Firm, P.C., located in Syracuse, New York. If you or your municipality operates a mulch processing facility or any other waste management facilities and have questions or need assistance in complying with new, amended or longstanding solid waste management regulations or any type of environmental compliance, permitting or enforcement issues, including the threat of a potential environmental criminal prosecution, please feel free to contact Attorney Murphy or Attorney Timothy Lambrecht of the Wladis Law Firm. Mr. Murphy previously served as a senior trial attorney with the U. S. Department of Justice Environmental Crimes Section and regularly represents clients in defending against alleged criminal violations of federal, state and local environmental laws.

Picture: convergencetraining.com

 

Kevin Murphy

Kevin C. Murphy concentrates his practice in the areas of environmental compliance and litigation; environmental and white-collar criminal defense, and complex litigation matters. Mr. Murphy is a graduate of the University of Virginia School of Law and a former senior trial attorney with both the Kings County (NY) District Attorney’s office and the U.S. Department of Justice Environmental Crimes Section in Washington, D.C. He previously taught a seminar on environmental criminal enforcement at the Syracuse University School of Law and has been listed in The Best Lawyers in America.

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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

NYSDEC Issues Enforcement Discretion Letter Delaying the Implementation of Select Portions of the updated and revised Solid Waste Management Rules that took effect in 2017

 Waste-Management

A comprehensive revision to New York State’s solid waste regulations took effect on November 4, 2017.

On March 1, 2018, the NYSDEC formally issued an enforcement discretion letter that effectively rolls back the implementation of the new rules in four (4) specifically designated areas. The delay in enforcement will expire on May 3, 2019 or earlier, if amendment to the new rules are promulgated before that date.

The four areas of delayed enforcement involve:

1.   Storage Requirements for Regulated Medical Waste (RMW);

2.   Materials used in cement, concrete and asphalt pavement;

 3.   Waste tires used to secure tarpaulins on farms; and

 4.   Construction and demolition facility fill material sampling requirements

The components of the letter are as follows:

  1. Materials used in cement, concrete and asphalt pavement: The Department is utilizing its enforcement discretion to maximize the opportunities for recycling of concrete and asphalt by expanding the allowed storage of concrete and asphalt prior to reuse when the materials are under the control of their generator or the person responsible for the generation, such as a contractor. This directive also allows these readily recyclable materials to be transported without the need for a Part 364 waste transporter registration or permit. The utilization of enforcement discretion with respect to these materials will increase the opportunities for recycling and reduce the chance that readily recyclable materials will be disposed of before recycling opportunities are available.
  2. Waste tires used to secure tarpaulins on farms: This enforcement discretion directive allows more time for the Department to work with the regulated community to find solutions to problems associated with the use of tires at farms without negatively impacting the farms.
  3. Construction and demolition facility fill material sampling requirements: The transition requirements of the Part 360 Series would negatively impact some facilities that renewed or modified their permits before the deadline of May 3, 2019 by requiring sampling of residues and fill material which other facilities were not required to perform. This creates a situation where facilities that want to modify their permits early will not do so because the increased sampling costs are not borne by their competitors, creating an unbalanced marketplace. This directive corrects that potential imbalance by setting a standard implementation point when all facilities must begin sampling of these materials.
  4. Storage Requirements for Regulated Medical Waste (RMW): Containers for RMW in patient care areas should not be required to be removed for disposal before they are either full or begin to generate odors. The Part 360 Series sets a time limit for these containers in patient care areas that is problematic, especially for small generators such as dental offices. The department will exercise its enforcement discretion to allow in most cases the containers to be filled completely before they must be removed for disposal.

A link to the letter can be found at http://www.dec.ny.gov/regulations/81768.html.

Kevin C. Murphy is a member of the Wladis Law Firm, P.C., located in Syracuse, New York. If you or your municipality operates a mulch processing facility or any other waste management facilities and have questions or need assistance in complying with new, amended or longstanding solid waste management regulations or any type of environmental compliance, permitting or enforcement issues, including the threat of a potential environmental criminal prosecution, please feel free to contact Attorney Murphy or Attorney Timothy Lambrecht of the Wladis Law Firm. Mr. Murphy previously served as a senior trial attorney with the U. S. Department of Justice Environmental Crimes Section and regularly represents clients in defending against alleged criminal violations of federal, state and local environmental laws.

 

Picture: nationalyouthcouncil.org

 

 

Kevin Murphy

Kevin C. Murphy concentrates his practice in the areas of environmental compliance and litigation; environmental and white-collar criminal defense, and complex litigation matters. Mr. Murphy is a graduate of the University of Virginia School of Law and a former senior trial attorney with both the Kings County (NY) District Attorney’s office and the U.S. Department of Justice Environmental Crimes Section in Washington, D.C. He previously taught a seminar on environmental criminal enforcement at the Syracuse University School of Law and has been listed in The Best Lawyers in America.

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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