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.

 

 

 

Environmental Enforcement in 2017

Lake3

The Trump Administration has proposed the termination of many Obama administration environmental programs and initiatives and drastic cutbacks to the budget of the United States Environmental Protection Agency.

In response, state of New York Attorney General Schneiderman has stated, “President Trump’s budget cuts would cause untold – and perhaps irreparable – damage to New York’s rivers, lakes, and drinking water. Even before these massive cuts, EPA represents just two-tenths of one percent of the federal budget — yet it’s responsible for protecting our environment and public health. As I’ve made clear: if the Trump administration won’t meet its legal obligation to ensure basic access to a clean, safe, and healthy environment, I won’t hesitate to act to protect New Yorkers.”

Without knowing what will, in fact, happen, set out below is a summary of the most current data on the enforcement initiatives that were undertaken at the federal level nationwide and by one component of the state of New York’s enforcement agencies.

The United States Environmental Protection Agency reported the following results for fiscal year 2016:

  • More than $13.7 billion in investments by companies in actions and equipment to control pollution. In addition, a case against Volkswagen lodged in June and entered just after the end of fiscal year 2015 adds up to $14.7 billion to remedy Clean Air Act violations.
  • More than $1 billion in commitments from responsible parties to clean up Superfund sites.
  • $6 billion in combined federal administrative, civil judicial penalties and criminal fines.
  • 93 combined years of incarceration for sentenced defendants.
  • $31.6 million for supplemental environmental projects that provide direct benefits to local communities across the country.

Included in the above totals were the following individual cases or initiatives:

  • Enbridge, which owns and operates one of the world’s largest oil pipeline systems, is spending at least $110 million on implementing a series of state-of-the-art leak detection and monitoring measures to prevent spills, improve operations and protect communities across nearly 2,000 miles of its pipeline system in the Great Lakes region. Enbridge is also paying $62 million in penalties for oil spills in Michigan and Illinois in 2010.
  • Sears will implement a comprehensive, corporate-wide program to ensure its contractors minimize lead dust from home renovation activities to protect the health of children and other vulnerable communities from exposure to lead-based paint.
  • A settlement with national grocery store chain Trader Joe’s Company will reduce potent greenhouse gas emissions from refrigeration equipment at 453 stores nationwide and sets a high bar for the grocery industry for detecting and fixing coolant leaks.
  • EPA completed more than 100 enforcement actions that require entities like renovation contractors, landlords and property managers to protect communities and public health from exposure to lead. Collectively, the settlements require violators to pay more than $1 million in penalties in addition to returning to compliance with federal lead-based paint rules.
  • EPA’s criminal program secured $775,000 in court-ordered environmental projects, generated $207 million in fines and restitution and sentenced defendants to a combined 93 years of incarceration. The two owners of Freedom Industries, a chemical processing company, were each sentenced to 30 days in prison and a $20,000 fine for a chemical spill that contaminated the Elk River and drinking water for 300,000 people and vulnerable communities in Charleston, W.Va., and in surrounding areas.

State of New York Statewide Enforcement Totals for the New York State Department of Environmental Conservation Division of Law Enforcement for calendar year 2014 were as follows:

Beci Totals 4.21.17Statewide 42117

 

Kevin C. Murphy is a member of the Wladis Law Firm, P.C., located in Syracuse, New York, and is listed in The Best Lawyers in America. Should you be confronted with an environmental issue of any kind and specifically an environmental enforcement, 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.

 

Photo By: Anne Lee

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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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

The Recovery of Natural Resource Damages to Onondaga Lake and its Environs

 

Onondaga Lake 2.24.17

What are Natural Resource Damages?

 When a spill or release of contaminants into the environment results in injuries to natural resources,  designated federal, state or tribal natural resources trustees may seek to a recover natural resource damages (NRDs) from the party or parties legally responsible for the spill or release. The goal of the Trustee’s NRD claim is to secure the restoration, replacement, or acquisition of the equivalent of the injured resources and to compensate the public for its lost use of the damaged natural resources. Damages also include the cost of the damage assessment. “Natural resources” that may be the subject of an NRD claim include, but are not limited to, land, water, groundwater, drinking water supplies, air, fish, wildlife, and biota.


EagleFish 2.24.17

 

Legal Authority

The recovery of damages for injury to natural resources is authorized by both federal and state law. The federal laws are: the Superfund law (i.e., the Comprehensive Environmental Remediation, Compensation and Liability Act or CERCLA), the Oil Pollution Act, and the Clean Water Act. State of New York laws are: the Environmental Conservation Law (ECL), the Navigation Law and common law. CERCLA requires the president and each state governor to designate federal and state officials who will act on behalf of the public as trustees for natural resources. The Governor has designated the Commissioner of Environmental Conservation as the Trustee for New York’s natural resources. The federal Trustee for Onondaga Lake is the United States Department of the Interior (DOI). The Commissioner and USDOI are serving as co-trustees for Onondaga Lake.

Only CERCLA provides a statutory basis for the Onondaga Nation to serve as an NRD trustee. The scope of that authority is both broader possibly more restricted than that of the federal and state trustees. Specifically, the statute reads as follows:

“In the case of an injury to, destruction of, or loss of natural resources under … this section liability shall be …to any Indian Tribe for natural resources belonging to, managed by,  controlled by, or appertaining to such tribe, or held in benefit  for the trust of such tribe ….”

42 U.S.C. § 9607(f)(1). Related sections of the CERCLA statue appear to limit a Tribe’s ability to recover NRDs, while at the same time other provisions appear to expand the reach of Tribal NRD rights. In sum, the ability, scope and magnitude of the ability of an Indian tribe to be awarded NRDs is less than certain.

There are no exclusions from liability for governmental entities; the definition of “person” expressly includes the United States, states, municipalities, or state political subdivisions. 42 U.S.C. § 9601(21). Congress expressed it clearly: “Each department, agency, and instrumentality of the United States (including the executive, legislative, and judicial branches of government) shall be subject to, and comply with, this chapter in the same manner and to the same extent, both procedurally and substantively, as any nongovernmental entity, including liability under section 9607 of this title.” 42 U.S.C. § 9620(a)(1). There are limited exceptions to liability however, such as where a government acquired land involuntarily or through eminent domain, but the general rule is clear: governmental entities receive no special treatment under CERCLA.

Trustee Responsibilities

The trustees have the following responsibilities:

  • Assess the damage to natural resources. See, e.g., 42 U.S.C. §9607(f)(2)(A). Federal trustees can also, upon request from a state or Indian tribe, assess damages for a natural resource under the state’s or tribe’s trusteeship. 42 U.S.C. §9607(f)(2)(A); 33 U.S.C. §2706(c)(1);
  • Develop and implement a plan to restore, rehabilitate, or replace damaged natural resources. 33 U.S.C. §2706(c); and
  • Request that the Attorney General commence civil suits against NRD defendants. See, e.g., 16 U.S.C. §19jj-2(a); 16 U.S.C. §1443(c)(1).

One of the trustees’ primary responsibilities is to conduct an NRD assessment to determine the extent of the injury to a natural resource and determine the appropriate manner by which to restore the resource. A natural resource damage assessment (NRDA) is “the process of collecting, compiling, and analyzing information, statistics, or data through prescribed methodologies to determine damages for injuries to natural resources.” 43 C.F.R. §11.14(aa).

The specific procedures to be followed for CERCLA and CWA NRD claims are found at 43 C.F.R. Part 11. Under the CERCLA and CWA regulations, there are two kinds of NRDAs allowed, depending on the resource damaged, Type A and Type B procedures. Type A assessments are “standard procedures for simplified assessments requiring minimal field observations to determine damages.” 43 C.F.R. §11.14(ss). Type B assessments are “alternative methodologies for conducting assessments in individual cases to determine the type and extent of short- and long-term injury and damages.” 43 C.F.R. §11.14(tt). The significant difference between the two types of assessments is the level of complexity. Type A assessments are “simplified assessments” and primarily use modeling to assess impacts with minimal field observation. 43 C.F.R. §11.40. So far, Type A procedures have only been promulgated for coastal or marine environments and Great Lake environments. See 43 C.F.R. §11.33(a). Type B assessments require more intensive field observation and a more rigorous assessment. The procedure for Type B assessments requires four steps: preassessment screen, injury determination, quantification, and damage determination. See 43 C.F.R. §11.60-11.84. The Onondaga Lake site is undergoing a Type B assessment.

The Department of Interior’s Bureau of Land Management Natural Resource Damage Assessment and Restoration Handbook notes that the NRDAR provisions of CERCLA and the CWA are based on three key principles:

  1. Public natural resources are common property of all citizens. The federal and state governments and tribes act as trustees of these resources on behalf of the public.
  2. The parties responsible for the hazardous substance release or oil spill are liable for the costs of restoring the injured resources and compensating the public for the public losses because of the release or spill until resource restoration is complete.
  1. The trustees may use any damages recovered from responsible parties through the NRDAR process only to restore, replace, or acquire the equivalent resources for the public trust.

Id., at Section 1.2, Purpose of NRDAR.

Upon completion of an NRDA conducted under CERCLA and the CWA, determinations or assessments of NRDs made by a trustee “shall have the force and effect of a rebuttable presumption on behalf of the trustee in any administrative or judicial proceeding.” 42 U.S.C. §9607(f)(2)(C) (applying the rebuttable presumption to both CERCLA and CWA NRD claims); 33 U.S.C. §2706(e)(2). These presumptions allow trustees to shift the burden of proof from the trustee onto the defendant who then has to prove by a preponderance of the evidence that the assessment is invalid. Where NRD result from a discharge of a mixture of oil and hazardous substances, trustees must use the CERCLA and CWA regulations (43 C.F.R. Part 11) in order to obtain the rebuttable presumption. 15 C.F.R. §990.20(c).

Trustee Actions to Date for the Onondaga Lake Site

In 1994 the State Trustee prepared an Onondaga Lake Preassessment Screen. It concluded that (1) a discharge of oil or hazardous substances had occurred; (2) natural resources had been or were likely to be adversely affected; (3) the quantity and concentration of released substances was sufficient to potentially cause injury; (4) there was sufficient data to pursue an assessment; and (5) response actions would not be sufficient to remedy the NRD injury. The following comprised the list of hazardous substances believed to have been released: mercury; chlorinated benzenes; polynuclear aromatic hydrocarbons (PAHs); benzene, toluene and xylenes (BTX); ammonia; calcium and calcium salts; and other ionic wastes.

The 1996 State NRD Assessment Plan stated that the State trustee was asserting that “the natural resources in and around Onondaga Lake… have been injured by releases from Allied-Signal Inc. (Allied) of hazardous substances as defined under CERCLA and have created a public nuisance under New York State common law. In addition, the trustee asserts that releases of substances which are not defined as hazardous substances under CERCLA (referred to as non-hazardous substances in this plan) by Allied have also created a public nuisance under New York State common law.” See page xi of the Plan. “The boundaries of the study area generally include all areas in the vicinity of Onondaga Lake where Allied released hazardous and non-hazardous substances and all areas associated with the Onondaga Lake system where injuries to natural resources attributable to those releases have occurred.” Id.

In 2005 the USFWS prepared a Pre-Assessment Screen that reached the same five conclusions found in the 1994 State-conducted Pre-Assessment Screen. The Screen also concluded on pages 5 and 6 that:

Hazardous substances released to Onondaga Lake include, but are not limited to the following: mercury, PCBs, lead, cadmium, chromium, nickel, benzene, chlorinated benzenes, toluene, xylene, PAHs, and pesticides, including aldrin and dichloro-diphenyl-trichloroethane (DDT).

Mercury is the primary contaminant of concern regarding trust resources. It is found in sediments throughout the lake, generally in excess of 1 ppm in surface sediment, with higher concentrations found in the Ninemile Creek delta and in sediments in the southwestern portion of the lake in an area known as “in-lake waste deposit” (ILWD). The southwestern portion of the lake also contains some of the highest concentrations of other chemicals such as BTEX, PCBs, PAHs, dioxins, and furans.

The Trustees have engaged in natural resource injury studies, damage assessments, and restoration planning relating to the Site since 1991.  In November 1996, the NYSDEC published its Onondaga Lake Natural Resource Damage Assessment Plan.  In May 2009, the Trustees, the Onondaga Nation, and Honeywell entered into a Cooperative Assessment and Funding Agreement through by which Honeywell agreed to participate and provide funding for the performance of a cooperative natural resource assessment.  In October 2012, the Trustees and the Onondaga Nation issued the Onondaga Lake Natural Resource Damage Assessment Plan Addendum.  It is understood the on-going assessment has determined that sediment, fish, birds, reptiles, amphibians, and mammals sustained ecological injuries from the hazardous substances releases at the Onondaga Lake site and a loss of recreational fishing trips lost as a result of the releases of hazardous substances at the Site.

It is anticipated the Trustees may release a draft Onondaga Lake Natural Resource Damage Assessment Restoration Plan and Environmental Assessment (“RP/EA”) for public comment in 2017. It is not yet known what the Restoration Plan will propose or what type of recovery the Trustee might secure.

An example of a recent NRD settlement is the accord reached between Alcoa, Inc and Reynolds Metals, Co. with the federal state and tribal Trustees for releases that took place in and around Massena, New York. The Trustees’ assessment determined that sediment, fish, birds, amphibians and mammals sustained ecological and remedial injuries and calculated an estimate of the number of fishing days lost as a result of those injuries. The settling parties in Massena agreed to reimburse approximately $1 million in past assessment costs; contribute  $7.2 million for Joint Trustee sponsored Natural Resource Restoration Projects; pay $8.3 million for Tribal Cultural Restoration Projects; and purchase and donate two parcels of land to the state of New York to be incorporated into the Wilson Hill Wildlife Management Area.

Photo Credit:

Solvay Process Works: syracusethenandnow.org

Eagle: media.syracuse.com

Fish:  dec.ny.gov

 

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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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

Selecting An Environmental Lawyer

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Environmental law matters frequently involve an overlap of and interplay between legal, scientific and business concerns.  Translating science into policy and policy into law and the resulting enforcement or interpretation of the law by government agencies and the courts can leave the prospective client frustrated, confused and confounded by the law and its regulators.  Adding to that frustration is both the complexity and harshness of the law and, often times, the absence of simple, quick and easy solutions to environmental legal problems.

That being said, there is much an environmental lawyer can do to benefit the client’s interests.  Counsel is best sought, of course, prior to any actual conflict arising.  Environmental counsel can minimize potential client liability through compliance counseling, assistance with permitting, site and process auditing, the performance of pre-acquisition due diligence and the presentation of public comments or testimony prior to the enactment or promulgation of statutes or regulations which might impact the client.  Should issues of non-compliance or liability arise, counsel familiar with the specifics and peculiarities of environmental matters will likely be the best advocate for a client confronted with environmental concerns.

First and foremost, an environmental lawyer must be a good lawyer.  Ask your friends, business associates and trade organizations, state or local bar and business groups and your engineer, technical consultant or non-environmental lawyer for one or more recommendations of a lawyer or a law firm that practices environmental law.

Interview any lawyer that you might consider hiring.  Determine their qualifications and experience. Consider first the candidate’s general qualifications, including years of experience; years of environmental law experience; their professional development through organizations, attendance at seminars, written articles, or teaching; and prior experience, including past governmental positions.  Next, consider the candidate’s experience as it relates to your legal concerns.  Among the many types of environmental matters which might require the assistance of environmental counsel are the selling or purchasing of contaminated real estate, securing a government permit, notice of a government enforcement action, a neighbor who alleges that you are polluting his property or your concerns that a neighbor has polluted your property.  Determine if your candidate’s experience includes matters similar to yours.  If she has never assisted a client secure a permit or he has never defended a government enforcement action, he or she might not be the best-qualified environmental lawyer to resolve your legal matters.  Determine if the lawyer has practiced before the government agency with which you have a conflict.  While not mandatory or essential, familiarity with the specific regulator and its procedures and practices is always helpful.

Ask the candidate to explain how the law works in your particular area and what type of solutions might be available.  Remember, because environmental law involves the confluence of law, science and business, you should select a lawyer who not only understands the complex issues you are confronted with but who can communicate the issues and possible solutions in a clear, precise and understandable manner.  If you cannot understand your lawyer, you will be frustrated and the other side, whoever it may be, is also likely to be frustrated.

Inquire as to what other professionals may be needed.  Not only environmental engineers and consultants, but other legal professionals.  Often times environmental issues arise in the context of other legal conflicts such as potential foreclosures, bankruptcy or trust and estate matters.  Determine if your candidate has access to the necessary qualified professionals or if the candidate can successfully work with your existing counsel and experts.

Before engaging the services of an environmental lawyer, or any lawyer, discuss fees.  Be aware, however, that lower hourly rates do not necessarily translate into lower total costs.  Determine how your matter might be staffed, who will do the work and the likely or potential complications, which will add to the costs of a solution.  Speaking to more than one candidate is the best way to determine a realistic picture of the potential range of costs and time involved and the options and approaches to solving your problem.

In making your final choice, do not disregard your instinct – select the lawyer you are most comfortable with and the lawyer you trust.  Be wary of promises that are easy to make but difficult to keep.  Make sure your lawyer listens and understands your goals and objectives but, at the same time, listen to what your lawyer says I can and cannot do for you.

Kevin C. Murphy is a member of the Wladis Law Firm, P.C., located in Syracuse, New York, and is listed in The Best Lawyers in America.

Photo: news.bbcimg.co.uk

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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What Should You Do When You Find Out Or Suspect Your Business Property Is Contaminated?

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Today, federal, state and even local agencies in New York enforce environmental laws and regulations designed to help keep the environment clean.  Companies find it makes good business sense to have sound environmental practices.  There is a culture of environmental awareness and recognition that we should be protective of the environment.

It wasn’t that long ago, however, that this wasn’t the case: many businesses didn’t see the value in being good stewards of the environment and engaged in less environmentally-sensitive practices.  As a result, in New York, with its legacy of industrial activity, many business properties are contaminated.  Often times, the contamination is decades old and the current landowner has no idea that the contamination exists.

There are many trigger events that lead to the discovery of contamination, or suspected contamination, on a property.  Some common ones are:

  • a prospective sale of a property
  • new development or renovation of a property
  • an environmental audit of the property
  • getting a mortgage on the property
  • the discovery of contamination on adjacent property.

In each of these instances, some event causes either an inspection of the property, such as the need for an environmental site assessment, or some physical activity on the property, such as construction, demolition or sampling.

So what should you do if you discover you might have contamination on your property?  Like many things in life, the answer is it depends.  If you discover an active, ongoing source of contamination, you almost certainly have a fairly immediate reporting obligation, either under a statute/regulation or an environmental permit.   If you uncover what looks like it could be historic contamination but are unsure, your response can be more measured.

If you discover or suspect you have discovered contamination on your property, here are some actions you should consider taking:

  • Contact your legal counsel to discuss your options. How you respond to the discovery of contamination or suspected contamination can lead to a major headache with significant expenses, if not done correctly.  You may spend some money on getting sound legal advice, but you could end up paying out more if go at it alone.
  • Find out your reporting obligations right away. Different situations can call for different reporting requirements.  Some reporting requirements require almost immediate reporting and the failure to report could result in a substantial civil penalty or even criminal charges.  Experienced counsel can help you understand what these obligations are.
  • Take a look at your insurance coverage. Environmental contamination often is excluded from coverage, but not always.  You should review your coverage, with your insurance broker or counsel if necessary, to determine whether your business may have coverage that can help pay for a clean-up.
  • Understand what your property documents say. If your business purchased the property, look at the purchase documents to see what they say about contamination.  Often times, especially in a more sophisticated transaction, risk of contamination is allocated in the transaction documents.  If your business leases the property, see what the lease says.  There may be a provision that discusses what happens if contamination is found.
  • Consider hiring an environmental consultant. For many reasons, you may want to know what you can about any contamination or suspected contamination you find.  For example, if you suspect the contamination came from a neighboring property, you probably want to determine its source so you can determine who may be responsible for remediation.  Be aware that you may have to act on issues your consultant uncovers.
  • Look into whether you can recover or demand cleanup costs from a responsible party. Often times, more than one party is responsible for contamination at a property.  Considering the fact that cleanups of these properties can be very expensive, even if your business shares some responsibility for a cleanup, you should consider whether other responsible parties should share these costs.  Talk with your counsel about your options if you suspect another party or other parties might be responsible for any contamination.

No business wants to find it has or may have contamination on its property.  If it happens, however, your goal should be to consider taking these steps to help minimize your risks.

Why You need an Environmental Attorney

environmental-lawyer

With so many practiced attorneys, you may be asking yourself why you need to retain an experienced environmental attorney?

Failing to consider that question can become an expensive mistake.  No one wants to discover a costly environmental problem after closing or learn their indemnification agreement does not address unanticipated costs and expenses or operations cannot meet the requirements of the permit you just received. An environmental attorney can help business executives and managers navigate environmental pitfalls, provide valuable advice early in the planning and decision making process, and if necessary, resolve disputes with regulators, neighbors and environmental groups.  Indeed, there are many reasons for choosing an environmental attorney.

  • Environmental attorneys speak the language.

Have you ever talked with a government regulator or a consultant and heard about USTs, APARs, MSDs and HAZWOPERS?  Your environmental attorney knows the acronyms and the regulatory systems behind them.  He or she can speak with regulators and consultants in their own language and help achieve your goal of getting the job done in the most efficient manner.

  • They know the law.

Just like tax law, environmental law is a maze of statutes, regulations, guidance documents and preambles in the Federal Register or guidance issued by state regulators. A hazardous substance is not the same as a hazardous waste or a hazardous chemical or a toxic chemical or a hazardous material.  Each of these terms has a very specific meaning and applicability.  Each term has its own set of defining regulations and applicable obligations.  An environmental attorney can help you sort out what belongs where.

  • You can save money.

Unfortunately, if you pay for the discount Phase I environmental property assessment and fail to check credentials or read the engagement agreement or the final report, you may not get anything for your money except a big bill for the problem that was not found or properly explained.  A Phase I investigation report should follow a very specific format established by ASTM (the American Society of Testing and Materials) and Environmental Protection Agency regulations.  You may have saved money, but if the report does meet the requirements for the “innocent purchaser defense” under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund), you may have wasted your money.  Moreover, the report may have missed something that will end up costing much more than any initial savings, such as the presence of wetlands or asbestos-containing materials. Having an environmental attorney assist in the environmental due diligence process assures that the review will meet the applicable legal  Environmental attorneys can also assist in reviewing and finalizing drafts to help ensure the final product is one you can share with a regulator or lender or if necessary, keep confidential pursuant to the attorney-client privilege.

  • To save even more money.

For certain properties and in certain transactions, it may not be efficient to start with a Phase I investigation.  You may need to look at process compliance issues and not just whether there have been past releases of hazardous substances.  Environmental attorneys can assist with scoping a project, knowing the laws and your goals, which ultimately gets you the information you need and often in a more economical fashion. If you are buying a permit you need a specialist who understands what your needs are and whether the existing permit has been complied with by the seller and will work for the purchaser. A permit whose conditions you cannot meet will become a regulatory nightmare.

  • Environmental attorneys are specialists.

Just 30 to 60 minutes of review of an asset purchase or stock purchase or other agreement may end up protecting you much more than the cost of that review.  The review of documents and assisting with the drafting of environmental and related provisions (indemnities) is precision work.  Just as you would not hire your family doctor to do your heart surgery, you should not skip having an environmental attorney involved if there are any possible environmental issues in a deal.  If the environmental attorney has reviewed the due diligence materials and knows your goals, the cost of the review will be money well spent.

  • Environmental attorneys know the landscape and what potential issues exist. 

Sometimes parties assume that if there is a Phase I assessment, the environmental issues have been addressed.  The problem with this assumption is that there is an entire world of environmental statutes and regulations at every level — federal, state and local.  For example, in an acquisition or financing, the scope of issues to be addressed should include, among others, compliance issues, permit transfers, and required notifications.  There are air, water, waste and possibly other areas to consider.  Some permits are not transferable or require up to 30 days notice to a regulator prior to transfer.  Not planning for these contingencies in a transaction may end up costing the client money and add to frustration levels.

  • Environmental attorneys can make enforcement issues easier to manage. 

If you get a notice of violation or have a compliance issue, an environmental attorney, familiar with the statutes and regulations, can guide you through the maze and assist with your defenses and negotiation with the agency.  Environmental attorneys know the regulations and the administrative process.  They know what defenses or mitigating factors may apply. They know if the regulator has made a mistake and whether the issues being raised are applicable to your circumstance. More than once we have found the regulator is wrong and the client is right. An environmental attorney, you recall, also speaks the language and can help you understand the system and your potential pathways to resolution.

Kevin C. Murphy is a member of the Wladis Law Firm, P.C., located in Syracuse, New York. He is a former Senior Trial Attorney for the U.S. Department of Justice, Environmental Crimes Section; he has served as an adjunct faculty member at the Syracuse University School of Law and has been listed in The Best Lawyers in America. He may be contacted at 315/445-1700 or at kmurphy@wladislawfirm.com

Photo Credit:  www.calvin.edu

 

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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What to Do When an Agency Visits for an Inspection

Inspection 7816

You’re working in your office when suddenly one of your employees is at your door: there are a couple of agents from the NYS Department of Conservation at your facility, here to conduct an inspection because the agency received a complaint about your business.  What should you do?  What can you do?  If you manage the visit correctly, then maybe it’s just a minor disruption.  If you don’t, you can be looking at a major headache.

Here are some big picture items to keep in mind.

Understand who is there and why they’re there.  The example used here is the DEC, but the agency at your door could be OSHA, or EPA or a host of other regulatory or investigative agencies.  Find out who they are and why they’re there.  Certain personnel—security guards, a foreman—will be the first to interact with the inspectors.  They should request credentials and ask about the purpose of the visit and find out if they have a search warrant.  They should contact management with this information.  Most importantly, they should be professional and courteous—this is a serious event with potentially significant consequences—and direct any questions to management.

Determine who you want present.  Depending on the nature of the inspection, you may want counsel present, or at least available by phone if that’s at all possible.  In any event, you want only the right people present with the inspectors.  While you want to cooperate with reasonable requests, there’s no need to have more people than you need present to answer any questions.  Answers can have far reaching consequences, which you may not know at the time.  A speculative answer volunteered by an employee trying to be helpful could end up hurting, not helping, your cause.  Limit your company’s presence to those with knowledge or a need to be present.

Document the event.  Arguably, nothing is more important than documenting the inspectors’ visit.  Know who was present and when they were present.  As soon as it is practicable, document the questions the inspectors asked, the answers they were given, and the parts of the facility they visited.  Keep notes and photograph anything an inspector photographs.  If an inspector requests or takes records, document what was requested or taken.  If the inspector takes samples, see if you can get split samples.  Document as much as you can, even if it seems unimportant at the time.

You may not have to turn it over, but then again maybe you do.  Even with a search warrant, inspectors do not have carte blanche to inspect anything and everything at a facility or to take anything they wish.  Search warrants are powerful investigative tools, but they are typically limited in time and space and must set forth the particular items to be seized.  A search warrant for company records normally doesn’t give investigators the right to seize an employee’s private iPad kept at his desk.  That said, some federal (e.g., Clean Air Act) and state (e.g., Oil Spill Act) environmental laws require facilities to keep records showing their regulatory compliance.  The inspectors don’t need a warrant to review those records.

Read it carefully.  Sometimes an inspector will ask someone to sign a document after the inspection is completed.  Think about this request carefully because it can have serious legal implications.  Whatever the document is, read it closely before signing.  If you feel you cannot sign it, you probably should not.

Have a plan in place.  Finally, if you are a regulated industry or a workplace, you know that an investigative agency can pay you a visit.  Be prepared for it.  Have protocols in place for dealing with an inspection.  Have your employees know what they should do, how they should act and who they should contact if an inspector shows up at your facility.  Make sure management knows what it should do, including who should document the visit and who it might contact about any inspection.  Better to be prepared and not be inspected than to have an inspection and not be prepared.

The long and short of it is that being the subject of an agency investigation can be a nerve-wracking experience, but it doesn’t necessarily have to be.  It is all about preparation and sticking to protocols.  If you have a question about how your facility should prepare for an agency inspection, or if you’ve already been subject to one, feel free to contact Tim Lambrecht, Esq. or Kevin Murphy, Esq. at the Wladis Law Firm.

When should you report a petroleum spill to the NYS Spill Hotline?

Sandal and Red Maple Leaf on A Toxic Beach

Petroleum spills are a fairly common occurrence in New York State.  By the NYS Department of Conservation’s own estimate, it receives about 16,000 reports annually of spills through its Spill Hotline (800-457-7362).  While most of these reports are for releases of small quantities that are cleaned up quickly, some are substantial and require a significant cleanup.

 

The obligation to report petroleum spills is generally covered by New York’s Petroleum Bulk Storage (PBS) regulations and New York’s Oil Spill Act, which is also known as the Navigation Law.  Section 613.8 of the PBS regulations, which essentially is limited to limited to regulated bulk tanks, requires “[a]ny person with knowledge” of a petroleum spill to report it to the Department within two hours of discovery through the Spill Hotline.  The reporting requirement under Navigation Law § 175 also requires reporting within two hours of discovery, but applies to “[a]ny person responsible for causing a discharge.”  It is not limited to bulk tanks, but covers “discharges,” which essentially are defined by Navigation Law § 172(8) as releases of petroleum into State waters of the state or onto lands from which the releases might flow or drain into State waters.

 

Keep in mind that the penalty for failure to report a spill is pretty severe: violations are an offense punishable by a $25,000 fine under Navigation Law § 192.

 

Fortunately, the Department recognizes that it doesn’t make sense to burden the Spill Hotline with minor and not a threat to the environment.  A spill doesn’t have to be reported when all of the following conditions are met:

 

  • The quantity is known to be less than 5 gallons; and
  • The spill is contained and under the control of the spiller; and
  • The spill has not and will not reach the State’s water or any land; and
  • The spill is cleaned up within 2 hours of discovery.

 

A spill is considered to have not impacted land if it occurs on a paved surface such as asphalt or concrete.  A spill in a dirt or gravel parking lot is considered to have impacted land and is reportable.

 

While most times reported spills require little more than a cleanup and signoff from the Department, sometimes spills require a substantial cleanup or management.  In those cases, the Department will send a demand letter for the cleanup to who it believes is the discharger.  Often times, the issue of who really is the discharger is complicated, which can be a real issue when cleanup costs, which can be considerable, are at issue.  If the Department considers you or your company to be a discharger, you may want to seek legal guidance.