NYSDEC Proposed Revisions to Hazardous Materials Regulations

Image courtesy lebanonnh.gov

Since 2012, the United States Environmental Protection Agency (EPA) has promulgated a number of major changes to the rules that regulate the treatment, storage and disposal of hazardous waste. The New York State Department of Environmental Conservation is considering adopting a number of these federal changes to the applicable state rules.

Before it finalizes any of the proposed revisions, NYSDEC is conducting webinars, holdings meetings, and seeking comments on these potential revisions to the New York State hazardous waste management regulations.

Comments can be submitted to NYSDEC via email or U.S. Mail to the following addresses:

Email:

HWRegs@dec.ny.gov

(Include “Comments on FedReg6” in the subject line of the email)

U.S. Mail:
Michelle Ching
NYSDEC
625 Broadway
Albany, NY 12233-7256

The dates, times and locations of webinars and meetings can be found at:

https://content.govdelivery.com/accounts/NYSDEC/bulletins/24c46d5

The regulations proposed to be amended, revised are added to the New York Code of Rules and Regulations are as follows:

This rule adds regulations for the management of hazardous waste pharmaceuticals by healthcare facilities and reverse distributors. Healthcare facilities and reverse distributors will manage their hazardous waste pharmaceuticals under this new set of sector-specific standards in lieu of the existing hazardous waste generator regulations. These new regulations exclude certain U.S. Food and Drug Administration (FDA) approved over-the-counter (OTC) nicotine replacement therapies (NRTs) (e.g., nicotine gums, patches, lozenges) from regulation as hazardous waste. These provisions also prohibit the disposal of hazardous waste pharmaceuticals down the drain, this ban on sewering hazardous waste pharmaceuticals goes into effect nationwide on the effective date of the federal rule, regardless of adoption status of the rule by authorized states.

  • Increasing Recycling: Adding Aerosol Cans to the Universal Waste Regulations (Regulation proposed by EPA 2018)

Aerosol cans are managed by a wide variety of establishments, including retail stores. Aerosol cans may be hazardous wastes due to residual chemicals but may also be a hazardous waste because of the hazard posed by the pressure in the cans. By adding aerosol cans to the universal waste rule and creating a set of standards specific to the risks posed by this waste stream, collection and recycling of these wastes will be encouraged. This will reduce the quantity of these wastes going to municipal solid waste landfills or combustors.

  • Safe Management of Recalled Airbags Interim Final Rule (2018)

This rule facilitates the more expeditious removal of defective Takata airbag inflators and improve safe and environmentally sound disposal of collected airbag wastes from vehicles by dealerships, salvage yards and other locations.

Revises the definition of solid waste to conditionally exclude solvent-contaminated wipes that are cleaned and reused and revises the definition of hazardous waste to conditionally exclude solvent-contaminated wipes that are disposed.

The Carbon Dioxide Sequestration Rule provides a conditional exclusion for carbon dioxide (CO2) streams in geological sequestration activities. This rule would conditionally exclude CO2 streams that are hazardous waste from the definition of hazardous waste, if they are captured from emission sources and are injected into Class VI Underground Injection Control wells for geological sequestration, provided that certain requirements are met.

  • Hazardous Waste Electronic Manifest (e-Manifest) Rules (2014; 2018)   EPA’s e-Manifest Rules provide the legal and policy framework to authorize the use of electronic manifests. The e-Manifest system went into effect throughout the United States at the same time, even if authorized states had not yet amended their regulations. The e-Manifest system launched on June 30th, 2018. DEC must adopt these provisions to maintain conformance with the federal regulations.

Redefines “hazardous secondary materials.” It streamlines regulation of hazardous secondary material to encourage beneficial recycling and helps conserve resources. By removing unnecessary regulatory controls, it is expected to make it easier and more cost-effective to safely recycle hazardous secondary materials. EPA published substantial revisions to this rule on January 13, 2015. As amended, the rule provides greater safeguards from mismanagement. Certain parts of the 2015 Final Rule are more stringent than current DEC regulations. DEC must adopt these provisions, which include a revised definition of “legitimate recycling,” a prohibition on sham recycling, and new recordkeeping requirements related to speculative accumulation provisions.

Reorganizes and restructures the hazardous waste regulations to make them more user-friendly for the regulated community. This rule also includes revisions that are intended to address existing gaps in the hazardous waste regulations including container labeling, preparedness and prevention, and closure. The rule also contains some less stringent provisions designed to provide flexibility to the regulated community including procedures for episodic generation events, the waiver from the 50-foot setback for large quantity generators, and consolidation of waste from very small quantity generators by a large quantity generator under the control of the same entity.

  • Modernizing Ignitable Liquids Determinations (Regulation proposed by EPA 2019)

Regulation currently proposed by EPA to modernize the RCRA test methods used to determine the flash point of waste. Flash point is used to identify waste that is characteristically hazardous for ignitability. These revisions will provide more flexibility with regard to the testing requirements and greater clarity for the regulated community with respect to hazardous waste identification.

  • Hazardous Waste Export-Import Revisions (2016; 2017)

These rules amend existing regulations regarding the export and import of hazardous wastes from and into the United States (US). The rules make existing export and import related requirements more consistent with the import-export requirements for shipments between members of the Organization for Economic Cooperation and Development (OECD), enable electronic submittal to EPA of all export and import-related documents (e.g., export notices, export annual reports), and enable electronic validation of consent in the Automated Export System (AES) for export shipments subject to RCRA export consent requirements prior to exit from the US.

  • Disposal of Coal Combustion Residuals from Electric Utilities (2015)   EPA created this rule to regulate the disposal of coal combustion residuals (CCR) as solid waste under subtitle D of RCRA. This rule establishes a national minimum criteria for existing and new CCR landfills, existing and new CCR surface impoundments, and all lateral expansions. This rule primarily addresses regulation under solid waste rather than hazardous waste provisions. In the CCR rule, EPA revised an existing exclusion to allow certain low-volume wastes commonly produced in conjunction with the burning of fossil fuels to produce electricity to be excluded from the hazardous waste regulations if co-disposed with the fly ash, bottom ash, boiler slag or flue gas emission control wastes from coal combustion. On December 16, President Obama signed the Water Infrastructure Improvements for the Nation (WINN) Act into Law. The law includes amendments to the Resource Conservation and Recovery Act (RCRA) Section 4005, to address the regulation of CCR. EPA expanded their exclusion in 40 CFR 261 to include wastes that are commonly co-disposed with these wastes. DEC is not planning to expand the exclusion in 6 NYCRR 371.1(e)(2)(iv), Identification and Listing of Hazardous Waste. There are currently two coal-fired power plants in the state that operate on an intermittent basis.

Kevin C. Murphy is a member of the Wladis Law Firm, P.C., located in Syracuse, New York. Should you have questions regarding the generation, storage, treatment or disposal of hazardous waste or any of the under consideration changes to New York’s hazardous waste rules or if you would like assistance in preparing and submitting comments to NYSDEC, please feel free to contact Attorney Murphy or Attorney Timothy Lambrecht of the Wladis Law Firm.

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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New York Launches New Online Harmful Algal Blooms Map and Reporting System


Harmful algal blooms (HABs) have been in the news recently, especially here in Central New York.  Just two years ago HAB outbreaks in Skaneateles Lake, which—unfiltered—provides Syracuse’s drinking water, caused a good deal of concern about the potability of that water and even led to several days of beach closures.  Other areas of the State have been affected by HABs, too.

Earlier this month, New York launched a new online HABs map and reporting system to encourage citizens to learn about and report suspected HABs.  Links to both are here:

https://survey123.arcgis.com/share/66337b887ccd465ab7645c0a9c1bc5c0 (reporting form)

https://nysdec.maps.arcgis.com/apps/webappviewer/index.html?id=ae91142c812a4ab997ba739ed9723e6e (map)

The map is interactive and updated daily from late spring through fall.  Yellow and gray icons on the map showed suspected and archived HABs, respectively, and, when clicked upon, may contain links to photographs of the outbreaks.  The reporting form is mobile phone friendly.

So what, exactly, are HABs?  And what causes them?  And should they concern us?  HABs are large colonies of algae that are naturally present in lakes and streams and produce toxic or harmful effects on people, animal, fish and wildlife.  While blooms occur naturally—they tend to appear in nutrient-rich surface waters that receive a lot of sunlight—some man-made activities are thought to increase their occurrence.  HABs, for instance, often occur in water bodies high in nitrogen and/or phosphorus, which some suspect might result from the use of fertilizers.  While human illnesses caused by HABs are fairly rare, they can be debilitating.  Symptoms from exposure include diarrhea, nausea, or vomiting, skin/eye/throat irritation, and allergic reactions or breathing difficulties.  For some people, exposure even can be fatal.

The State takes a three step approach to HABs: “Know it, Avoid it, Report it.”

Know it.  It might be a blue-green algae bloom in surface water if you see:

●          Strongly colored water (blue-green, green, yellow, white, brown, purple, or red).

●          Paint-like appearance.

●          Floating mats or scums.

Avoid it.  Always stay away from blooms in surface waters:

●          Don’t swim, fish, boat, or wade in areas with blooms.

●          Don’t eat fish caught from areas with blooms.

●          Rinse with clean water if you, your family or pets have contact with blooms.

●          Never drink, prepare food, or make ice with untreated surface water.

●          Boiling water will not remove blue-green algae or their toxins.

Report it.  Report blooms to the DEC, your local health department, or harmfulalgae@health.ny.gov.

For more information on HABs, visit DEC’s Harmful Algal Blooms web page, https://www.dec.ny.gov/chemical/77118.html.

Picture: https://romesentinel.com/stories/county-warns-toxic-algae-blooms-likely-at-delta-lake,409

Lead-Based Paint: Notice Requirements imposed by Federal Law on Sellers, Property Managers, Landlords and Real Estate Agents

In 1978 the federal government banned consumer uses of lead-based paint, thus effectively stopping the use of lead-based paint in all housing across the country. Prior to that date, lead-based paint was widely used including in housing and homes constructed prior to that date.  If properly managed lead-based paint poses little, if any risk to human health. If allowed to deteriorate (peeling, chipping, chalking, cracking, damaged, or damp), lead-based paint is a potential hazard. It can cause serious health problems, especially to children and pregnant women.

Homebuyers

Federal law requires that before being obligated under a contract to buy housing built prior to 1978, buyers must receive the following from the seller:

  • An EPA-approved information pamphlet on identifying and controlling lead-based paint hazards titled Protect Your Family From Lead In Your Home.
  • Any known information concerning the presence of lead-based paint or lead-based paint hazards in the home or building.
    • For multi-unit buildings, this requirement includes records and reports concerning common areas and other units when such information was obtained as a result of a building-wide evaluation.
  • An attachment to the contract, or language inserted in the contract, that includes a “Lead Warning Statement” and confirms that the seller has complied with all notification requirements.
  • A 10-day period to conduct a paint inspection or risk assessment for lead-based paint or lead-based paint hazards. Parties may mutually agree, in writing, to lengthen or shorten the time period for inspection. Homebuyers may waive this inspection opportunity. If you have a concern about possible lead-based paint, you may secure a lead inspection from a certified inspector before buying.

Renters

Federal law requires that before signing a lease for housing built before 1978, renters must receive the following from your landlord:

  • An EPA-approved information pamphlet on identifying and controlling lead-based paint hazards, Protect Your Family From Lead In Your Home.
  • Any known information concerning the presence of lead-based paint or lead-based paint hazards in the home or building.
    • For multi-unit buildings, this requirement includes records and reports concerning common areas and other units when such information was obtained as a result of a building-wide evaluation.
  • An attachment to the contract, or language inserted in the contract, that includes a “Lead Warning Statement” and confirms that the landlord has complied with all notification requirements.

Property Managers and Landlords

As owners, landlords, agents, and managers of rental property, you play an important role in protecting the health of your tenants and their children. Buildings built before 1978 are much more likely to have lead-based paint. Federal law requires you to provide certain important information about lead paint before a prospective renter is obligated under lease to rent from you.

Landlords must give prospective tenants of buildings built before 1978:

  • An EPA-approved information pamphlet on identifying and controlling lead-based paint hazards, Protect Your Family From Lead In Your Home.
  • Any known information concerning lead-based paint or lead-based paint hazards pertaining to the building.
    • For multi-unit buildings this requirement includes records and reports concerning common areas and other units when such information was obtained as a result of a building-wide evaluation.
  • A lead disclosure attachment to the lease, or language inserted in the lease, that includes a “Lead Warning Statement” and confirms that you have complied with all notification requirements.

Real Estate Agents and Home Sellers

As real estate agents and home sellers, you play an important role in protecting the health of families purchasing and moving into your home. Buildings built before 1978 are much more likely to have lead-based paint. Federal law requires you to provide certain important information about lead paint before a prospective buyer is obligated under a contract to purchase your home.

Real estate agents must:

  • Inform the seller of his or her obligations under the Real Estate Notification and Disclosure Rule. In addition, the agent is responsible if the seller or lessor fails to comply; unless the failure involves specific lead-based paint or lead-based paint hazard information that the seller or lessor did not disclose to the agent. Read the regulations that includes these requirements.
  • Provide, as part of the contract process, an EPA-approved information pamphlet on identifying and controlling lead-based paint hazards titled Protect Your Family From Lead In Your Home. Attach to contract, or insert language in the contract, a “Lead Warning Statement” and confirmation that you have complied with all notification requirements.
  • Provide a 10-day period to conduct a paint inspection or risk assessment for lead-based paint or lead-based paint hazards. Parties may mutually agree, in writing, to lengthen or shorten the time period for inspection. Homebuyers may waive this inspection opportunity.

A copy of the pamphlet Protect Your Family From Lead In Your Home is available at:

https://www.epa.gov/sites/production/files/2017-06/documents/pyf_color_landscape_format_2017_508.pdf

For information on the federal Lead-Based Paint Renovation, Repair and Painting Rule see my August 30, 2017 Wladis Law Firm Blog Post.

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:
http://homepainting.gypsum-banjarmasin.info/2014/12/31/homes-with-lead-based-paint/

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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IT’S TIME TO GET WITH THE PROGRAM.


Here in Onondaga County, we are very fortunate to have curbside recycling available to us as a free service. We’ve been dutifully tossing our cans, jars, and newspapers into blue bins for years and polishing our own haloes for our contributions to keeping the Earth green. I’ve got some news for you, though, and it may come as a big surprise – if you’ve been checking the code on the bottom of your plastic containers to determine if they are recyclable – you’re doing it wrong. We no longer need to memorize the various codes – plastic bottles, jugs, the containers your cottage cheese comes in – all can be recycled. If you’ve been tossing your pizzeria pizza box in the trash but your late night Digiorno frozen pizza box in the blue bin – you’re doing it wrong. I know! That was a shocker for me, too, but your pizzeria box is recyclable and the waxed paper boxes frozen foods come in go in the trash.

Recycling protocols have changed, and your good intentions might be making things a whole lot harder for the folks who work for OCRRA and have the unenviable but oh so important job of separating recyclables. You probably figured out that the Styrofoam egg cartons are trash, but did you know that the cardboard ones are too? Not recyclable. Those plastic clamshell containers that your strawberries come in are not recyclable, and when you put them in your blue bin and they end up on the sorting belt, they often jam up the works and the whole system has to be shut down while the machine is fixed. The presence of your trash in the recycling stream can contaminate the whole lot, rendering it all trash. You don’t have to sort your plastic laundry jugs from your child’s drawings brought home from school (oh come on, it’s ok to admit that you sneak some of them into the recycling bin when your kids aren’t looking!). Put all your recyclables in the blue bin together. If you aren’t sure if something is recyclable, just trash it. These handy infographics from OCRRA are an easy way to remember what goes in your blue bin and what goes in the trash:

These handy infographics from OCRRA are an easy way to remember what goes in your blue bin and what goes in the trash:

Pictures: www.knowyourmeme.com; www.ocrra.org

Jennifer Granzow

Ms. Granzow holds a JD from the Syracuse University College of Law. Her practice is concentrated in the areas of business and corporate law, real estate, economic development, and government relations, with an emphasis on grants and public funding.

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NYSDEC Issues $1.3 Million Penalty for Illegal Mining

Sand and gravel mines are located all over New York State.  While most operate legally, there are some that operate without a permit, which poses a significant risk to their operators—and some find that out the hard way.  Earlier this month, the New York State Department of Environmental Conservation (NYSDEC) entered into an Order on Consent with BlueGreen Farms, Inc., the owners of a proposed fish farm on Long Island, whereby it agreed to pay a nearly $1.3 million penalty for taking more than 200,000 yards of sand and gravel without a permit.  The penalty is one of the largest of its kind that NYSDEC has issued.

According to NYSDEC, BlueGreen Farms started removing sand and gravel back in 2010, with the aim of building a hydroponic aquaculture facility.  The facility was to be located in Yaphank, New York, which is in Suffolk County.

When mining is legitimately a part of a construction project, it is exempt from NYSDEC’s jurisdiction and the builder is not required to get mining permits.  Nor is NYSDEC oversight required.  The problem here was that while BlueGreen Farms excavated and mined millions of cubic yards of sand from the property—chiefly, legitimately, as it has a permit for a 67-acre designated area on site—it excavated nearly 200,000 yards outside of that area.  Ostensibly, this was tied to the aquaculture project.  In reality, even though concrete foundations for a portion of the project were poured in 2013, mining continued and BlueGreen did not develop the site any further.  Spidey senses tingled: a concerned citizen complained: NYSDEC investigated.  In NYSDEC’s view, the situation created an unpermitted, unlawful mining operation, which formed the basis for the Consent Order and hefty penalty.

NYSDEC Commissioner Basil Seggos was fairly blunt in his assessment and press release: New York’s stringent rules and regulations governing mining operations exist to ensure the protection of our irreplaceable natural resources. Illegal sand mining not only robs the people of Long Island of these precious resources, if done improperly, it can cause irreparable harm to our environment. New York State will continue our aggressive, on-the-ground oversight to ensure every facility complies with applicable rules and regulations and that their operations do not threaten the environment, especially Long Island’s precious sole source aquifer.

Under the Order on Consent, BlueGreen has to pay a penalty of $125,000 and contribute $600,000 to be used in a groundwater study conducted by the U.S. Geological Survey.  The remainder of the fine is suspended, as long as BlueGreen complies with the Consent Order.

So, the lesson in this is a simple one: if you excavate sand and gravel for construction, but it could be interpreted to look like an unpermitted mining operation to a concerned neighbor, this case shows that NYSDEC is willing to investigate.  Also be aware that if it feels the facts show the activity is illegal mining, NYSDEC may pursue a significant penalty.  It is a good idea to get the advice of counsel if you find yourself in this situation. 

The State of New York Response to the Detection of Emerging Contaminants in Groundwater: A Primer

In December, 2018, The New York State Departments of Health and Environmental Conservation announced that the New York State Drinking Water Quality Council had recommended that the Department of Health adopt the nation’s most protective maximum contaminant levels (MCLs) for PFOA, PFOS, and the nation’s first MCL for 1,4-dioxane. All three “emerging contaminants” have been detected in drinking water systems in New York and across the country, yet remain unregulated by the federal Environmental Protection Agency, which is responsible for setting regulatory limits under the federal Safe Drinking Water Act.

What is PFOA, PFOS and 1,4-dioxane?

Commonly referred to as, collectively “emerging contaminants,”

  • PFOA is a chemical that has been used to make non-stick, stain resistant, and water repellant products;
  • PFOS was used in fire-fighting foam; and
  • 1,4-dioxane is a chemical that has been used as a stabilizer in solvents, paint strippers, greases and wax.

Where have emerging contaminants been found in New York?

  • Hoosick Falls

In New York, Hoosick Falls, NY was the first location to receive widespread publicity about the presence of PFOA contamination in its drinking water. While the source of the PFOA contamination hasn’t been identified, Saint-Gobain Performance Plastics started paying for bottled water for residents in November 2015 and agreed to pay for the cost of filtration necessary to remove the chemical from the public water supply.

  • Newburgh, NY

In August 2016, NYSDEC declared the Stewart Air Base a state superfund site due to the extremely elevated levels of PFOS detected in Lake Washington, a 1.3 billion-gallon reservoir that has served the city of Newburgh, NY since the 1880s. Indeed the Department of Defense has now acknowledged the presence of on-base or off-base PFOS contamination of groundwater or drinking water at many current or former base facilities. 

  • Long Island, NY

On Long Island, 1,4-dioxane has been detected in 71% of the public water supply systems that have been tested to date and 45% had 1,4-dioxane levels greater than the USEPA health advisory level of 0.35 mg/l.

What happens next?

The Drinking Water Quality Council recommendations will now be considered by the Commissioner of Health, who has authority to either accept the recommended MCLs or to propose alternate MCLs. How the Commissioner intends to proceed will be announced via a Notice of Proposed Rulemaking in the New York State Register. Publication of the Notice will be followed by a 60-day public comment period and following assessment of public comments, the proposed regulation will either be revised or submitted for adoption by the Public Health and Health Planning Council, subject to the approval of the Commissioner of Health.

Any such regulation would go into effect upon publication of a Notice of Adoption in the New York State Register. Once adopted, public water systems of all sizes would likely need to test their water within the specified timeframes in the regulations and comply with the adopted MCLs.

Funding for Emerging Contaminants

In October, Governor Cuomo announced $200 million in grant funding to help communities address PFOA, PFOS, and 1,4-dioxane in their drinking water supplies. The funding will provide support and assistance for communities to combat these emerging contaminants. Of the grant funding, $185 million is available to communities across the state to upgrade drinking water treatment systems to combat emerging contaminants, prioritizing PFOA, PFOS, and 1,4-dioxane. The remaining $15 million has already been awarded to communities pursuing system upgrades and innovative pilot technologies to treat these emerging contaminants. Additionally, the Governor directed the Department of Health, Department of Environmental Conservation, and the Environmental Facilities Corporation to provide technical assistance to communities to help assess system needs and apply for grant funding to address all three of these emerging contaminants.

Kevin C. Murphy is a member of the Wladis Law Firm, P.C., located in Syracuse, New York. If you have questions about your water system, the emerging contaminant regulation or contamination, 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: http://www.netnewsledger.com/2018/02/05/improved-access-drinking-water-six-nations-grand-river-first-nation

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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EPA Releases Federal Lead Action Plan

It did not get much press, but earlier this month the Trump Administration, through the U.S. Environmental Protection Agency, U.S. Housing and Urban Development and U.S. Health and Human Services, announced the long-awaited Federal Lead Action Plan to Reduce Childhood Lead Exposures and Associated Health Impacts.  According to EPA, the goals of the “Lead Action Plan” are fairly straightforward:

GOAL 1:         Reduce Children’s Exposure to Lead Sources

GOAL 2:         Identify Lead-Exposed Children and Improve Their Health Outcomes

GOAL 3:         Communicate More Effectively with Stakeholders

GOAL 4:         Support and Conduct Critical Research to Inform Efforts to Reduce Lead Exposures and Related Health Risks

The plan resulted from collaboration across multiple federal agencies and departments comprising the President’s Task Force on Environmental Health Risks and Safety Risks to Children to reach a consensus on how to reduce children’s lead exposure.  The plan’s summary describes it as “a blueprint for reducing lead exposure and associated harms through collaboration among federal agencies with a range of stakeholders, including states, tribes and local communities, along with businesses, property owners and parents.”

According to EPA’s press release, EPA will take the lead and develop an implementation plan by March 2019 that will enable it to track its progress and update the public as it works to carry out the action plan and mitigate childhood lead exposure.

Mitigating childhood exposure to lead is significant.  As the Lead Action Plan warns, exposing children to lead can cause irreversible and life-long health effects and there is no safe blood lead level in children.  Even low levels of lead in blood can affect IQ, the ability to pay attention and a child’s academic achievement.  To reduce children’s lead exposure, the Lead Action Plan calls for reducing exposure in homes and child-occupied facilities with lead-based paint hazards, reducing exposure in drinking water, soils and air emissions, reducing exposure from occupational sources, reducing exposure in food and reducing exposure in cosmetics, personal care products and consumer items.   The action plan also calls for reducing exposure through enforcement and compliance.

While the plan has garnered some praise, it is not without its critics, either.  Some environmental groups and childhood health advocates contend the action plan does not go far enough to protect children as past efforts have.  See http://blogs.edf.org/health/2018/12/20/lead-action-plan-missed-opportunity/, in which the Environmental Defense Fund contends the plan is a missed opportunity to protect children. If you are interested in reviewing the plan yourself, a full copy of the plan is available at https://www.epa.gov/sites/production/files/2018-12/documents/fedactionplan_lead_final.pdf

Picture: https://ntp.niehs.nih.gov/

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.

 

Picture: www.youtube.com