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

NYS Energy Efficiency Goals

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

Need for Energy Storage

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

The Role of Energy Storage in New York

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

Goals

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

Incentivizing Battery Implementation

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

Roadmap

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

 

Picture: rev.ny.gov

 

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

 

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

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

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

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

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

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

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

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

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

 

“Universal Wastes”

To Avoid Penalties Ensure they are Handled Correctly

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

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

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

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

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

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

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

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

Answers to Common Questions

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

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

 

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

Picture: convergencetraining.com

 

Kevin Murphy

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

More Posts - Website

“Universal Wastes”

To Avoid Penalties Ensure they are Handled Correctly

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

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

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

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

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

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

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

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

Answers to Common Questions

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

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

 

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

Picture: convergencetraining.com

 

Kevin Murphy

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

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NY-Sun Solarize Initiative Update

solar_panels2

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

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

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

How does it work?  It does through several ways.

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

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

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

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

Picture: www.proudgreenhome.com

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

 Waste-Management

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

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

The four areas of delayed enforcement involve:

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

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

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

 4.   Construction and demolition facility fill material sampling requirements

The components of the letter are as follows:

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

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

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

 

Picture: nationalyouthcouncil.org

 

 

Kevin Murphy

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

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

Wetlands IV

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

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

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

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

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

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

Groundwater recharge/discharge

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

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

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

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

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

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

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

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

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

 

Photo: lookfordiagnosis.com

Environmental Enforcement in 2017

Mulch

Is Your Mulch Processing Facility in Compliance with the Law?

New Regulations took Effect on November 4, 2017

Effective November 4, 2017, Mulch Processing Facilities in the state of New York are subject to regulation under the state’s revised and updated Solid Waste Management Facilities rules. Mulch Processing Facilities create a product derived from tree debris, yard trimmings, and other suitable woody material, which is intended for use on soil surfaces to prevent the growth of weeds and minimize erosion. The New York Department of Environmental Conservation (NYSDEC) is regulating the production and storage of mulch in order to reduce environmental impacts including dust, odor, adverse water quality, and fires.

A Mulch Processing Facility is defined as a facility that processes yard trimmings (other than grass clippings), tree debris, and wood debris into mulch. On December 28, 2017, the New York Department of Environmental Conservation announced the availability of a new guidance document intended to assist the owners and operators of mulch processing facilities.

The following are not regulated as a Mulch Processing Facility, but are subject to separate and distinct regulation under the NYSDEC’s full set of Solid Waste Management Facilities codes and regulations:

  •  the processing of construction and demolition (C&D) debris into mulch;
  •  a facility for combustion or thermal treatment; and
  •  a facility that composts yard trimmings.

For purposes of clarification, unlike the processing of mulch, composting is the aerobic, thermophilic decomposition of organic waste to produce a stable, humus‐like soil amendment used as a source of nutrients, organic matter, liming value, etc.

 Regulatory Overview

Mulch Processing Facilities are regulated under one of three different ‘tiers’ based on the total quantity of material on site at any given time, including both incoming material as well as processed material. The three regulatory tiers consist of exempt facilities and those that need to either be registered or permitted. See the chart below for a breakdown of the three regulatory categories.

In addition to the types and quantities of materials accepted, facilities will be held to one or more of the following:

  •  pile size and separation distance restrictions;
  •  contaminant preclusion and removal;
  •  the marketing and movement of their product;
  •  storage restrictions and time frames;
  • temperature monitoring and pile restacking (See Page 8);
  •  the development of run‐on and run‐off plans; and
  •  buffer zones from properties and water resources.

Adulterated or Contaminated Materials

Mulch Processing Facilities can accept, process, and store the following materials:

  •  yard trimmings (other than grass clippings);
  • tree debris including tree and shrub parts, including branches, stumps, and trunks, as well as other similar woody vegetation;
  • wood debris including unadulterated wood pallets and unadulterated wood that originates from wood product manufacturing or other similar sources; and
  • finished mulch products generated elsewhere.

Mulch Processing Facilities are not permitted to accept, process, or store the following materials:

  •  construction and demolition (C&D) debris; and
  • adulterated or contaminated wood.

Spotting contamination in a waste source or finished product pile can be challenging. Contamination can range from unwanted additions to the pile such as rocks and plastic, to adulterated or contaminated wood products. Physical contaminants can damage the processing equipment, and lead to a low-quality product. Adulterated or contaminated wood can pose a significant health risk when exposed to humans, wildlife, and the environment.

Types of adulterated or contaminated wood:

  • adhesives and paint;
  • creosote‐treated wood;
  • CCA‐treated wood;
  • asbestos‐contaminated material; and
  • other pesticide or pressure treated lumber.

 

CCA Treated Lumber

CCA‐treated lumber

often has a visibly greenish hue

 

 

Creosote

 

Creosote‐treated lumber is found frequently in railroad ties and marine structures

 

 

 

Small Contaminates

 

Small contaminants

from mulch

 

 

Mulch tiers

 

 

 

 

 

 

 

 

 

Types of physical contamination

  •  plastics
  • C&D debris
  • rocks, stones
  • garbage, strings and rope; and
  • materials that will readily compost and generate heat.

Odor Issues

When managed properly, and only exposed to aerobic conditions, mulch piles should not produce objectionable odors. Facilities must be mindful of neighbors – odor inspections should be conducted along the perimeter of the facility, recorded, and any odor complaints need to be addressed. If necessary, the use of odor neutralizing sprays can be implemented. However, it is important to note that objectionable odors from a mulch pile may be indicative of other issues. If piles become too large, hot, or wet, they may undergo anaerobic decomposition, and thus emit odors. For double ground mulch, keeping these piles as a coarse grind while they “age” until they are closer to sale can minimize odor risks. Turning or restacking piles can also help to prevent odors (see: Fire Risk and Safety section) and should be done under wind conditions that minimize offsite impacts.

Pile Size and Storage Limitations

Pile size limitations in Part 361‐4 are based on the type of grind the material has been through as well as the location of the facility.

Piles must be triangular in cross‐section and sized to minimize anaerobic conditions within the pile, which will limit odor impacts as well as reduce the risk of fires. Note: All piles must be at least 10 feet apart. Standing water on the storage area must be minimized.

Recordkeeping and Reporting

All facilities must keep records of daily operations and must report annually to DEC by March 1st of each year.

Site Design Criteria

Mulch Processing Facilities must employ best management practices appropriate to their operation to restrict the amount of run‐on and

run‐off generated on the site. Facilities must also adhere to specified buffer zones between property, water features, and all materials (including both processing and storage, listed below).

Pollution Prevention

Mulch processing sites must take care to prevent water pollution resulting from their processing activities. Because water both entering and exiting the site have the potential to bring in and off contaminants, all registered and permitted facilities must have a written run‐on and run‐off plan that is approved by DEC.

The water sources listed above can contain many different contaminants:

  • BOD/COD
  • Nutrients
  • Turbidity

Fire Risk and Safety

Tree debris and wood debris are highly combustible and there are many ways a mulch pile could catch fire, either spontaneously or through human action. These fires are difficult to extinguish and have a high risk of spreading to nearby piles and structures. It is important for facilities to have a plan in place and work with their local fire departments to ensure preparedness in case of a fire emergency (including planning for a reliable water supply).

Myth: Driving heavy machinery on mulch piles to process them for a better product, compress them for added space, and reach the tops of piles are part of normal operation.

Compressing a mulch pile (making it denser) is known to cause spontaneous fires. When the pile is compressed, aeration is stopped, and the pile becomes anaerobic and begins to ‘cook.’ Temperatures can easily reach unsafe levels.

When oxygen/air is introduced suddenly into a hot, anaerobic pile, flash fires can occur. Keep the piles loose!

 

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

 

Pictures:

screenmachine.com

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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Wetlands: Part Three. Federal Regulation of Wetlands.

Wetlands Part III

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

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

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

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

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

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

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

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

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

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

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

 

Picture: www.stocktongov.com