NYSDEC Clarifies COC Deadline for 38 BCP Sites

August 8th, 2017

As regular readers of this blog are aware, the the 2015 amendments to the New York State Brownfield Cleanup Program (BCP) created three deadlines for applicants to obtain Certificates of Completions (COCs) depending when the site was accepted into the BCP.

  • Generation 1 (Gen1): sites accepted on or before June 22, 2008 have to obtain COC by December 31, 2017;
  • Generation 2 (Gen2): Sites accepted into the BCP between June 23, 2008 and June 30, 2015 have to obtain a COC by December 31, 2019; and,
  • Generation 3 (Gen3): Sites accepted between July 1, 2015 through December 31, 2022 have to obtain COCs by Mach 31, 2026..

The acceptance dates has generally been thought to refer to the date of the acceptance letter issued by the New York State Department of Environmental Conservation (NYSDEC). However, the statutory language provides that sites have a brownfield cleanup agreement executed after July 1, 2015 will have until the March 31, 2026 to obtain their COCs.

Because of the rush of BCP applications that were filed before the July 1, 2015 effective date of the 2015 amendments, 38 sites received acceptance letters before July 1, 2015  but have executed BCAs AFTER that date. NYSDEC recently clarified that this subset of Gen 2 sites are not subject to the 2019 COC deadline but instead will have until March 31, 2026 to obtain their COCs.

The NYSDEC recently issued a memo discussing this clarification and listing the 38 Gen 2 sites that will be subject to the Gen 3 COC deadline. The memo is available here

EPA Memo Details Proposed EPA Budget Cuts

August 8th, 2017

NYSDEC To Finally End Voluntary Cleanup Program

May 30th, 2017

In 1994, the New York State Department of Environmental Conservation (NYSDEC) established an administrative voluntary cleanup program (VCP) in which landowners, prospective purchasers and other parties could investigate and/or remediate sites that are contaminated with hazardous substances and petroleum under the supervision of the NYSDEC (See “Organization and Delegation Memorandum #94-32, Policy: Voluntary Cleanup Program”). When the cleanup was completed, the VCP applicant would receive a release from liability from NYSDEC. The VCP was administered pursuant to the NYSDEC Voluntary Cleanup Program Guide.

The Brownfield Cleanup Program (BCP) was intended to supersede the VCP. The NYSDEC stopped accepting VCP applications on October 31, 2003. Existing VCP applicants had the option of transitioning into the BCP by June 1, 2004 or to complete the remediation under the VCP. Indeed, at one point the NYSDEC would not allow purchasers of VCP sites to enroll in the BCP.

Back in 2015, the Town of Brookhaven filed a combined Article 78 petition and complaint to challenge a waste consolidation and capping remedy approved by NYSDEC under the VCP. The town argued, inter alia,  the remedy was arbitrary and capricious, that NYSDEC lacked authority to require the cleanup of the Site under the VCP, and that NYSDEC violated the State Environmental Quality Review Act (“SEQRA”) because the agency did  not  take  into  consideration the  proximity   of the  contaminated landfilled materials  to  the Carman River,  a New  York  State-designated Wild  and Scenic River that derived 95% of its flow from surrounding groundwater. The town sought an order requiring the Metropolitan Transportation Authority (“MTA”) and the Long Island Railroad (LIRR) to undertake a full remediation and removal of all contaminated soils and hazardous materials that had been disposed near the LIRR Yaphank station.

The state supreme court judge ruled that the NYSDEC lacked authority to create the administrative VCP. As a result, the court barred the agency from requiring the VCP volunteers from implementing the remedy approved in the NYSDEC a decision document. Town of Brookhaven vs Metropolitan Transportation Authority, No. Index No. 2015-04273 (Sup Ct.-Suffolk Cty)

The court said NYSDEC created the VCP “out of whole cloth” without enabling legislation. Moreover, the court noted:

“The DEC has not promulgated any Rules in the New York Code Rules and Regulations described or remotely resembling a Voluntary Cleanup Program. There are no Rules or statutes governing or guiding admission into the program, there are no Rules or statutes governing the obligations of a volunteer, and there are no Rule or statutes governing or guiding what benefits volunteers are to receive upon completion of the program. Without enabling legislation or Rules, the DEC has, in effect, written on a “clean slate” to create an entirely new program based solely on what DEC administrators may personally believe is good public policy, without guidance, instructions, or authority from the Legislature.

As a result, the court found NYSDEC violated the constitutional separation of powers/non-delegation doctrine and that its VCP was illegal, ultra vires, and contrary to law.

Rather than appealing this decision, the NYSDEC has decided to finally wind down the VCP.  The agency recently sent letters to the approximately 150 existing VCP projects informing them that they have until March 31, 2018 to complete a remedial program and receive a Release or No Further Action Letter. After that date, all Voluntary Cleanup Agreements (VCAs) will be terminated.  Volunteers who cannot complete their projects by that date may apply to BCP or enter into an Order on Consent under the state superfund program.  Projects that are currently subject to a multi-site VCA that cannot be completed by March 31, 2018 may pursue entry into the BCP on an individual site basis, or may be the subject of a multi-site Order on Consent.

We think the court erred that NYSDEC did not have the authority to create the VCP. Afterall, the NYSDEC has broad authority to abate pollution under ECL § 03-301 and to arrange for private parties to respond to petroleum discharges under Navigation Law § 176(7)(c). See also Consolidated Edison Co. of New York, Inc. v. Department of Environmental Conservation, 71 N.Y.2d  186, 192-93{1988). Nevertheless, 14 years after the BCP was enacted, we think NYSDEC is right to terminate the VCP.

Remedial Program Reform Proposals for EPA Administrator Pruitt

February 28th, 2017

Regulatory reform is at the centerpiece of the Trump Administration’s plan to stimulate economic growth. During the presidential campaign, candidate Trump vowed to rollback a variety of Obama Administration Climate Change Initiatives but said little about EPA remedial programs such as the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or superfund). Based on his testimony and follow-up written response to Congress, it appears that EPA Administrator Scott Pruitt recognizes the value of brownfield programs and the need to remediate contaminated sites. There also seems to be strong bipartisan support for the brownfield program in the House committee responsible for the EPA budget.

As a result, I have shared the following recommendations to Administrator Pruitt for reforming EPA’s remedial programs. These suggestions could improve the efficiency of the remedial programs without weakening environmental protections. Some of the changes could be achieved through legislative amendments but could be administratively implemented if Congress does not have the time to address environmental issues during the current term. The proposals are not in any order of importance

  1. CERCLA Continuing Obligations Guidance– The 2002 amendments to CERCLA added the Bona Fide Prospective Purchaser (BFPP) and Contiguous Property Owner defenses. These defenses (in particular the BFPP defense) were enacted to help incentivize purchasers to acquire and remediate contaminated properties so they can be put back into productive use. While EPA promulgated an all appropriate inquiries (AAI) rule to help define the pre-acquisition obligations necessary to be able to assert these defenses, there is little guidance from EPA on how property owners or operators may satisfy their “appropriate care” or “continuing obligations” so they can maintain their liability protection after taking title or possession of property. The 2003 “Common Elements Guidance” is inadequate. The lack of guidance and recent caselaw have created uncertainty for developers and undermined the value of these defenses. EPA should issue detailed guidance on what constitutes appropriate care. Developers and property owners should not have to rely on ASTM to provide guidance on how to comply with their legal obligations.

2. Revise “Enforcement Discretion Guidance Regarding the Affiliation Language of CERCLA’s Bona Fide Prospective Purchaser and Contiguous Property Owner Liability Protections” – This memo did not sufficiently address concerns raised by the Ashley decision that purchasers of contaminated property could lose their eligibility for the BFPP by agreeing to indemnify sellers. 

3. More Robust Use of PPAs and CPO “Assurance Letters”- With the passage of the 2002 CERCLA amendments, EPA announced in guidance that it would issue PPAs or CPO assurance letters only in rare instances because the landowner liability protections were self-implementing. However, these agreements can be incredibly valuable. EPA should urge its regional offices to issue such documents where they can facilitate redevelopment such as in urban superfund sites (e.g., GowanusCanal, Newtown Creek) and where municipal governments are willing to foreclose on contaminated properties and then convey title to redevelopers. 

4. Clarify Scope of Municipal Liability Protections Under CERCLA to Encourage Taking Title of Vacant Properties and Facilitate Reuse- There is considerable uncertainty among local government community if municipalities can invoke the protections of 42 U.S.C. 9601(20)(D) and (9601(35)(A)(ii) where they take title in lieu of formal tax foreclosure proceeding since this may not be “involuntary”. Local governments might be more willing to take title and assemble vacant properties so they would become more attractive to redevelopment if they could obtain clarity on the scope of this protection. Presumably, a purchaser from a municipality would then be able to assert the BFPP or third party defense. A related problem is that the BFPP defense would not apply to local governments who took title prior to January 11, 2002.

5. Reform EPA Remedial Programs Into a Single Unified Cleanup Program- Our nation’s remedial programs were created as we became aware of new concerns. This has resulted in different cleanup standards and procedures. We have separate staffs for CERCLA, RCRA, TSCA (PCBs), USTs, etc. We now have three decades of experience remediating sites. I think we should strongly consider combining these discrete offices into one streamlined remedial office that will provide consistent regulatory approach and reduce unnecessary staff. 

6. Clarify Lender Obligations Following Foreclosure- The original EPA lender liability rule contained a “bright-line” test for lenders to follow so they can be deemed to have taken commercially reasonable steps to sell property following foreclosure, thereby staying within the safe harbor created by the secured creditor exemption. Unfortunately, when the rule was vacated and the 1996 lender liability amendments were added to CERCLA, the “bright line” test was omitted. So lenders have no guidance on how to proceed during what is the worst economic downturn since the Great Depression. Can they reject an offer that is equal to artificially depressed price? How long can they hold onto property without losing protection? Some states allow for two years while others allow up to five years to sell the property. Greater clarity will help lenders move these properties.If control of Congress changes, this can be legislative proposal.  

7. Encourage States to Adopt Licensed Professional Programs– States are facing severe staffing constraints which are creating backlogs in site remediation.  EPA could use its authority under section 128 of CERCLA (approval of state response programs) as well as its RCRA delegation authority to have states adopt licensed site professional programs like MA, NJ and CT so that states could devote their limited resources to the sites that pose the greatest risk to human health and the environment. EPA could establish a national licensing program for consultants that sets forth minimum professional requirements and states could adopt these programs as part of their remedial programs. One way to accomplish this could be by amending the All Appropriate Inquiries (AAI) Rule to revise the definition of Environmental Professional. This could avoid having to promulgate a new regulation.  

8. Revise NCP- revising the NCP. It was last revised in 1990. Since then we’ve learned a lot about cleanup and have lots of informal guidance to help streamline the process and make it more cost-effective. Doesn’t make sense to continue to follow the RI/FS lockstep process. Why review five alternatives? The NY brownfield program requires applicants tp propose remedy and an unrestricted cleanup alternative, and this approach has been able to generate robust cleanups. The NCP could be revised to incorporate streamlined provisions for brownfield sites that will produce faster and more cost-effective cleanups while preserving right of contribution. Right now, firms are incentivized to follow the lock-step approach to preserve their ability to pursue cost recovery. 

9. Revise CERCLA Disclosure Requirements With Amnesty Program To Incentivize Accelerated Cleanups- Property owners are not currently required to disclose historic contamination. As a result, many sites remain unremediated until the owner is ready to sell the property. To help accelerate cleanups, I think EPA could announce it was going to change its disclosure rules from reportable quantity approach to contaminant concentrations and at the same time provide current property owners a one year amnesty period to voluntarily disclose contamination. Much like the EPA audit policy, owners who disclose the existence of contamination that they are not responsible for would be afforded BFPP status. They would have to exercise “appropriate care” but not full cleanup. The SARA Title III program resulted in substantial reductions in pollution. It seems worth the try to experiment with an amnesty period for contaminated sites. 

10. Seek Cost Recovery from Responsible Parties When Brownfield Grants Are Awarded – According to a 2004 EPA study, there may be 300,000 contaminated sites in the nation that may cost over $200 billion (not adjusted for inflation) to remediate.  Many brownfield sites were created when corporations closed plants and either relocated elsewhere in the country or exported the jobs overseas yet remains financially viable. EPA has been granting brownfield grants to local governments without considering if there is a responsible party.  Before EPA gives away public money, it should make a determination that there are no responsible parties. If responsible parties are available, RPA should give the responsible party an opportunity to conduct an investigation and remediation of the contaminated property is has left behind. If the responsible party declines to participate int he cleanup, EPA could then award the Brownfield grant and seek cost recovery. In this way, the brownfield funding program would not have to rely entirely on Congressional appropriations.

11. Move Away from Brownfield Grants/Loans and To Tax Credits- The brownfield financial incentives are becoming like public works projects. The funding often takes too long for private development. Rather than giving funds to local government to investigate and reuse planning, EPA could incentivize the private market to do this work by expanding and extending brownfield tax credits. The New York Brownfield tax credit program has resulted in an estimated $7.5B in investment in the state at a cost of $750MM. Tax credits put the upfront risk on the developer instead of the taxpayers. 

12.Adopt National Environmental “WARN” Obligations Under RCRA- to prevent future brownfields, companies closing operations should be required to notify relevant permitting authority at least 90 days in advance of closing to ensure that appropriate closure occurs so that public money does not have to be used to address cleanup or local government seeks brownfield funds.

13. Require States To Use Parceling To Encourage RCRA Brownfields- EPA RCRA Brownfield Reforms urged states to allow owners or operators of TSDF to sell off clean parcels of their facilities (e.g., portions never used for any waste management) while the HWMUs or SWMUs were undergoing corrective action. EPA should more forcefully use its delegation authority to allow this much needed reform.  

14. Clarify RCRA liability for Generator-only sites- There is much confusion if closure obligations for a generator site run with the land. In other words, a site may have been owner or operated by a defunct generator. A prospective purchaser is interested in redevelopment but is concerned it will become subject to closure obligations for the areas where wastes were managed. Presumably, generator sites could be treated as any brownfield site without the need to undergo formal RCRA closure.  

15. Add Landowner Liability Protections to TSCA for PCB Cleanups- Purchasers often take steps to qualify for CERCLA BFPP only to learn after taking title that the property has been impacted with PCBs and they are subject to TSCA cleanup. This might require Congressional action but I do not see any reason why TSCA should not have a BFPP defense. Congress added AAI and BFPP to OPA in 2004 with little controversy.

16. TSCA PCB Reform- The PCB cleanup and disposal rules are a bit RCRA-like, a bit CERCLA-like and not well integrated. The cleanup should also not depend on the original spill concentration but on current concentrations and media. I’d like to see the entire Subpart D to 40 CFR 761 repealed, and disposal of PCB-containing material handled entirely within RCRA via the listed-waste and LDR route. 

17. Adopt Restatement (Third) of Torts Approach to Joint Liability– When CERCLA was enacted, Congress said that liability should be premised on evolving concepts of common law. At the time of its enactment, the Second Restatement was in effect which favored use of joint liability for indivisible harm. However, this was before states began adopting comparative negligence statutes. The Third Restatement states that the law has shifted dramatically from the use of joint liability and that courts should try to find a basis for apportioning liability where there is a reasonable basis. Despite the publication of the Third Restatement in 2000, federal courts continue to cling to the doctrine espoused by the Second Restatement. Recently  an appeals court declined to adopt the suggestion of an amicus brief submitted by The American Tort Reform Association to use the Third Restatement to apportion liability for the Fox River cleanup. My post on this case is at: http://www.environmental-law.net/2012/08/7th-circuit-declines-to-apply-third-restatement-of-torts-in-apportionment-case/ . The Administration might want to have Congress clarify that CERCLA liability should be based on the Third Restatement or  EPA could issue interpretative guidance that it now considers the Third Restatement to be the governing law for CERCLA liability. This  would reflect the Congressional intent to follow the evolving common law and confirm the direction where the law has moved.

THE TEN COMMANDMENTS OF ENVIRONMENTAL LAW

February 23rd, 2017

The collective wit and wisdom from three decades of practicing environmental law (in no order of importance).

1.Thou shall not call the environmental lawyer the day before the closing

2. Thou shall not accept without further inquiry a Phase 1 reports that says there are no RECs

3. Thou shall be concerned when the Phase 1 says the tank was reportedly removed, asbestos was reportedly abated, or the dry cleaner was reportedly only a drop off location. 

4.If a tank be in the ground, it shall have leaketh

5. If a dry cleaner operated at the property, it shall have leaketh

6. He who is most anxious to close shall bear the environmental risk.

7. Thou shall looketh carefully at Phase 1 recommendations

8. Thou shall be concerned when the real estate partner asketh you to take a quick look at a “clean” phase 1.

9.Thou shall not underestimate the importance of public support during project development.

10. Thou shall know that you need a permit to drain the swamp

 

 

 

 

 

 

Pre-Publication Notice Identifying 30 Environmental Rules Subject to Regulatory Freeze

January 26th, 2017

In a prior post, we discussed the regulatory freeze that had been implemented by the Trump Administration on its first day in office. The moratorium applied to proposed rules issued by the Obama Administration since election day that had not yet gone into effect. We provided a list of environmental and energy rules that were potentially subject to the moratorium.

A notice will be published in the Federal Register identifying 30 environmental laws that will be frozen for up to 60 days. A pre-publication copy of the notice is available Here

What Obama-Era Environmental Regulations May Be Revoked Under the Congressional Review Act

January 24th, 2017

In our prior Post, we discussed the regulations proposed by the Obama Administration since election day that would be subject to the moratorium issued by the Trump Administration. In this post, we cover the Obama-era regulations that have already gone into effect that my be vulnerable to recession under the Congressional Review Act (CRA).  The CRA requires agencies to notify each house when regulations are issued. Congress has 60 “session” days from the date of the notification or after the rule is published in the Federal Register to issue a joint resolution of disapproval by a simple majority.

Once the disapproval resolution is signed by the president, the rule cannot go into effect or continue in effect.  Once rescinded, the executive branch is prohibited from reissuing it “in substantially the same form” or crafting a new rule that is “substantially the same” unless Congress enacts legislation specifically authorizing it.

The Congressional Research Service (CRS) has estimated that the 60-day period for repealing regulations will apply to all federal rules adopted after May 30, 2016.  Several conservative groups and the House Freedom Caucus have developed a “kill list” of environmental and energy-related regulations.  Based on the CRS lookback date and the regulatory “kill list”, the following rules that the Obama Administration finalized in 2016 could be subject to a disapproval resolution under the CRA:

  • Stream Protection Rule[1];
  • Energy Conservation Program: Energy Conservation Standards for Residential Dishwashers; [2]
  • National Pollutant Discharge Elimination System (NPDES) Municipal Separate Storm Sewer System General Permit Remand Rule;[3]
  • Greenhouse Gas Reporting Rule: Leak Detection Methodology Revisions and Confidentiality Determinations for Petroleum and Natural Gas Systems[4];
  • Hazardous Waste Export-Import Revisions[5];
  • Management of Non-Federal Oil and Gas Rights;[6]
  • Greenhouse Gas Emissions and Fuel Efficiency Standards for Medium- and Heavy-Duty Engines and Vehicles-Phase 2; [7]
  • Review of the National Ambient Air Quality Standards for Lead;[8]
  • Occupational Exposure to Respirable Crystalline Silica;[9]
  • Finding That Greenhouse Gas Emissions from Aircraft Cause or Contribute to Air Pollution That May Reasonably Be Anticipated to Endanger Public Health and Welfare;[10]
  • Standards of Performance for Municipal Solid Waste Landfills; [11]
  • Emission Guidelines and Compliance Times for Municipal Solid Waste Landfills[12];
  • Enforcement of Regional Standards for Central Air Conditioners; [13]
  • Effluent Guidelines and Standards for the Oil and Gas Extraction Point Source Category;[14]
  • Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources;[15]
  • Source Determination for Certain Emission Units in the Oil and Natural Gas Sector for PSD and NNSR;[16]
  • Energy Conservation Standards for Small, Large, and Very Large Air-Cooled Commercial Package Air Conditioning and Heating Equipment and Commercial Warm Air Furnaces.[17]

Disapproval resolutions may only be enacted as individual regulations. While the CRA provides an expedited legislative path for disapproval resolutions and prohibits the use filibusters in the Senate, each resolution is subject to up to ten hours of debate. Since Congress must pass a new budget, plans on repealing the Affordable Care Act and the Senate must complete confirmation hearings, it is unlikely there Congress could rescind more than a handful of regulations.

To address these constraints and enhance the use of the CRA, though, the House of Representatives recently passed the Midnight Rule Relief Act (H.R. 21)  that would amend CRA to allow Congress to repeal groups of regulations en masse instead of one at a time. It is unclear if the Senate will approve this measure.

[1] 81 F.R. 93,066 (December, 20, 2016)

[2] 81 FR 90072 (December 13, 2016)

[3] 81 FR 89320 (December, 9, 2016)

[4] 81 FR 86490 (November 30 2016)

[5]  81 FR 85696 (November 28, 2016)

[6]  81 FR 79948 (November 14, 2016)

[7]  81 FR 73478 (October 25, 2016)

[8] 81 FR 71906 (October 18, 2016)

[9]  81 FR 60272 (September 1, 2016)

[10] 81 FR 54422 (August 15, 2016)

[11] 81 FR 59332 (August 29, 2016)

[12] 81 FR 59276 (August 29, 2016)

[13] 81 FR 45387 (July 14, 2016)

[14] 81 FR 41845 (June 28, 2016)

[15]  81 FR 35824 (June 3, 2016)

[16] 81 FR 35622 (June 2, 2016)

[17] 81 FR 32628 (May 24, 2016)

What Obama “Midnight Rules” Are Subject to the Trump Regulatory Freeze?

January 22nd, 2017

Since the Carter Administration, it has become customary for outgoing presidential administrations to issue a plethora of new regulations between election day and the inauguration. These rules are often called “midnight rules”. In response, the incoming administrations have issued executive orders or memorandum to temporarily delay or “freeze” these midnight regulations” so the new administration had the opportunity to review these rules.

Several hours after Donald J. Trump took the oath of office, White House Chief of Staff Reince Priebus issued a Memorandum to all executive departments and agencies freezing all pending regulations. The moratorium postpones for sixty days the effective date for any regulation that has been published in the Federal Register but not yet gone into effect. The memo instructs agency heads to withdraw any regulation that had been sent to the Office of the Federal Register (“OFR”) but not yet published so that the rules may be reviewed by the department or agency head appointed or designated by the President. In addition, agency heads are prohibited from sending any proposed or final regulation to the OFR until department or agency nominees have been confirmed and assumed office.

The memo also said that for regulations whose effective date has been delayed to review questions of fact, law, or policy, the agencies should consider potentially proposing further notice-and-comment rulemaking. For delayed regulations that raise substantial questions of law or policy, the memo said agencies should notify the OMB Director and take further appropriate action in consultation with the OMB Director.

The following proposed regulations would appear to be subject ta the regulatory moratorium (in reverse chronological of publication date in the Federal Register):

  • Procedures for Chemical Risk Evaluation under the Amended Toxic Substances Control Act;[1]
  • Trichloroethylene (TCE); Regulation of Use in Vapor Degreasing under TSCA §6(a);[2]
  • Federal Acquisition Regulation: Sustainable Acquisition;[3]
  • Accidental Release Prevention Requirements: Risk Management Programs under the Clean Air Act;[4]
  • Financial Responsibility Requirements under CERCLA § 108(b) for Classes of Facilities in the Hard Rock Mining Industry;[5]
  • Financial Responsibility Requirements for Facilities in the Chemical, Petroleum and Electric Power Industries;[6]
  • Federal Plan Requirements for Commercial and Industrial Solid Waste Incineration Units;[7]
  • Protection of Visibility: Amendments to Requirements for State Plans;[8]
  • Addition of a Subsurface Intrusion Component to the Hazard Ranking System;[9]
  • Addition of Natural Gas Processing Facilities to the Toxics Release Inventory (TRI);[10]
  • Revisions to the Regulations for Candidate Conservation Agreements with Assurances;[11]
  • Trichloroethylene; Regulation of Certain Uses Under TSCA § 6(a);[12]
  • Formaldehyde Emission Standards for Composite Wood Products;[13]
  • Hazardous Waste Generator Improvements Rule;[14]
  • Energy Conservation Program: Energy Conservation Standards for Miscellaneous Refrigeration Products;[15]
  • National Emission Standards for Hazardous Air Pollutant Emissions: Petroleum Refinery Sector Amendments;[16]
  • Revisions to the Prevention of Significant Deterioration (PSD) and Title V Greenhouse Gas (GHG) Permitting Regulations and Establishment of a Significant Emissions Rate (SER) for GHG Emissions Under the PSD Program;[17]
  • Energy Conservation Standards for Uninterruptible Power Supplies;[18]
  • Corporate Average Fuel Economy (CAFE) for light-duty vehicles;[19]
  • National Emission Standards for Hazardous Air Pollutants for the Portland Cement Manufacturing Industry;[20] and
  • Clean Energy Incentive Program Design Details (CEIP) [21]

History shows that only a very small percentage of the regulations that have been temporarily frozen end up being rescinded or significantly modified. For example, President Clinton repealed less than 10 percent of the midnight regulations issued by the outgoing George H.W. Bush Administration. Of the 90 rules subject to the freeze imposed by the George W. Bush Administration, one rule was withdrawn in its entirety, three rules were withdrawn and replace and nine others were altered (e.g., different implementation date or reporting requirement). This is because to eliminate or change midnight regulations, a new administration would need to commence a new notice-and comment rulemaking and provide a rational explanation for why the rule is no longer appropriate.[23] Courts have invalidated changes that did not comply with notice-and-comment rulemaking, especially where EPA did not make specific factual findings.[24].

The regulatory freeze does not apply to recent rules that have already become effective. However, Congress could invoke the Congressional Review Act (CRA) to revoke some of those finalized regulations. We will identify the rules that are vulnerable to recission under the CRA in our next post.

 

[1] 81 FR 7562 (January 19, 2017)

[2] 81 FR 7432 (January 19, 2017)

[3] 81 FR  5490 (January 18, 2017)

[4] 81 FR 4594 (January 13, 2017)

[5] 81 FR 3388 (January 11, 2017)

[6] 81 FR 3512 (January 11, 2017)

[7] 81 FR 3554 (January 11, 2017)

[8] 81 FR 3078 (January 10, 2017

[9] 81 FR  2760 (January 9, 2017)

[10] 81 FR 1651 (January 6, 2017)

[11] 81 FR 95053 (December 27, 2016)

[12] 81 FR 91592 (December 16, 2016)

[13] 81 FR 89674 (December 12, 2016)

[14] 81 FR 85732 (November 28, 2016)

[15] 81 FR 75194 (October 28, 2016)

[16] 81 FR 71661 (October 18, 2016)

[17] 81 FR 68110 (Oct. 3, 2016)

[18] 81 FR 52196 (Aug.5, 2016)

[19] 81 FR 49217 (July 27, 2016)

[20] 81 FR 48372 (July 25, 2016)

[21] 81 FR 42940 (June 30,2016)

[22] reserved

[23]  Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983)

[24] See, e.g., New Jersey v. EPA, 517 F.3d 574 (D.C. Cir., 2008)(vacating Clean Air Mercury Rule); Nat. Res. Def. Council v. Abraham, 355 F.3d 179 (2d Cir. 2004); Envtl. Def. Fund, Inc. v. Gorsuch, 713 F.2d 802 (D.C. Cir. 1983); Nat. Res. Def. Council v. EPA, 683 F.2d 752, 761-63 (3d Cir. 1982).

EDR Commonground Interview On the State Environmental Due Diligence

December 9th, 2016

This interview occurred at the old Yankee Stadium in 2008 shortly after the last game was played. 

Court Dismisses Action Against DEC For Breach of VCA

November 28th, 2016

A 20-year old voluntary cleanup agreement (VCA) was the subject of the dispute before the New York Court of Claims in Alaskan Oil, Inc., v. State of New York, Claim No. 116072 Motion No. CM-81863 (Ct. Claims 7/25/16).

In this case, claimant Alaskan Oil Inc. acquired approximately 40 properties owned by Parrish Energy Fuels, Inc., and Webber Oil Company in 1994 and then sought to enroll the sites into the newly-created New York State Department of Environmental Conservation (NYSDEC) Voluntary Cleanup Program (VCP). After over negotiating for more than a year, Alaskan Oil entered into a VCA dated February 5, 1996 that covered all 40 sites. The VCA provided, inter alia, that Alaskan Oil would implement and complete remedial actions at all of the covered sites as well as reimburse NYSDEC for up to $66,000.00 in oversight costs.

Initially, work progressed pursuant to a schedule approved by NYSDEC that contemplated completing cleanup of all 40 sites by December 1998. However, only a handful of sites were remediated by the end of 1998. The pace of cleanups continued to lag and when Alaskan Oil ceased work in 2004, 19 sites remained unremediated. As a result,  NYSDEC advised Alaskan Oil in October 2005 that it had failed to comply with the VCA and that the VCA would be terminated within thirty days unless Alaskan Oil came into substantial compliance with the terms of the VCA. After a series of meetings failed to produce any progress, NYSDEC terminated the VCA in September 2007 based on material breach of contract for failure to perform its obligations.

The parties again held several meetings but could not resolve their dispute. Alaskan Oil then filed an article 78 proceeding in January 2008, seeking to determine if DEC had acted within its authority. However, since the proceeding involved contract action against the State, the action had to be discontinued. Alaskan Oil then filed a claim with the Court of Claims in May 2008 alleging that it had suffered $1.3 MM in monetary damages as a result of NYSDEC’s actions. Specifically, the claimant alleged NYSDEC made it more difficult under the VCA to bring its sites into compliance, that the Region 6 technical staff continually interrupted business operations that caused or contributed to claimant’s inability to meet the terms and conditions of the VCA. Alaskan Oil also claimed that the Region 6 staff forced it to comply with more stringent cleanup than required for other sites under the VCA or sites operated by its competitors.

NYSDEC initially claimed that Alaskan Oil had filed its complaint too late because the alleged actions of interference occurred from the 1990s to 2001. However, in a Decision and Order dated September 29;2008, the Court ruled that the claim arose on the date the VCA was terminated and therefore, the claim was timely.

After Alaskan Oil was granted leave to file a late claim, the NYSDEC moved for summary judgement arguing it was immune from liability because it was acting pursuant to its authority under the Navigation Law, citing the savings clause of Navigation Law § 176 (2)(b)., which states:

“Section eight of the court of claims act or any other provision of law to the contrary notwithstanding, the state shall be immune from liability and action with respect to any act or omission done in the discharge of the department’s responsibility pursuant to this article; provided, however, that this subdivision shall not limit any liability which may otherwise  exist for unlawful, willful or malicious acts or omissions  on the part of the state,· state agencies, or their officers, employees or agents or for a discharge  in violation of section one hundred seventy-three  of this article.”

In response, Alaskan Oil asserted that NYSDEC was not immune because its employees committed unlawful, willful or malicious acts or omissions. In support of this argument, Alaskan Oil pointed to notices of violations and a proposed administrative Consent Order issued by the NYSDEC Region 6 office for non-compliance with the Petroleum Bulk Storage ACT, that the Region 6 office required more stringent cleanups at two sites than required at other similar facilities and a demand for reimbursement of $261,223.58 incurred for a cleanup conducted by Region 6 related to a 1988 spill which Alaskan Oil alleged breached the indemnity.

However, the Court found these allegations did not fall with the exception to the Navigation Law’s immunity shield because they related to sites or events outside of the VCA. Accordingly, the Court concluded that NYSDEC carried out its responsibilities under the Navigation Law in a lawful, non-willful and non- malicious manner, and dismissed Alaskan Oil’s claim.