Archive for the ‘Water Pollution’ Category

Documerica Project Captures Environmental Images From 1970s

Saturday, September 8th, 2012

New York City enjoyed classic fall weather last week with cloudless skies and crisp temperatures. Depending on how high your office or apartment was located, you could see all the way down to New York Harbor, see Yankee Stadium in the Bronx or Citifield where the Mets play. On days like these, it is hard to remember how bad the environmental in New York was in the 1970s.

Fortunately, EPA had the foresight to hire freelance photographers to capture images relating to environmental problems and everyday life in the between 1971-1977 in a project called Documerica. The National Archives has digitized much of this project and more than 15,000 images are available from the Archival Research Catalog (ARC). Visitors can search by location, media or type of pollution. Click Documerica to travel back in time to literally another world.

For my law school class, I cobbled together pictures showing the common environmental conditions we faced in New York City during the 1970s.  NYC in 1970s. You can literally breathe a sigh of relief and appreciate how far we have come in the past 40 years.

The New York Times has recently discovered the Documerica Series

NYC Launches Initiative To Reduce Grease Discharges To Sewer System

Wednesday, August 15th, 2012

Fats, oil and grease (FOG) found in food ingredients can build up in sewer systems and constrict flow, causing sewer back-ups and interfere with sewage treatment processes.  According to the federal EPA, 40% of sewer backups are caused by grease clogging the sewers

Many buildings in NYC have executive dining rooms, employee cafeterias and restaurants that can discharge FOG to the municipal sewer system. To minimize the volume of FOG that enters the sewer system, the New York City Building Code and Sewer Use Regulations require installation and maintenance of grease interceptors. The NYCDEP routinely sends inspectors to businesses to ensure that interceptors are correctly sized, properly installed, maintained, and operating effectively. If a business has an interceptor that is too small, the owner or operator will be ordered to install the proper unit. Penalties for non-compliance can range up to $10,000 per day per violation.

In addition to its compliance inspection program, the NYCDEP has launched a number of outreach programs to improve compliance with the FOG rules. The Commercial FOG Program assists restaurants and other Food Service Establishments (FSEs) to implement Best Management Practices (BMPs) to properly handle and reduce the amount of FOG discharged to the municipal sewer system. In addition to restaurants, the agency is also working with operators of nursing homes, fruit and vegetable stands and even laundries, and dry cleaners to keep grease and other materials and chemicals out of the sewer system.

The NYCDEP also launched a Residential Grease Compliance program. The agency has been reaching out to large co-op boards and condominium associations to help educate residents and owners on how to reduce FOG discharges.

For more information about the NYCDEP grease programs, visit


Split Decision for NJ Owner in Floodplain Case

Friday, July 27th, 2012

In the wake of increased damage from storms as well as growing recognition of the environmental benefits of floodplains, states are increasingly limiting development in areas that are prone to flooding during storms. This regulatory trend sometimes conflicts with state and federal historic preservation programs where historic building may be located in areas that are now considered flood hazard areas.

An example of the tension between these two regulatory initiatives was Asdal Builders, Inc v NJDEP, 2012 N.J. Super. LEXIS 108 (App. Div. 06/25/12). Note that this cite is to the published opinion. There was also an unreported decision containing some additional rulings that were omitted from the reported opinion. The unpublished ruling is available at 2012 N.J. Super. Unpub. LEXIS 1487 (App. Div. 06/25/12).

In this case, the appellants purchased 24-acres of former farmland that was located in a designated flood hazard area. Farming activities had ceased around 2000 and the building structures had fallen into disrepair. In addition, property was littered with a variety of debris and solid waste, including 14 tons of tires. Nonetheless, the Historic Preservation Office (HPO) of the New Jersey Department of Environmental Protection (NJDEP) had listed the property on the State Register of Historic Places.

After purchasing the property, the appellants removed the debris, restored the main building to a bed and breakfast that was said to be the first pre-existing, single-family residence that used a Civil War shell to achieved zero energy. The appellants also restored a smaller residential cottage, a barn, and a woodshed while removing a chicken coop, garage, and barn. They constructed a new garage in a different location and erected a stone retaining wall using foundation stones from the removed structures. The appellants also hired a farmer to re-establish the farm. The farmer mowed the existing natural vegetation, and then planted and cultivated orchard grass and hay on each side of a millrace.

Prior to commencing the work, the appellants applied for a Stream Encroachment Jurisdiction Determination (SEJD) from the NJDEP to replace the property’s septic system. The NJDEP informed the plaintiffs that a Stream Encroachment Permit (SEP) was not required based on the drawings that showed the proposed system would not require placement of any fill above the existing grades. Meanwhile, the local building department issued construction permits for the proposed renovation. The planning board approved the development, finding it complied with the local Flood Damage Prevention Ordinance and certificates of occupancy for the two residential structures and a certificate of approval for the garage were issued.

In May 2004, the NJDEP issued a notice of violation (NOV) advising the appellants that a SEP was required prior to construct the garage and for additions to the main house since these activities would disturb the floodway. NJDEP also required submittal of a restoration plan along with a SEP application.

Plaintiff then applied for an “after-the-fact” SEP or, alternatively, a hardship waiver. After the SEP application was returned for deficiencies, the NJDEP issued a second NOV for additional violations of the Flood Hazard Area Control Act, (FHACA). NJDEP later rejected the SEP request because the footprint of the existing buildings had been expanded and the septic field was built above existing grades in violation of a SEPJD. Following another site inspection, the NJDEP issued yet a third NOV based on the New Jersey Freshwater Wetlands Protection Act (FWPA) for disturbing vegetation within the transitional freshwater wetlands. NJDEP then recorded its notice of the wetlands violations as an encumbrance to the property’s deed.

The appellants sought administrative review of the SEP denial. While the SEP case was pending, NJDEP issued an Administrative Order and Notice of Civil Administrative Penalty Assessment (Order) imposing a $66,000 penalty for replacing native vegetation with a lawn and hayfield in a transitional wetlands area. NJDEP then issued a second administrative order seeking enhanced penalties of $100K for ongoing FWPA violations in the wetlands transitional area as well as $75K for new FWPA violations alleged to have been observed during a recent inspection.

During a two-day hearing, the appellants admitted it knew the property was in a flood plain and acknowledged that it had slightly expanded the footprint of the main structure when it had added an enclosed porch. However, the appellants argued that there was actually less net fill on the property because it had removed extensive debris and dilapidated structures from the property, and had reused some of the building material.

The administrative law judge (ALJ) agreed that the total net fill resulting form the activities at the property were “insignificant” and ruled that NJDEP’s denial of the SEP was arbitrary and capricious. The ALJ also dismissed the enhanced penalties under the EEEA since all of the plaintiff’s activities predated the statute. The ALJ also recommended dismissal of the $100K penalty due to the historic value of the structures and the insignificant profits generated by the B&B and farming activities.

The ALJ also ruled that the property was not eligible to be “grandfathered” for the wetlands farming exemption because farming had ceased for more than five years. However, the ALJ reduced the penalty assessment for the transitional FWPA violations to $10K per year of improper farming activities. Appellant was also ordered to reduce the size of its cultivated fields over the course of the next three growing seasons to conform to the boundaries of the wetland transition areas as well as to plant natural wetland transition area vegetation within that area.

NJDEP objected to the ruling and the NJDEP Commissioner issued a decision that modified some of the ALJ’s factual findings and rejected most of the ALJ’s conclusions. The Commissioner said the appellant was not entitled to an after-the-fact SEP because the existing structures had been abandoned and therefore there was no expansion of a pre-existing use. In addition, the Commissioner ruled the retaining wall, driveway, and garage were new structures that increased the prohibited fill in the floodway. He also rejected the ALJ’s finding that the obstructions were insignificant and disagreed with the “net fill” approach, ruling that plaintiff could not offset an increase in the obstruction to flow from one structure with a decrease in obstruction to flow from another. The Commissioner also denied the request for a hardship waiver, holding the appellants’ difficulties were self-created. The Commissioner then partially reinstated the $166K penalties, and said the corporate officer doctrine could be used to impose individual liability against appellants’ principals.

The unreported version of the court opinion addressed the issue of when buildings could be considered abandoned. While the court disagreed with the Commissioner’s findings, this part of the opinion did not appear in the published decision.

The court also found that appellants’ removal of debris and damaged structures, the renovation of the remaining structures and the repositioning existing fill into a stone wall did not cause additional displacement of flood volume but instead created an overall net result that either reduced or insignificantly altered the property’s obstruction to flow. This part of the opinion was in the unpublished decision but omitted from the published ruling.

Likewise, the analysis of the application of the “net fill” finding appeared in the unpublished opinion but was deleted from the published decision. The court had concluded the Commissioner erred when he declined to consider the totality of the site renovations and only examined each individual activity. The court said such a narrow view would violate the Legislature’s intent to preserve and restore pre-existing uses. The court also noted the removal of the debris helped remove the kind of hazards sought to be prevented by the FHACA and provided a public benefit.

In the unpublished portion of the opinion, the court also remanded the denial of the hardship waiver and upheld the Commissioner’s finding that the property was not grandfathered under the farming exemption. The court noted that the NJDEP had adopted its five-year rule based on EPA’s wetlands regulations and found the agency’s interpretation of the enabling statute was rationally based. The court said the property lost the exemption because farming was abandoned for a period greater than five years.

Turning to the issue of individual liability, the court said that persons who violated the FHACA regulations could be subject to penalty and injunctive relief. However, the court said the term “responsible corporate official” was not added to the definition of “person” until the October 3, 2006 amendments to the FHACA regulations. Since the Commissioner sought to impose individual assessment of penalties for violations prior to October 2, 2006, the court vacated this part of the Commissioner’s decision.

The court also rejected the Commissioner’s conclusion that NJDEP could assess enhanced penalties under the EEEA. The NJDEP asserted the renovations to the pre-existing structures that were completed in 2004 constituted “ongoing violations” and were not wholly past violations. However, the court distinguished “ongoing pollution violations” from “continuing violations” under the FHACA. The court held that the presence of renovated buildings on the property did not constitute FHACA “continuing violations”. Finally, the court concluded the Commissioner failed to properly weigh the credibility determinations made by the ALJ and remanded the matter for further review.

Bank Declines To Foreclose Because of Costs to Remedy Stormwater Violations

Wednesday, March 21st, 2012

When builders were defaulting on construction loans during the height of the Great Recession, states began turning to banks to ensure that partially completed developments remained in compliance with environmental laws. The greatest number of enforcement actions were brought against banks in California,Georgia and North Carolina with unconfirmed reports in other states.

Under the federal Clean Water Act (CWA) and state versions of that law, developers and builders are required to obtain stormwater permits and implement Storm Water Pollution Prevention Plans, Best Management Plans and/or Erosion Control Measures. These requirements are the reason that construction projects have those ubiquitous black and orange silt fences.

Unlike CERCLA, the CWA does not have a secured creditor exemption.  As a result, banks foreclosing on partially constructed sites may not only become responsible for complying with the full panoply of environmental laws associated with the development such as maintaining erosion controls but could also become saddled with fines and penalties for unpermitted sediment runoff

The bank in Carolina First Bank v. Stambaugh, 2011 U.S. Dist. LEXIS 144518 (W.D.N.C. 12/14/11) was aware of this trend and opted to refrain from foreclosing on its collateral because of the costs to remedy erosion controls and potential penalties associated with stormwater violations.

In this case, the borrower/defendants executed a promissory note in 2007 the amount of $245K to finance a real estate development project in North Carolina. In January 2008, the defendants were unable to pay the principal due on the first note and entered into a second promissory note that increased the total loan principal to $350K. Between February and November 2009, the plaintiff bank allowed the defendants to use loan advances to make monthly principal-and-interest payments on the second note.

The defendants defaulted on their loan in December 2009 and foreclosure proceedings were commenced in March 2010 that the defendants did not contest. The trustee noticed the sale of the property for April 30, 2010 but postponed the sale after it performed an environmental assessment and learned that the site had severe soil erosion issues that would cost at least $60K to repair along with costs for stormwater violations.

When the bank commenced foreclosure proceedings, the defendants apparently anticipating that the bank would eventually take possession of the property and failed to take any steps to prevent soil erosion or otherwise stabilize the site.

The trustee then abandoned the foreclosure proceeding and elected to sue the defendants on the note. The defendants filed a counterclaim, contending that soil erosion was caused by the Bank’s unreasonable delay in pursuing its rights and that the bank should pay for the damage.

The court granted summary judgment to the bank, holding that it did not unreasonably delay pursuing its remedies. The court said that the bank filed suit within seven months of the default which was well within the statute of limitations period.  The erosion damage, the court said, resulted from the defendant’s unilateral decision to cease spending money on or maintaining the property. The court said the bank did nothing to prevent the defendants from taking any action they deemed necessary with respect to the property.

Cleanup Under NY Water Law Order Is CERCLA Removal Action for Statute of Limitations Purposes

Monday, February 6th, 2012

Groundwater at many commercial properties in Long island and suburban areas of New York has been contaminated from discharges to dry wells, leaching pools and septic systems. In the 1980s, the New York State Department of Environmental Conservation (NYSDEC) frequently used consent orders issued pursuant to Title 17 of the Environmental Conservation Law which prohibits discharges of wastewater to groundwater without a permit to address groundwater contaminated from these sources.

Because the orders did not resolve CERCLA liability, they do not qualify as  administrative settlements that would allow the remediating party to bring a contribution action under section 113(f) of CERCLA. Recently, though, federal district court for the northern district of New York suggested that the costs might be recoverable as removal actions under section 107 of CERCLA.

In New York State Elec. & Gas Corp. v. FirstEnergy Corp., 2011 U.S. Dist. LEXIS 101201 (N.D.N.Y. 9/7/11), a predecessor of New York State Electric and Gas (NYSEG) owned and operated manufactured gas plants throughout New York State. NYSEG sought recovery of its response costs from First Energy under veil piercing and successor liability theories. Following a bench trial, the court found First Energy liable as an owner and operator of the sixteen sites during all or portions of the period from 1922 through 1940. The court then allocated liability between the two principal parties based on the the volume of manufactured gas produced at the facilities during their relevant periods of ownership and operation.

First Energy filed a motion for reconsideration. One of the findings that First Energy challenged was the applicable statute of limitations for the cleanup performed at the Plattsburgh MGP site. In the mid-1970s, the NYSDEC became aware of seepage of coal tar into the Saranac River. Apparently, the former MGP had discharged a coal tar/water mixture to an on-site lagoon that had been located approximately 30 feet from the Saranac River. After the tar in the emulsion settled to the lagoon bottom, the remaining water was discharged without further treatment into the Saranac River.

In 1981, NYSEG entered into an order with the DEC pursuant to ECL 17-501 to voluntarily undertake a remedial project to prevent coal tar from reaching the Saranac River from the tar lagoon and to remove coal tar from the river. NYSEG installed a bentonite-soil slurry wall to isolate contamination in the lagoon pond, excavated contaminated sediments and riverbank soils, deposited the excavated materials into a second containment area abutting the coal tar pond containment, and then constructed a second bentonite-soil slurry wall around this containment area. Both containment cells were capped and covered with topsoil. NYSEG also constructed a bentonite-concrete slurry wall adjacent to the Saranac River to halt further migration of coal tar that had already passed the limits of the containment areas. The 1981 consent order did not require NYSEG to conduct any investigation or perform response actions in the area where the former MGP plant was located.

In the early 1990s, coal tar was once again reported to be seeping into the river. NYSEG subsequently entered into a multi-site order on consent in 1994 that required the company to investigate and implement necessary response actions at 33 former MGP sites, including the Plattsburgh property. From 2004-2010, NYSEG performed response actions at the PLattsburgh site consisting of excavating coal-tar wastes from three gas holder foundations and tar lagoon, and other areas where coal tar was found. NYSEG has begun developing a remedial program for the river. NYSEG incurred over $32MM in response costs at the Plattsburgh Site and estimated the costs reach $42MM.

NYSEG sought to recover its response costs for some of the former MGPs from First Energy. In addition to arguing that it was not liable under veil piercing or successor liability theories, First Energy argued that the six-year statute of limitations for remedial actions had expired because the lawsuit had been filed more than six years after the start of the remedial action. NYSEG responded that the work constituted removal rather than remedial action and its claim was not barred because the work under the 1981 Consent Order addressed violations of state clean water laws, and was not pursuant to CERCLA.

The court found that primary purpose of the 1981 consent order was to address migration of coal tar emanating from the tar lagoon located on the site into the Saranac River and that the order was issued under the authority of ECL 17-501, not CERCLA or the state superfund law. The court also said that work was not intended to be a comprehensive investigation and remediation of the human health and environmental concerns associated with coal tar. Supporting this conclusion, the court explained, was the fact that while some limited sampling was performed where the former MGP plant had been located, the focus of the consent order was the tar lagoon and the migration of tar from that point to the Saranac River. Indeed, the court noted that New York had not yet identified coal tar as a hazardous waste in 1981. Thus, the court concluded that the actions taken pursuant to the 1981 DEC consent order did not constitute a remedial action under CERCLA sufficient to trigger the six-year statute of limitations.

The court then went on to say that if it was required to categorize the work performed under the 1981 Consent Order to resolve the statute of limitations issue, it would hold that the work was more akin to a removal action.

Third Circuit Upholds Corps Wetlands Determination

Friday, November 18th, 2011

In US v Donovan, 2011 U.S. App. LEXIS 22026 (3rd Cir. 10/31/11) this case, appellant Donovan owned a four-acre parcel situated within the watershed of the Sawmill Branch. Water from stream channels on the property flowed into the Sawmill Branch which was a navigable water. The Branch then flowed into the navigableSmyrnaRiver which was connected to the Delaware Estuary. In 1987, the Army Corps of Engineers (“Corps”) concluded that Donovan had filled approximately 3/4 of an acre of jurisdictional wetlands and warned him that he would have to obtain a permit if he wanted to fill more than one acre.

In July 1993, the Corps issued a cease-and-desist notice to Donovan after learning he had continued filling wetlands. The Corps ordered him to remove 0.771 acres of fill material or to submit a pre-discharge notification. After he refused to comply with the order, the federal government filed a lawsuit, alleging violations of the Clean Water Act (CWA). In 2006, the United States District Court for the District of Delaware concluded that Donovan had violated the CWA and entered a final judgment, imposing a $250K fine and requiring removal of 0.771 acres of fill.

After the Supreme Court’s decision in Rapanos v US, 547 U.S. 715 (2006), Donovan appealed, arguing that decision had deprived the Corps of jurisdiction over his land. In Rapanos, a four-Justice plurality held that to assert jurisdiction over wetlands, the government would have to show that the wetlands were “relatively permanent” and also had a “continuous surface connection” with navigable waters (the “plurality test). Justice Anthony Kennedy agreed with the conclusion but not the test that was used by the plurality. Instead, he said that wetlands would be subject to CWA if they possess a “significant nexus” with waters of the United States. He said this meant that that the wetlands “either alone or in combination with similarly situated lands in the region” would significantly affect the chemical, physical, and biological integrity of navigable waters (the “Kennedy Test”). Following a motion by the federal government, the case was remanded back to the district court to further develop a record.

At trial, the government introduced evidence showing that the stream channels on and around Donovan’s property were perennial. This evidence included analyzing hydrological connections to downstream waters, the wetlands’ potential for filtering pollutants, and the wetlands’ role in the aquatic ecosystem for fish and invertebrates. To rebut this evidence, Donovan simply provided an affidavit. He said the only source of water flow on his property was rainwater run-off from the adjacent highway and that the stream channels around his property were dry when between rainfall events.

The magistrate concluded that wetlands were subject to the CWA if they met either of the Rapanos tests. He then ruled the government had offered sufficient evidence to establish the Rapanos plurality test and that there was adequate evidence to support the Kennedy test. The district court adopted the magistrate’s recommendations and granted the Government’s motion for summary judgment.

On appeal, Donovan argues that the district court should not have used the Rapanos tests but instead should have relied on the pre-Rapanos decision in Rappa v. New Castle County, 18 F.3d 1043 (3d Cir. 1994). However, the Court of Appeals for the Third Circuit sided with the First and Eighth Circuits, and held that regulatory jurisdiction could be established over wetlands using either the Rapanos plurality or Kennedy tests.

The Third Circuit said that while Donovan’s affidavit alleged facts that could possibly raise a genuine issue of fact if the government had presented sufficient facts to satisfy the plurality test, it did not have to reach that issue because he had because he unquestionably failed to raise a genuine issue about whether Justice Kennedy’s test had been met. The court found the following facts supported jurisdiction under the Kennedy test:

  • Dissolved bromide and dye was placed into the wetlands near Donovan’s property and was observed in the Sawmill Branch, which became a tidal water approximately 2.5 miles from Donovan’s property;
  • The headwater wetlands of the Sawmill Branch which include Donovan’s wetlands helped to remove nitrogen and protect the Delaware Estuary from excessive nutrient loading;
  • The wetlands on Donovan’s property helped sequester pollutants such as zinc and polycyclic aromatic hydrocarbons (PAHs) from downstream water. Specifically, the evidence showed that the intact wetland flow path on Donovan’s property removed approximately 540 grams of zinc and 12 grams of PAH compounds over a 72-meter length while non-wetland flow path removed approximately 49 grams of zinc and 0.8 grams of PAHs over a 65-meter length. Absent Donovan’s wetlands, these pollutants would travel downstream, raising contaminant levels for up to 150,000,000 gallons of water;
  • The wetlands at Donovan’s land played an important role in the “aquatic food web” by providing habitats and nutrients for fish species as well as macro-invertebrates who, in turn, were important sources of energy and carbon for downstream habitats;
  • Fish on Donovan’s property were also found in downstream waters of Sawmill Branch Creek;
  • The tributary stream channels on Donovan’s land had a low gradient, meaning that the wetlands retained water for relatively long periods of time;
  • The wetlands performed important functions such as reducing sediment loads and pollutants from storm water as well as retaining and transforming nutrients for downstream navigable waters;
  • The wetlands on and adjacent to Donovan’s property discharged ground water, thereby maintaining stream flow and preserving fish and wildlife habitats.

The court said that Donovan’s affidavit did not address the effect the wetlands had on the chemical, physical, and biological integrity of downstream waters. Thus, the court said the record evidence clearly showed that Donovan’s wetlands alone significantly affected the chemical, physical, and biological integrity of “waters of theUnited States”.