DEE-11: Inactive Hazardous Waste Disposal Sites Enforcement Policy
The DEC Policy System
Department ID: DEE - 11
Program ID: N/A
Issuing Authority: Henry G. Williams, Commissioner
Originating Unit: Environmental Enforcement, Compliance Assurance Bureau
Signature: Henry G. Williams
Date: 10 December 1984
Phone: (518) 457-4348
Issuance Date: 10 December 1984
Latest Review Date (Office Use):
Consistent with the Civil Penalty Policy; Order on Consent Enforcement Policy; Record of Compliance; Natural Resource Damages and Small Business Self-Disclosure Policy:
- The policies and procedures set out in this document are intended solely for the use and guidance of DEC personnel. They are not intended to create any substantive or procedural rights, enforceable by any party in administrative and judicial litigation with the State of New York. DEC reserves the right to act at variance with these policies and procedures.
- Any penalty calculations undertaken hereunder by DEC in anticipation of litigation are exempt from disclosure under the Freedom of Information Law.
- Pursuant to §4547 of the Civil Practice Law and Rules of the State of New York, all evidence or conduct of negotiations or settlement are inadmissible as evidence as proof of liability for or invalidity of the claim which is disputed as to either validity or amount of damages.
- The penalty amounts calculated with the aid of this document in adjudicated cases must, on the average and consistent with consideration of fairness, be significantly higher than the penalty amounts which DEC accepts in consent orders which are entered into voluntarily by respondents.
This document establishes the policies and procedures by which the Department of Environmental Conservation (DEC) is to require persons responsible for the disposal of hazardous waste at inactive hazardous waste disposal sites to develop and implement remedial programs at such sites.
The inactive hazardous waste disposal sites program has two major purposes:
- to learn as much information as possible about hazardous wastes disposed of at sites; and
- to evaluate the threat, potential as well as actual, posed by such disposal and, where necessary, ensure that action is taken to eliminate the threat.
These twin concerns have been addressed by the Legislature in Article 27, Title 13, of the Environmental Conservation Law (ECL). That title requires DEC to prepare an inventory of inactive hazardous waste disposal sites in the State for the purpose of investigating, among other things, the volume, nature, source and time period of hazardous waste disposal. In addition, that legislation authorizes DEC to require that those hazardous waste disposal sites which are posing environmental problems be cleaned up.
The legislation states that if an inactive hazardous waste disposal site constitutes a significant threat to the environment, DEC may order responsible parties to develop and implement a remedial program for the site. What this means is that if an inactive site meets a certain threshold in terms of the environmental danger it presents, DEC may take enforcement action.
The determination of whether a site poses a significant threat to the environment is essentially a scientific judgment. Are natural resources or the public welfare in any way threatened by the fact that any of these wastes were placed at the site? If wastes have not actually contaminated the environment, what is the likelihood that such an impact may occur in the future? What is being called for is an environmental risk assessment, and if the scientific judgment is that the risk is "significant," then DEC has the authority to take action against those who caused, or contributed to causing, the risk.
The determination of what constitutes a significant threat to the environment has yet to be defined in either a judicial decision or in Departmental rules and regulations (Part 375 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York is currently being finalized). The determination must be reached on a case-by-case basis, and the scientific definition must be intimately tied to the legal definition.
For this reason, the relationship between the scientist and the lawyer in evaluating whether DEC has the authority to proceed with enforcement action must be close and continuing. The lawyer is unable to determine, on his or her own, whether such a risk exists. Without the scientist's exploration of the facts concerning the disposal of hazardous waste at a site and the potential harm which can result from those facts, the lawyer is generally unable to take legal action, or even to know whether DEC has the authority to take legal action, to require someone to do something about the situation.
The relationship between lawyer and scientist must begin at the time when an evaluation is made of whether a significant threat to the environment exists at a site. It must continue during the enforcement phase during negotiations, what relief DEC should insist upon in order to address the significant threat or, if the matter goes to litigation, what evidence exists to demonstrate that the threat exists and that relief is necessary. It must extend to the time when a remedial program is implemented at the site, as the lawyer and the scientist oversee compliance with any order that is issued.
It must be noted that enforcement action is only authorized for those sites which pose "a significant threat to the environment." Therefore, one limitation on DEC's enforcement responsibilities is that DEC's authority to require cleanups extends only to those sites which have been determined to pose, or are suspected of posing, an actual or a potential threat to the environment. Responsibility for sites which do not pose such a threat rests with the Division of Solid and Hazardous Waste.
The decision of when a transfer of a matter should be made from the Division of Solid and Hazardous Waste to a DEC enforcement attorney is to rest upon a number of factors. Among the criteria to be used in making this determination are the following:
- Potential for damage to the environment or danger to health;
- Availability of personnel and other resources needed to achieve results satisfactory to DEC;
- Legal precedents which may be established to assist departmental programs;
- Potential for determining, placing liability upon and recovering from responsible parties; and
- Time estimated for achieving results satisfactory to DEC.
With regard to the determination of who is a "person responsible," Section 27-1313(4) of the ECL states that "applicable principles of statutory or common law liability" govern. Based upon current interpretations of New York common law, articulated in several judicial decisions, as well as under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), all parties in the waste disposal chain are potentially responsible; this group includes the generators of the hazardous waste at a site, the transporters of the waste to the site, and the operators and owners of the site, past and present.
The standards of liability to be applied to these parties are strict liability and joint and several liability. Here again, the Common Law of the State of New York and CERCLA provide the legal authority for this proposition.
The most important goal of the inactive sites enforcement program, and the one which DEC is authorized to achieve through Article 27, Title 13, of the ECL, is to require the development and implementation of a remedial program. The key components of a DEC order mandating remedial work are as follows:
- Conduct a specified field investigation program or prepare a field investigation program proposal to meet specified standards, subject to DEC approval, and report the results to DEC.
- Propose a set of remedial options and select one, subject to DEC approval.
- Excavate, dispose of, destroy or decontaminate on-site wastes, as appropriate, or prepare a remedial program proposal to meet specified standards, subject to DEC approval.
- Correct off-site impacts, if necessary.
- Conduct long-term monitoring and maintenance of the site and, if necessary, of affected off-site areas.
- Assume responsibility for any future adverse impacts on- and off-site.
The relief satisfactory to DEC for inactive hazardous waste disposal sites should generally be the same whether the remedial program is agreed upon between the parties in an order on consent on the one hand or is sought in the context of an enforcement proceeding on the other. DEC cannot negotiate away important public health or environmental protection measures. Nevertheless, DEC may negotiate the aspects of the content of a field investigation program and/or a remedial program, thereby allowing the respondent to participate in the shaping of the program, rather than to risk being mandated to carry out the program as determined solely by DEC in the context of an order issued after an enforcement hearing.
In many situations, responsible parties are unwilling to consent to performing a remedial program until they have first conducted technical investigative work at the site. DEC may, therefore, issue orders on consent for such investigations and postpone requiring specific remedial work until an evaluation has been performed of the results of the investigations. In these cases, it is essential that in the first Order on Consent, DEC reserve for itself the right to insist upon additional investigative work, if necessary, and remediation; the agency must avoid waiving the opportunity to subsequently order this relief.
Another type of relief which DEC should usually seek is reimbursement for all of its administrative costs, past as well as estimated for the future. These costs include those which are attributable to investigating a site, securing compliance, and overseeing the remediation. The reimbursement should cover such items as:
- Employee salaries, calculated on the amount of time devoted to work on the matter;
- Travel, sampling and analysis, and other out-of-pocket expenses;
- Certain enforcement hearing costs;
- Technical, scientific, investigative and legal services provided to DEC from outside the agency;
- Monitoring costs; and
- Other expenses.
DEC should usually also attempt to obtain a financial undertaking, such as a bond, to guarantee performance of the remedial program.
Among the other provisions which should be included in the relief sought by DEC are the following:
- Reservation by DEC of the right to pursue future enforcement action in a case where the order is subsequently violated, where the order is limited in scope, thus anticipating the need for additional relief, or where a condition is found to exist which poses an imminent danger to health or welfare or is likely to result in irreversible or irreparable damage to natural resources;
- Entry and inspection of the site by DEC staff and by personnel acting on behalf of DEC, access by DEC to documents relevant to the subject of the order, and the opportunity for DEC to obtain split samples;
- Easements or other authorizations to be obtained by the respondent to carry out the terms of the order;
- "Binding-on-successors" provision;
- Naming of a project coordinator; and
- Notification to DEC of the prospective transfer from the respondent to another party of the property that is the subject of the order.
IV. Enforcement Methods for Achieving Goals
The three primary administrative mechanisms for achieving the foregoing goals are:
- Summary abatement orders - Article 71, Title 3, of the ECL - The summary abatement order is a powerful mechanism which is appropriately used in hazardous waste enforcement. Since invoking this authority requires "an imminent danger to the health or welfare" or "irreversible or irreparable damage to natural resources," the threshold will be met in many situations involving hazardous waste due to the substantial threat to the health and the environment and the consequent public harm that may result from the improper disposal of hazardous waste.
- Hearings - As a result of the high costs associated with the proper disposal of hazardous waste, administrative enforcement hearings will need to be held more frequently since it is anticipated that settlements will be harder to achieve in this enforcement area as contrasted with others. DEC must commence enforcement hearings whenever it becomes apparent that a settlement acceptable to the agency will not be achieved; the foregoing statement is not meant in any way, however, to preclude the initiation of enforcement proceedings at any time after DEC staff suspect that a site poses "a significant threat to the environment."
- Orders on Consent - Consent orders will be DEC's most frequently used enforcement approach for hazardous waste violations. However, in those situations where immediate relief is required in order to protect public health and/or the environment, DEC may not be able to afford to await the conclusion of negotiations concerning a consent order; a more expeditious enforcement process will have to be used, such as a summary abatement order.
- Findings of fact and determinations - Under Section 27-1313 of the ECL, the Department may itself implement a remedial program at an inactive site if the Commissioner finds that the significant threat presents "an imminent danger of causing Irreversible or irreparable damage to the environment" and the public interest would be prejudiced by delay. DEC enforcement attorneys are to prepare the necessary administrative documents to effectuate this relief and then to arrange for referral of the matter to the Attorney General's Office for commencement of a cost recovery action.
In addition to the foregoing administrative mechanisms, DEC will work with the Attorney General's Office in developing certain Matters for judicial enforcement. In accordance with established policy, matters to be referred to the Attorney General's Office require the approval of the General Counsel.
Once a site has been deemed appropriate for enforcement, the following four sets of activities are to be undertaken:
- Initial investigation;
- Ongoing site investigation and negotiation;
- Litigation (in some cases); and
- Post-result obligations.
- Initial Investigation
The initial investigation will include, among other things, site visits by appropriate DEC personnel or consultants, discussions with other relevant DEC staff, and a review of existing file materials. Contact with the New York State Department of Health, the New York State Attorney General's Office, the United States Environmental Protection Agency (USEPA), local and county officials, citizens residing In the vicinity of the site, and persons believed responsible for conditions at the site may also be appropriate at this stage. in the ordinary case, the initial investigation should not extend beyond three months.
During this process, DEC should take full advantage of the authority granted to it by Sections 27-1307 and 27-1309 of the ECL. These provisions empower the agency to obtain information from responsible parties in such areas as their current and past hazardous waste generating, transporting and disposal activities. The responsible parties must furnish the requested information; a failure to perform this duty subjects the parties to sanctions under Section 71-2705 of the ECL.
In some situations, no person responsible for the hazardous waste disposal site will be found, or sufficient evidence cannot be gathered to prove a person's responsibility. In other situations, the only persons who are arguably responsible for the site will be found to have insufficient funds to pay for the remedial work. In situations like these, it will be unavailing for enforcement personnel to continue pursuing the matter. Remedial work at sites in this category may have to await funding opportunities provided by one of the "Superfunds" or by A special legislative appropriation.
- Ongoing Site Investigation and Negotiation
This phase will constitute the longest and most important one in DEC's enforcement efforts on a site. Further, the ongoing evaluation made of a site must be integrated with the decision to begin to head the matter toward a legal resolution. The amount of additional on-site investigative work deemed to be necessary before DEC enforcement personnel are able to initiate negotiations or litigation will vary in every case. For most sites a substantial technical effort will be required before the legal process can begin.
Once sufficient information has been compiled, and assuming that there is perceived to be no need for immediate litigation, DEC should ordinarily attempt to negotiate Orders on Consent. As noted above, it is to be the goal of DEC to obtain the following four elements in any enforcement document the agency negotiates:
- A commitment to develop and implement a full remedial program satisfactory to DEC;
- Recovery of expenses committed by DEC to the investigation of the hazardous waste disposal site, including any consultant and laboratory services;
- Recovery of monies that DEC anticipates expending on the supervision of construction work involved in the remedial program and in the monitoring and maintenance phase which follows the construction elements of the program, including funding for any onsite monitors during both phases; and
- Imposition of financial undertaking requirements, as appropriate.
The negotiation period may be longer in the inactive sites program than in other DEC enforcement programs. As a result, it is likely that in many cases additional data will have to be generated while settlement discussions are being conducted. Judgment will have to be exercised in determining such issues as the following:
- The negotiating posture of the agency, including the parameters of acceptable terms for Orders on Consent;
- The appropriate length of time over which negotiations should be conducted, including an assessment of the amount of progress being made toward a settlement; and
- The point at which the commencement of an enforcement action, administrative or judicial, is necessary.
It is essential that DEC enforcement personnel monitor closely the progress of negotiations to avoid allowing the process to become prolonged. The time period for the conduct of settlement discussions depends upon such factors as the type of relief sought (for example, field investigation versus full remedial program) and the availability to DEC of resources to perform the work itself if resolution is not achieved. In any event, however, as to an investigation by a responsible party of a site for which Phase II State Superfund monies are available, DEC is not to permit the negotiation to extend beyond 60 days or, in the unusual case, 90 days.
At the conclusion (or at an appropriate moment during the course) of negotiations, an Order on Consent is to be prepared. If Negotiations are unsuccessful, litigation is to be initiated.
In some cases, responsible parties will undertake investigative and/or remedial work without having executed an Order on Consent. Since the work is being performed voluntarily, DEC does not have enforcement control over the activities. For this reason, DEC personnel must scrutinize closely the responsible parties' work. If the work is inadequate or negligently performed, DEC must be in a position to know, and this knowledge is best gained through oversight. Once having concluded that "a significant threat to the environment" continues to exist, despite the efforts of the responsible parties, DEC can initiate enforcement action.
The interaction among the Department of Health, the Attorney general's Office and other State agencies is crucial to success in this area. The importance of Health Department assistance in evaluating public health implications of site conditions cannot be overstated. Similarly, the expertise of the Attorney General's office, in such areas as researching points of law and evaluating the strength of DEC's case, must be drawn upon early and continuously throughout this phase.
DEC will prepare for litigation either where it is deemed necessary in the first instance or where the progress of negotiations indicates that settlement discussions are no longer fruitful. Litigation will take the form of either administrative enforcement proceedings or judicial enforcement. The goals of the litigation will be shaped in the same way that negotiation postures are developed.
- Post-Result Obligations
Once an administrative order has been issued or after litigation resulting in a court-ordered cleanup has been completed, DEC must supervise the remedial work. This obligation extends not only to the construction elements of a remedial program but to a post-construction monitoring period.
Once a site is the subject of an Order on Consent or an order issued after hearing, requiring the responsible parties to undertake remedial work, primary responsibility for the site will no longer be vested in enforcement personnel. Instead, primary responsibility will rest with the Division of Solid and Hazardous waste and its personnel in the Regions. This responsibility will consist of reviewing, commenting upon and, where relevant, approving all submissions made pursuant to the document, overseeing any physical construction work required by the document, and undertaking such monitoring and maintenance as is appropriate.
However, enforcement attorneys must continue to ensure legal compliance with the terms of the order. This obligation will include overseeing the timely submission of all required documents, the posting of financial guarantees, obtaining necessary easements, etc.
One additional note on post-result obligations:
It is essential that programs involving inactive hazardous waste disposal sites be strictly monitored and that violations of orders governing such programs be strictly enforced. In order to assist departmental staff in this monitoring role, the following guidelines are adopted for such situations:
- For each hazardous waste remedial program for which DEC has monitoring responsibility, a plan is to be developed, outlining to the extent possible the activities DEC will undertake in monitoring the program. Although the plan will by necessity be flexible, the plan will give a rationality to the agency's monitoring responsibilities, the difficult problems of resource allocation will be eased, and the staff assigned to the project will have an overview of the monitoring effort. Every such plan will need to be revised and updated continually, as the remedial program proceeds.
- There must be a clear-cut allocation of duty and authority among the personnel involved. A project manager is to be assigned to each remedial program which DEC oversees; the project manager is accountable for ensuring that the program is monitored properly.
- Discussions are to be held among all personnel involved in monitoring work. The various segments of the agency overseeing order compliance must gain a sense of the entire undertaking. in this way, for example, attorneys will be better able to guide technical staff in the legal requirements of the order, and the project manager will be in a better position to direct the available resources. In addition, training needs can be assessed and addressed through these sessions. It is essential that training In sampling procedures and safety protocols be given to all members of the DEC team engaged in work requiring these skills.
- Analysis of samples is a key issue in DEC's monitoring work. Although an element of the plan and of the intra-Departmental discussions referred to above, the importance of reliable laboratory analytical data is great. Care must be taken to ensure chain-of-custody and quality control for all samples taken by the agency, not just those ostensibly related to enforcement actions. The paucity of laboratory resources makes it mandatory that this need be dealt with early in DEC's effort with respect to monitoring.
- Whenever transportation of hazardous waste is an element of a remedial program, DEC personnel are to insist that all required permits, manifests and other authorizations are obtained, both with respect to the transportation and the subsequent storage or disposal. In addition, if the transportation or disposal involves another state, the DEC staff with responsibility for the project should assure themselves that the other state knows, and approves, of the transportation or disposal; inter-state coordination and cooperation in the monitoring of hazardous waste activities are necessities, not luxuries. Finally, a DEC monitor should oversee the beginning and end of hazardous waste movement within New York State, i.e., loading and unloading of material; it may also be appropriate for an Environmental Conservation Officer to provide surveillance of the movement of the waste during its transit in New York State.
Dated: Albany, New York
December 10, 1984
Henry G. Williams
New York State Department of Environmental Conservation