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DEE-18: Spill Site Remediation Under Departmental Order Enforcement Policy

Commissioner Policy

The DEC Policy System
Department ID: DEE - 18
Program ID: N/A
Issuing Authority: Michael D. Zagata, Commissioner
Originating Unit: Environmental Enforcement, Compliance Assurance Bureau
Signature: Michael D. Zagata
Date: 18 December 1995
Issuance Date: 25 July 1994
Revised: 18 December 1995
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:

  1. 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.
  2. Any penalty calculations undertaken hereunder by DEC in anticipation of litigation are exempt from disclosure under the Freedom of Information Law.
  3. 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.
  4. 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.

I. Purpose and Policy

This document establishes the policies and procedures governing the Department's use of Stipulation Agreements to expedite the remediation of petroleum spills. Regional Directors or Regional Spill Engineers are authorized to sign stipulations in O&D memorandum #95-35(1), which is issued concurrently with this EGM.

The Navigation Law (NL) confers upon this Department primary responsibility among State agencies for oil spill site remediation. NL §176, 6 NYCRR Part 611,

17 NYCRR Part 32. The policy and procedures articulated herein are designed to promote the prompt abatement and remediation of petroleum discharges. Expeditious and certain response to petroleum discharges advances environmental and natural resource protection and reduces DEC staff resources needed to achieve the aforementioned goals. The stipulation agreements constitute the legal cornerstone of this program and advance the clear delineation of tasks necessary for spill response.

II. Exemption from Permitting

The Commissioner may discharge the responsibility set forth in the Navigation Law and the Environmental Conservation Law by having the Department:

  • hire a contractor to perform the remedial work required. NL §176.1; or
  • direct a discharger to cleanup and restore/remove a discharge. NL §176.2.

If the Department hires a contractor to remediate a spill site, or if a responsible party enters into a consent order or stipulation agreement with the Department, no departmental permits are required provided the following criteria are met:

  1. The activity is conducted on the property that is the site of the spill, on property that has been contaminated by the spill or on property that is under common control or which is contiguous to or physically connected with the spill site or property contaminated by the spill; and
  2. The activity satisfies all substantive technical requirements applicable to like activity conducted pursuant to a permit as determined by the Department.

A stipulation agreement or an order on consent with a responsible party must include a Corrective Action Plan which shall prescribe the work to be done, the timetable for such work and include any parameters for emissions or discharges and other substantive conditions that would otherwise have been contained in a departmental permit. Actions undertaken pursuant to an stipulation agreement or consent order represent the Department's exercise of its enforcement authority and therefore are exempt actions under the State Environmental Quality Review Act (SEQR). See 6 NYCRR §617.2(q)(1).

The legal and public necessity for this policy is set forth in Article 12 of the Navigation Law namely that the public interest demands that official control be exercised to remediate conduct which is potentially injurious to the environment. In the ordinary case, if a citizen engages in conduct which has an impact on the environment and the conduct falls under the Department's regulatory jurisdiction, the requisite control is exercised by means of a permit. In either of the two types of cases enumerated above (DEC contractor or private party), a permit is not necessary to prescribe performance standards if the criteria set forth above are met.

In the event of a spill cleanup conducted under authority of federal law, the permit exemption issue is to be resolved in accordance with federal and State law. Under the federal National Pollutant Discharge Elimination System (NPDES) program, no permit is required for a discharge which is in compliance with the instructions of the federal On-Scene Coordinator pursuant to the provisions of the National Contingency Plan (NCP). [See 40 CFR §122.3(d)]. With respect to oil spills, the NCP covers discharges of oil into the navigable waters of the United states and adjoining shorelines, or discharges which may affect natural resources belonging to, appertaining to, or under the exclusive management authority of the United States. See 40 CFR §300.2(a)(1).

III. Procedure

Stipulations will be used for cleanups conducted by responsible parties, except for very short- term, simple cleanups. Situations presenting longer term remediation obligations or oversight requirements are appropriately addressed by a long-form consent order or administrative enforcement order.

In circumstances where a stipulation agreement is authorized as prescribed herein, regional spill staff should send a letter of responsibility to the potentially responsible party, along with notification to that party's insurer, if known. This letter should be sent by certified mail, return receipt requested.

Spills with minor or insignificant environmental and no public health impacts, or which require only very short-term, simple cleanups, do not require stipulations. Some examples include tank test failures with no observed impacts, spills on concrete pads which are immediately remediated, or spills satisfactorily cleaned up by removing a small amount of contaminated soils or debris. Staff should continue to exercise discretion in ensuring the appropriate degree of oversight for these cleanups.

Spills that are expected to take several months or years (generally within the range of 3 months to 3 years) to remediate require a stipulation. Additionally, spill cleanups which may result in wastewater discharges or air emissions, should be conducted pursuant to a stipulation or long- form consent order, depending on the duration and complexity of the cleanup. Examples of spill cleanups requiring stipulations include:

  • an investigation of an underground storage tank leak,
  • groundwater remediation,
  • an extensive contaminated soil removal project, or
  • a soil remediation project using vapor extraction or bioremediation.

Spills which have caused or have the potential to cause significant environmental or public health impacts, should be referred to the Regional Attorney for negotiation of a long-form Order on Consent. Additionally, spill situations which are complex due to:

  • the source of the spill and the remediation required;
  • the actual or potential impacts;
  • the number or nature of the parties involved; or,
  • the need for assessment of penalties,

may require a long-form order. Examples include a spill which results in the relocation of nearby residents, a spill which contaminates, or has the likelihood to contaminate, a public water supply system or several private water supply wells, or a surface water spill that results in other than de minimis natural resource damages.

Stipulations should also be used in any situation in which it is necessary to document the responsible party's agreement to remediate the site, especially in cases where the party has not lived up to previous commitments. There may also be situations where a spill event may warrant the imposition of a penalty, but necessitate immediate response activities. In this situation, cleanup and removal activities can be conducted pursuant to a stipulation with a subsequent referral of an enforcement case seeking penalties to the Regional Attorney, or the entire case, remediation and penalty, may be referred.

In the event that the responsible party refuses to sign a stipulation or consent order, a PIN # should be assigned to the project, and DEC should commence remediation. The matter should be referred to either the Regional Attorney for initiation of an enforcement action or to the Attorney General for cost recovery. The Stipulation Form, as well as some model letters, are attached to this EGM.

The corrective action and remediation plans attached to the stipulation will be developed by the PRP in consultation with the Regional Spill Engineer. These plans should include all necessary steps for the investigation and remediation of the site, including milestone dates. They will also include all substantive permit Conditions such as effluent limitations, monitoring and reporting requirements. Program guidance will include more information on the Content of Corrective Action and Remediation Plans.

The Department's mandate under Article 12 of the Navigation Law to address unauthorized discharges of petroleum is a legitimate exercise of enforcement authority. Encompassed within the Department's enforcement authority is the right to direct remedial activities that would otherwise require a permit in order to protect the public health and safety and the environment.

Michael Zagata
Commissioner

Dated: December 18, 1995

Albany, New York

Attachment 1 - Stipulation Form
Attachment 2 - Form Letter

1. This memorandum from Commissioner Michael Zagata dated 18 December 1995 authorized the issuance of Stipulation Agreements for Remediation of petroleum spill sites on a statewide basis (as more fully explained in this Enforcement Guidance Memorandum.)

The body of the memorandum reads:

"Effective immediately, I authorize the implementation of the Stipulation Agreement program statewide. In order to implement this program, I authorize Regional Directors or Regional Spill Engineers to execute Stipulations in a manner consistent with the above-referenced EGM and guidance issued by the General Counsel and the Director of the Division of Spills Management:

Upon authorization by the Regional Director or Regional Spill Engineer, Regional Project Managers are authorized to approve changes to Corrective Action Plans developed pursuant to Stipulation Agreements.

This O&D Memorandum supersedes O&D Memorandum #99-22."

Attachment 1 - Stipulation Form

Spill Number:_________________

Dear [ ]:

The purpose of this letter is to obtain your commitment to cleanup and remove the discharge of petroleum which occurred at _________________, New York. As a result of an investigation undertaken by this Department, we believe that you are responsible for this discharge.

In an effort to bring about the timely and appropriate cleanup of this discharge, we have enclosed a Stipulation Agreement for your signature. This agreement delineates the work that needs to be done and a schedule for such work. This agreement also includes the required discharge or emission levels that would normally be required for this type of activity. If this agreement is signed, no separate permits will be required. This allows the remediation to start promptly without delays that may be caused by having to obtain Department permits.

By signing the Stipulation Agreement, you are not admitting that you caused the discharge or admitting liability for this discharge under Article 12 of the Navigation Law. The sole purpose of the stipulation is to effectuate the remediation of this discharge in an expeditious fashion. If you choose not to sign this agreement, the Department will hire a contractor to perform the required remediation. This will result in your being billed for the actual costs incurred by the State for this activity.

This agreement will not affect your right to pursue any claims you may have against other parties as a result of this discharge. Additionally, in the event that you are not a responsible party under Article 12 of the Navigation Law, this agreement will not prevent you from filing a claim against the New York Environmental Protection and Spill Compensation Fund.

** You should be advised that your agreement to cleanup this discharge does not affect the Department's right to pursue any claims that the Department may have against you for penalties based on violations of the Navigation Law or the Environmental Conservation Law arising out of this discharge of petroleum. However, by signing this agreement, you have not waived any defenses you may have to any such claims. **

If you choose to perform the remediation of this discharge, Please sign the attached Stipulation and return it to the undersigned. If we have not heard from you or received the signed stipulation within 14 days, we will proceed, as discussed above, to hire a contractor to perform the required remediation. If you have any questions, please contact ____________ of the Spill Response staff at ___________.

Sincerely,

Regional Spill Engineer

Region # _____

Division of Spills Management

Attachment 2 - Form Letter

New York State Department of Environmental Conservation

Stipulation Pursuant to Section 17-0303 of the environmental Conservation Law and Section 176 of the Navigation Law by:

______________________, Respondent Spill number: _____________

  1. The Department of Environmental Conservation is the agency responsible for the cleanup and removal of discharges of petroleum pursuant to Article 12 of the Navigation Law and Article 17 of the Environmental Conservation Law.
  2. Respondent has agreed to cleanup and remove a discharge of petroleum which occurred on [insert date] at [insert location] by taking the steps and according to the conditions set forth in the Corrective Action Plan attached to this stipulation.
  3. This Stipulation does not affect the Department's right to pursue any claims that the Department may have against respondent, including but not limited to, claims for alleged violations of the navigation Law or the Environmental Conservation Law. This stipulation does not affect any defenses that respondent may have to any such claims.
  4. Respondent, without admitting liability, consents to the issuance of this Stipulation, waives the right to notice and hearing with respect to the issuance and entry of this Stipulation as provided by law, and agrees to be bound by the terms of this stipulation, including any attachments thereto.
  5. This Stipulation is equivalent to an order pursuant to ECL §§17-0303 and a directive pursuant to NL §176 and is enforceable as such.
  6. The Corrective Action Plan may be modified in writing as may be agreed between the parties. The Corrective Action Plan may be modified by the Department in the same manner as a Department permit.
  7. The effective date of this Stipulation is the date it is signed by the Department.

____________________ ______________________________________________
Date Respondent's Signature*

______________________________________________
Respondent's Title (if corporation)

____________________ ______________________________________________
Date Regional Director or Regional Spills Engineer, Region ____

*NOTE: If stipulation is with a corporation, the respondent must be an official, authorized corporate representative.
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