Environmental and Energy: New York State Department of Environmental Conservation Issues Draft Environmental Monitoring Services Policy

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On Wednesday, February 12, 2014, the New York State Department of Environmental Conservation (DEC) issued a draft Commissioner Policy on Environmental Monitoring Services (the Policy). The proposed Policy updates DEC’s existing On-Site Environmental Monitor Policy and describes DEC policy and procedures to be followed regarding the environmental monitoring of facilities, sites or activities subject to the Environmental Conservation Law (ECL) and related regulations. For purposes of this Policy, environmental monitoring refers to monitoring services performed by individuals or firms, not environmental monitoring performed by equipment. We note that typically only facilities, sites or activities that have the potential to increase risk to public health or the environment if laws, regulations or permits are not properly enforced are subject to an added level of oversight through environmental monitoring.

The Policy clarifies instances when environmental monitors should be employed to monitor activities at regulated facilities, sites or activities, thereby providing businesses, local governments and other regulated entities a clear framework under which environmental monitoring services will be required. Examples of where environmental monitors should be employed include:

  • where environmental monitoring is required by law (e.g. commercial hazardous waste facilities which utilize secure land burial facilities as a primary disposal technique);
  • where the material being handled at the facility is of particular concern due to its characteristics or quantity;
  • where the compliance history or past practices of the regulated entity has included significant or repeated violations of applicable federal, state, or local laws or regulations, has resulted in conditions which pose a threat to public health or the environment, or indicates that significant adverse environmental or health impacts may be likely to occur; or
  • where DEC determines the regulated facility, site or regulated activity needs additional oversight due to exceptional circumstances relating to its size, throughput, or location (such as proximity to sensitive receptors or proximity to environmental justice areas) or relating to the nature of its operations.

In accordance with the Policy, all future environmental monitoring services on or after its effective date must be provided through the terms of an environmental permit, order on consent, Commissioner’s order after hearing, judicial order or brownfield cleanup agreement (BCA), not through a memorandum of understanding (MOU), memorandum of agreement (MOA), cooperative agreement, or other mechanism. Any environmental monitoring service agreements provided through an MOU, MOA, cooperative agreement, or any other mechanism besides a permit, order or BCA, that are in existence as of the date of the Policy, will be continued by the DEC in full force and effect for the length of their current terms only.

Written comments regarding this proposed Commissioner Policy will be accepted by DEC until Monday, April 14, 2014.

A copy of the proposed policy can be found on the DEC’s website at: http://www.dec.ny.gov/docs/materials_minerals_pdf/draftmonitor.pdf.

Topics:  Brownfield Properties, Contaminated Properties, Department of Environmental Conservation, Environmental Policies

Published In: Construction Updates, Energy & Utilities Updates, Environmental Updates, Toxic Torts Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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